Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (International Humanitarian Law) 9041119868, 9789041119865

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Man's Inhumanity to Man Essays on International Law in Honour of Antonio Cassese

International Humanitarian Law Series VOLUME 5 Editors-in-Chief

Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board

Professor Georges Abi-Saab H.E. Judge Ceorge H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including , • protection for victims of armed conflict and regulation of the means and methods of warfare • questions of application of the various legal regimes for the conduct of armed conflict • issues relating to the implementation of International Humanitarian Law obligations • national and international approaches to the enforcement of the law and • the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Armed Control and Disarmament Law, and International Criminal Law.

Man's Inhumanity to Man Essays on International Law in Honour of Antonio Cassese

Edited by

Lal Chand Vohrah Fausto Pocar Yvonne Featherstone Olivier Fourmy Christine Graham dohn Hocking and

Nicholas Robson

KLUWER LAW INTERNATIONAL THE I·IAG UE / LONDON / NEW YORK

Published by: Kluwer Law International P.O. Box 85889, 2508 CN The Hague, The Netherlands [email protected] http ://www.kluwerlaw .com Sold and Distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 USA Sold and Distributed in all other countries by: Turpin Distribution Services Limited Blackhorse Road Letchworth Herts SG6 1HN United Kingdom A CIP Catalogue record for this book is available from the Library of Congress

Printed on acid-free paper. Cover photo ©ANP Typeset by Steve Lambley Information Design, The Hague .

ISBN 90-411-1986-8 © 2003 Kluwer Law International Kluwer Law International incorporates the imprint of Martinu s Nijhoff Publishers This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means , electronic, mechanical, photocopying, recording or otherw ise, without the prior permis sion of the publishers.

Judge Antonio Cassese First President of the ICTY

Indisputably, what happ ened on 16 Apri/ 1993 in Ahmici has gone down in history as comprising one of the most vicious illustrations of man 's inhumanity to man. Today, the name of that small village must be added to the long list of previously unknown hamlets and towns that recall abhorrent misdeeds and make us all shudder with horror and shame: Dachau , Oradour sur Gliine, Katijn, Marzabotto, Soweto, My Lai, Sabra and Shati/a , and so many others. Prosecutor v. Kupreskic et al ., Judgem ent, 14 January 2000, Judge Cassese presiding

CONTENTS

Acknowledgement Remerciements Foreword

xv xvi xvii

Sir Ninian Stephen

Introduction Lal Chand Vohrah

1. Improving Compliance with the Laws Applicable in Armed Conflict: A Work in Progress

xix

1

George H. Aldrich

2. Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes .•.•.••.•..•.• 11 KaiAmbos

3. The ICJ Statute, the Charter and Forms of Legality Review of Security Council Decisions .............•.........................•..•.•.••.••.•.••••.••.•.•..•.•..•41 Gaetano Arangio-Ruiz

4. The Philosophy and Policy of International Criminal Justice M. CherifBassiouni

65

Contents

x

5. Truth, Justice and Amnesty

127

Mohamed Bennouna

6. Developments Under the European Convention on Human Rights Since the Late 19808 ••••....•..............•..............•.•...••............•.••.•.••.. 137 Rudolf Bernhardt

7. Serious Violations of Human Rights and Foreign States' Accountability Before Municipal Courts ..•..•.•..•...........•....••.••...•.••......... 149 Andrea Bianchi

8. The Pellegrin Ruling: Origins and Consequences

183

Lucius Caflisch

9. Responsabilite Etatique et Responsabilite Individuelle pour Violations Graves du Droit International Humanitaire

211

Luigi Condorelli

10. Community Law and European Convention on Human Rights: A Quest Cor Coordination ........................•.•............................................. 221 Benedetto Conforti

11. Humanitarian In tervention (NATO Action against the Federal Republic oC Yugoslavia in 1999) ..........•.•...•........•.............•......•..233 Ylad imir-Dj uro Degan

12. Sur les Rapports entre Sujets et "Acteurs" en Droit International Contemporain 261 Pierre-Marie Dupuy

13. National Jurisdiction over Extraterritorial Crimes within the Framework of International Complementarity Albin Ese r

279

Contents

xi

14. Some Aspects of Immunity from Criminal Jurisdiction of the State and its Officials ..••.....•.•.•.•...........•..••.•..•••.•••.....••.•...•..••......••..•..•.•.... 297 Hazel Fox

15. In Extremis: Are There Legal Principles Applicable to the Illegal Use of Force? •... 309 Thomas M. Franck

16. Inherent Powers of International Courts and Tribunals

353

Paola Gaeta

17. Is a State Specially Affected when its Nationals' Human Rights are Infringed?

373

Giorgio Gaja

18. Inter-state Responsibility for Compliance with Human Rights Obligations

383

Louis Henkin

19. Les Exceptions Prelhninaires it la Lumiere de la Jurisprudence de la Cour Internationale de Justice (1994.2000)

399

Geza Herczegb

20. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Building an Effective Human Rights Accountability Mechanism; Work in Progress

423

Pierre-Henri 1mbert and Mark Kelly

21. The Work of the International Bar

443

Sir Robert Jennings

22. "Whose Intent is it Anyway?" Genocide and the Intent to Destroy a Group ..•...•.••.•••...•.....•...•••.••.••••••.•••.•.•.••...•.•.•.•••.•.•.•••..••••••.•.••.••• 467 John R.WD. Jones

Contents

xii

23. Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal 481 Frits Kalshoven

24. Is There a Hierarchy of Crimes in International Law?

511

Richard May and Marieke Wierda

25. Cassese's Tadic and the Law of Non-International Armed Conflicts

533

Theodor Meron

26. Trial Without Undue Delay Before the International Criminal Tribunals

539

Erik M¢se and Cecile Aptel

27. Topics Within the Sphere of Sentencing in International Criminal Law

567

Florence Ndepele Mwachande Mumba

28. International Peremptory Norms (Jus Cogens) and International Humanitarian Law

595

Rafael Nieto-Navia

29. Dialogue For Reconciliation: A Supplementary Step For Truth Commissions

641

Francisco Orrego Vicuna

30. Le Nouveau Projet de la C.D.I. sur la Responsabilite de I'Etat pour Fait Internationalement Illicite: Requiem pour Ie Crime?

655

Alain Pellet

31. The Rule of International Humanitarian Jurisprudence in Redressing Crimes of Sexual Violence Navanethem Pillay

685

Contents

32. Truth and Consequences or Truth and Reconciliation?

xiii

693

M.C.W Pinto

33. Ruman Rights under the International Covenant on Civil and Political Rights and Armed Conflicts

729

Fausto Pocar

34. The Use of Friendly Settlements in the Inter-American Ruman Rights System

741

W Michael Reisman and Susan Benes ch

35. La Condition des Victimes de Crimes de Droit International

771

Francois Rigaux

36. Apport de la Pratique du Tribunal Penal International pour I'ex- Yougoslavie it la Protection des Droits Fondamentaux de la Personne Humaine

791

Almira Rodrigues

37. The Setting of International Standards in Genomics

827

Emmanuel Roucoun as

38. Interpreting the Statutes of the ad hoc Tribunals

847

William A. Schabas

39. Policy-Oriented Law in the International Criminal Tribunal for the Former Yugoslavia 889 Moham ed Shahabuddeen

40. Poland and the North Atlantic AUiance in 1991..............................•899 Krzysziof Skubi szewski

41. The Contribution of the Federal Republic of Germany and the German Ldnder to the work of the ICTY Peter Wilkitzkil

923

Contents

xiv

42. Beyond Kosovo: The United Nations and Humanitarian Intervention

935

RaLph ZackLin

43. Human Rights Protection vs, Non-Intervention: A Perennial Conflict?

953

KarL Zemanek

44. Implementing the Statute of the International Criminal Court: The German Example

977

Andreas Zimmermann

Index

995

ACKNOWLEDGEMENT

I would like to express the full appreciation of the Editorial Board for the painstaking secretarial work of Ms. Jacqueline Langdon and Ms. Petra Jacoby in the preparation and formatting of this book. Their able assistance was rendered above and beyond their daily workload. Also, I would like to thank my secretary Ms. Pauline van Gulik for her cheerful co-operation with all concerned. Judge LiC. Vohrah

REMERCIEMENTS

J'aimerais remercier au nom du Comite editorial Madame Jacqueline Langdon et Madame Petra Jacoby pour avoir assure Ie travail de secretariat ainsi que la preparation et Ie formatage de cet ouvrage. Elles nous ont foumi leur aide competente bien au-dela de leurs charges quotidiennes. Aussi, je voudrais remercier rna secretaire, Madame Pauline van Gulik pour son aimable cooperation. luge LiC. Vohrah

FOREWORD Sir Ninian Stephen

It was at a meeting of 11 judges and academics from as many legal systems and coming from all five continents that I first met Nino Cassese. We had gathered at the behest of the Security Council in borrowed quarters at the Peace Palace in The Hague to begin the task of creating an ad hoc international criminal tribunal for the former Yugoslavia, doing so in an international atmosphere of deep scepticism with many around the world feeling that its creation was no more than an empty gesture on the part of the Security Council. At that first meeting of judges our initial task was to select a president and, by good fortune , the role fell to Nino Cassese. I had read in translation Nino 's remarkable work, Violence and Law in the Modern Age, but otherwise he was unknown to me. I then little knew, but soon learned, of the human dynamo concealed within this professor from Florence. That the Tribunal has proved, over the years and against substantial odds, to be an effective instrument of justice and a model of the dispensing of even-handed justice has been in large measure thanks to Nino Cassese . When we thus first met our Tribunal possessed no building, no library, no prosecution system and, of course, no State or police force of its own to enforce any orders it might make. It had only a staff of two or three. It seemed an unlikely instrument, despite the Security Council Statute which had created it, with which to impose the rule of law within the turmoil that was then the former Yugoslavia. The truly Herculean task which Nino undertook has borne remarkable fruit over the intervening years. More than that, as we got to know our President we grew to appreciate his many great human qualities. My four years on the Tribunal under his leadership were years of happy endeavour thanks to him. He seemed instinctively to know when to offer support and when to leave well alone. He was both a tactful friend and an example of energy and wisdom .

L.c. Vohrah et al. (eds.), Man 's Inhumanity to Man , xvii-xviii ©2003 Kluwer Law International. Printed in the Netherland s.

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Foreword

It is most fitting that by this collection of essays their distinguished authors should pay tribute to a man who has done so much, so modestly, to advance the cause of international criminal law, doing so to the great benefit of mankind.

INTRODUCTION Lat Chand Vohrah

Judge Antonio Cassese, a distinguished international lawyer and scholar, retired from the International Criminal Tribunal for the former Yugoslavia on 28 January 2000. An account of the man and his achievements is indeed appropriate in recognition of the mammoth task he undertook in launching an institution which has gained acceptance over the years since its inception in November 1993 for its impartial proceedings, and for the clear signal to the world that no impunity will be granted for man's inhumanity to man by the international community. Nino, as Cassese is affectionately and universally known, was born on I January 1937 in Atripalda, in south-western Italy. He took his law degree at the University of Pisa and then proceeded to do a postgraduate course at the Graduate Institute of International Studies, Geneva. He then became Professor of International Law at his Alma Mater, Pisa University, and also taught at Florence University and the European University Institute. He also became a Visiting Fellow of All Souls College, Oxford University and Visiting Professor for the Graduate Institute of International Studies in Geneva, Univers ity of Paris, College de France, and the Universitie s of Cambridge and Oxford. In addition he became a delegate of Italy to the United Nations Conference on Human Rights (1968), United Nations Commission on Human Rights (1972-1975) ; United Nations General Assembly, Legal Committee (1974, 1975, 1978); Conference of Government Experts on Humanitarian Law of Armed Conflicts (1st 1971, 2nd 1972); Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974-1977) ; United Nations World Conference on Racial Discrimination (1978); Interdepartmental Committee on Human Rights , Italian Ministry of Foreign Affairs (1979-1983); Human Rights Commis sion, appointed by the Italian Prime Minister (1984-1996); Council of Europe Steering Committee for Human Rights (1984-1988 ; Chairman 1987-1988); Council of

L.c. Vohrah et al. (eds.), Man's Inhumanity to Man, xix-xxviii ©2003 Kluwer Law International. Printed in the Netherlands .

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Europe Committee for the Prevention of Torture (member and President 19891993). Amidst his multifarious activities he found time to write several books and articles including Diritto internazionale bellico moderno (Modem International Law of Warfare) (1973); The New Humanitarian Law of Armed Conflict (Ed., Vol. I 1979, Vol. II 1980); International Law in a Divided World (1986); Legal Restraints on the Use of Force 40 Years After the U.N. Charter (ed., 1986); Change and Stability in International Law-Making (co-ed., 1989); International Crimes ofStates (co-ed ., 1989); Violence and Law in the Modern Age (1988) ; Terrorism, Law and Politics (1989); Human Rights in a Changing World (1990) ; The International Fight Against Torture (ed., 1991); Human Rights and the European Community (co-ed., 1991); B. V.A. ROling, The Tokyo Trial and Beyond (ed., 1993). Little wonder then that his reputation had preceded him when the 11 founding Judges of the Tribunal arrived at the Kurhaus Hotel in Scheveningen, The Hague, on 16 November 1993. Thus, when the Judges had an informal dinner together with their spouses that evening, a consensus had developed for Nino to lead the Tribunal. After the formal induction of the 11 founding Judges on 17 November 1993 in the Japanese Room of the Peace Palace, a formal meeting was held the following day in the meeting room of the Permanent Court of Arbitration next door, when by acclamation Nino was elected the first president of the first United Nations criminal court, five decades after the Nuremberg and Tokyo Tribunals . In his capacity as President, Nino had the task of supervising the promulgation of the Rules of Procedure and Evidence to govern the proceedings of the newly-established Hague Tribunal. The general feeling of many countries at that time was that it was a non-starter, having regard to the absence of any logistical support and the uncertainty as to where the funds were to come from for the proper functioning of a Court of Law. Nino, with his indefatigable capacity for work (aided perhaps by his need for very little sleep) and his intense desire to see the Tribunal succeed in the face of so much cynicism, visited several capitals and agencies to gamer support in the form of equipment, seconded personnel and proper premises for the foundation of a functioning institution. In the first year of the Tribunal's existence , in the absence of a regular budget, he alone amongst the Judges was fully resident in The Hague to attend to the nuts and bolts for the physical shape of the Tribunal. Some of the practical difficulties he faced are reflected in his first landmark address to the General Assembly of the United Nations on 14 November 1994.' They

I

This speech has to be read in order to appreciate the full extent of the difficulties .

Introduction

xxi

relate to the absence of any courtroom, accompan ying detention centre and security officers; the absence of the Prosecutor; the lack of a police force with its complement of investigators for the investigation of crimes committed in locations far away from the seat of the Tribunal and involving a multiplicity of victims and perpetrators; the scarcity of forensic evidence on which to work ; the dispersal of potential witnesse s in various parts of the world; and the complete absence of any investment of the power of arrest, search or seizure in the Office of the Prosecutor. Most of the imponderables that he faced were eventually overcome in the four years that he led the Tribunal. For a lesser man the burden would have wreaked havoc on his health, physical and mental, but Nino found solace in the support he received from his wife Sylvia and his two children. He also found solace in the paintings of Vermeer, many of whose works were on display at the Maurit shuis, The Hague, during the period I March to 2 June 1996, when there was an internation al exhibition of Johann es Vermeer's paintings. He would view the paintings for hours on end and come out refreshed and ready for work again. This was also used as the theme of a BBC documentary about Nino and his work at the Tribunal. Among the qualities that have distingui shed him in his work as President of the Tribunal are his humility, his stubbornness and his sense of humour. His humility was well-known. All the time he officiated as Judge at the ICTY, The Hague, his means of transportation was invariably his bicycle which he used even to attend official receptions. He would seldom summon his secretary to his chambers and would go to her for his official matters to be attended to. Quite often he would be seen sitting beside his secretary in her office dictating letters to her or running through her finished correspondence. Also, he would be seen often in the rooms of the law clerks and interns having serious discussions with them. He also had the habit of dropping in on the Judge s in their chambers to discuss their assignments. His modesty is hard to emulate. His stubbornness or determination comes out best when he is engaged in hostile encounters with state authorities. In one incident the Strasbourg Committee of Inspectors, of which he was a member, inspected the police headquarters of a large country. The inspectors presented themselves at 9.30 p.m. one evening to the policeman on guard and asked to speak to the officer on duty in order to conduct their inspection. After various telephone calls the policeman apologized with the intimation that the officer in charge was out of town. Nino pointed out that his Committee had apprised the Ministry of the Interior of their visit and produced his international identity card and special document describin g all their powers in the language of that country, includ ing the power to start an inspection any time they chose . The policeman however refused to budge and asked them to return the next

xxii

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morning. Nino then told the policeman that they would not move until they had been given free access to the building . They then settled down in a small room adjoining the guardroom whence he was able to telephone officials in various ministries to protest and demand immediate assistance for their inspection. This exchange continued until 3.30 a.m. the next morning when the officer in charge arrived and allowed them to get on with their work unhindered. Another incident occurred when Nino was a member of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. In the 1970s he made a strong statement in the Sub-Commission on the gross violations of human rights in a Latin American country at the hands of the military dictatorship. He drafted and proposed, together with the French expert, a resolution that urged the international community to take action to stop the egregious violations that were occurring in that country. When the ambassador of that country learnt of the circulation of the draft resolution at the United Nations he approached both the co-movers of the resolution to withdraw it. They both refused to comply and were threatened with public attacks . In particular, Nino was warned that he would be prevented from being re-elected to membership in the Sub-Commission. Both the co-movers refused to withdraw the resolution. When the draft was tabled and approved by a narrow margin Nino, as he had anticipated, suffered the ire of the ambassador by not being re-elected to the Sub-Commission. Nino could laugh at himself and was not adverse to being branded the absentminded professor. He was particularly amused when his secretary related a joke which went rather like this: A professor was walking down the corridor to his office when he met a colleague. They spoke for a while and as the professor turned to leave , he asked his colleague: "Which direction was I coming from when you saw me?" His colleague pointed the way. "Oh good," the absent -minded professor said, "that means I've had my lunch!" Nino could also laugh at himself. When his computer instructor at the Tribunal despaired of ever being able to teach Nino how to use his computer and exclaimed, "You can't teach an old dog new tricks" . Nino found delight in referring to himself as "an old dog" thereafter. In this short introduction, it should be mentioned that Nino resigned from the Strasbourg Committee on Torture in 1993 because he could no longer absorb all the suffering and degradation he witnessed during his inspections. Later that year in pursuance of his innate desire to further the cause of international humanitarian law, he became a Judge of the Tribunal to mete out justice to those who inflicted such great pain and suffering in the former Yugoslavia. He fulfilled this task for six years. Whilst he was physically associated with, and after his departure from, the Tribunal, his career was crowned with several awards . In 1995 he won the Man for

Introduction

xxiii

Peace Award from the Peace Foundation, Rome & New York; in 1997 the Robert G. Storey International Award for Leadership from the Southwestern Legal Foundation , Dallas , Texas; and in 1998 he was awarded a Doctorate iuris honoris causa by the Erasmus University of Rotterdam and by the University of Paris . Upon taking up office in the Tribunal Nino made time to add more publications to his name : Prohibition of Torture and Inhuman and Degrading Treatment or Punishment (1993) ; Self-Determination of Peoples, A Legal Reappraisal (1995); Inhuman States -Imprisonment; Detention and Torture in Europe Today (1996) ; International Law (2001) . His intellectual and physical stamina is indeed proverbial.

INTRODUCTION Lal Chand Vohrah

Le J uge Antonio Cassese, juriste international et universitaire de renom , a quitte Ie Tribunal Penal International pour l'ex-Yougoslavie Ie 28 janvier 2000. II est particulierernent approprie d'evoquer rapidement l'homme et ce qu'il a accompli, en temoignage de la tache elephantesque qu'il entreprit en lancant une institution qui, depuis sa creation en novembre 1993, a gagne au fil des ans d'etre reconnue pour I'irnpartialite de ses procedures et pour Ie message qu'elle porte a1'attention du monde, a savoir que la communaute internationale ne tolerera aucune impunite lorsquc l'homme fait preuve d'Inhumanite envers l'homme. Nino, comme Cassese est connu universellement et affectueusement, est ne Ie ler janvier 1937 aAtripalda, dans Ie sud-ouest de I' Italie. II obtint son dipl6me de droit a l'Universite de Pise et poursuivit ensuite ses etude s superieures a I' Institut universitaire des hautes etudes internationales de Geneve, II devint ensuite Professeur de droit international asa chere Universite de Pise, et enseigna egalement a l'Universite de Florence et a l'Institut universitaire europeen . Visiting Fellow au All Souls College de l'Universite d'Oxford, et Profe sseur associe a I'Institut universitaire des hautes etudes internat ionales de Geneve , a l'Universite de Paris, au College de France ainsi qu'aux Universites de Cambridge et d'Oxford, il fut en outre l'un des delegues de l'Italie ala Conference des Nations Unies sur les droits de 1'homme (1968) ; a la Commission des droits de 1'homme des Nations Unies (1972 a 1975); a la Commission juridique de l' Assemblee generale des Nations Unies (1974, 1975 et 1978); ala Conference des experts gouvernementaux sur le droit humanitaire des conflits acmes (1971 et 1972); ala Conference diplomatique de Geneve sur la reaffirmation et le developpement du droit international humanitaire applicable dans les conflits acmes (1974 a 1977); a la Conference mondiale des Nations Unies sur la discrimination raciale (1978); au Comite interdepartemental

Introduction

xxv

des droits de I'homme du Ministere italien des affaires etrangeres (1979 a 1983); a la Commission des droits de I'homme, ou i1 fut nomme par Ie Premier Ministre italien (1984 a 1996); au Cornite directeur du Conseil de l'Europe pour les droits de I'homme (1984 a 1988), qu'il a preside en 1987 et 1988; au Cornite pour la Prevention de la Torture du Conseil de I'Europe (membre et President de 1989 a 1993) . Au-dela de ses activites multiples, il trouva Ie temps d'ecrire de nornbreux articles et ouvrages dont Diritto internazionale bellico moderno (1973); The New Humanitarian Law of Armed Conflict (Ed., Vol. I 1979, Vol. II 1980); International Law in a Divided World (1986); Legal Restraints on the Use of Force 40 Years After the U'N. Charter (ed., 1986); Change and Stability in International Law-Making (co-ed., 1989); International Crimes of States (co-ed., 1989); Violence and Law in the Modern Age (1988); Terrorism, Law and Politics (1989); Human Rights in a Changing World (1990); The International Fight Against Torture (ed., 1991); Human Rights and the European Community (co-ed., 1991); B. v.A. Roling, The Tokyo Trial and Beyond (ed., 1993). Rien d' etonnant ace que sa reputation I' ait precede lorsque les II juges fondateurs du Tribunal arriverent a l'hotel Kurhaus aScheveningen (La Haye) Ie 16 novembre 1993. Ainsi, lorsque les juges et leurs conjoints eurent un diner informel ce soir-la, un consensus se forma pour que Nino soit a la tete du Tribunal. Le lendemain de leur installation formelle, qui eut lieu Ie 17 novembre 1993 dans la salle japonaise du Palais de la Paix, les onze juges se reunirent a la Cour permanente d' arbitrage voisine et elurent Nino , par acclamation, premier President du premier Tribunal penal des Nations Unies, cinq decennies apres les Tribunaux de Nuremberg et Tokyo . En sa qualite de President, Nino eut la tache de superviser la promulgation du Reglement de Procedure et de Preuve gouvernant la procedure du Tribunal nouvellement installe a La Haye. A l'epoque, Ie sentiment general de nornbreux pays etait que tout ceci n'etait qu'un faux-depart, compte-tenu de I'absence de soutien logistique et de I' incertitude pesant sur I'origine des fonds qui permettraient au Tribunal de fonctionner convenablement. Nino, acme de son inepuisable capacite de travail (peut-etre aide en cela par un tres faible besoin de sommeil) et de son desir intense de voir Ie Tribunal reussir face a tant de cynisme, fit la tournee de plusieurs capitales et organisations pour obtenir des contributions, sous forme d'equipement, de personnel detache et de locaux appropries, contributions essentie lies au fonctionnement de toute institution. Au cours de la premiere annee du Tribunal, en I'absence d'un budget regulier, il fut Ie seul juge a resider en permanence a La Haye pour s'assurer que Ie Tribunal se mettait en place comme il convenait. Dans son premier rapport historique, a l' Assernblee generale des Na-

xxvi

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tions Unies Ie 14 novembre 1994,' il fit part de certaines des difficultes pratiques rencontrees. Elles tenaient a I'absence de salle d'audience, de centre de detention et d'officiers de securite; a l'absence de Procureur; a l'absence d'une force de police, comprenant des enqueteurs charges d'enqueter sur les crimes commis en des lieux eloignes du siege du Tribunal et mettant en cause une multiplicite de victimes et d' auteurs; au petit nombre d' elements de preuve sur lesquels travailler; a la dispersion des temoins potentiels en diverses parties du globe; et a l'absence de tout pouvoir du bureau du Procureur de proceder a des arrestations, a des perquisitions ou a des saisies . La plupart des imponderables auxquels il fut confronte furent en fin de compte surmontes durant les quatre annees qu 'il passa a la tete du Tribunal. Un tel fardeau aurait fait des ravages sur la sante mentale ou physique de tout autre que lui, mais Nino trouva du reconfort dans Ie soutien qu'il recut de sa femme Sylvia et de ses deux enfants. II trouva egalement du reconfort dans les peintures de Vermeer, dont beaucoup furent exposees au Mauritshuis a La Haye , du ler mars au 2 juin 1996, lors d'une exposition internationale des eeuvres de Johannes Vermeer. II allait admirer ces peintures pendant des heures et en ressortait revigore et de nouveau pret atravailler. Ce fut egalement Ie theme d'un documentaire de la BBC sur Nino et son travail au Tribunal. Dans son travail de President du Tribunal, il s' est notamment distingue par son humilite, son obstination et son sens de l'hurnour, Son humilite est notoire. Tout au long de son mandat de juge au TPIY a La Haye, son moyen de transport fut invariablement la bicyclette, qu'il utilisait meme pour se rendre aux receptions officielles. II demandait rarement a sa secretaire de se deplacer jusqu' a son bureau mais se rendait lui-meme aupres d' elle pour traiter des questions officielles. On l' a souvent vu assis a cote de sa secretaire dans Ie bureau de celle-ci, dictant des lettres ou relisant la correspondance qu'elle venait de terminer. On le voyait aussi souvent dans les bureaux des assistants juridiques et des stagiaires, avec lesquels il avait des discussions serieuses. II avait egalement l'habitude d'aller voir les juges dans leurs bureaux pour discuter de leurs taches . Sa modes tie est difficile a egaler, Son obstination ou sa determination se manifestent au mieux lorsqu'il se trouve en but a l'hostilite d' autorites etatiques. Par exemple, le Comite des Inspecteurs de la Cour de Strasbourg, dont il etait membre, fut charge d' inspecter Ie quartier general

1

II faut lire ce discours pour apprecier pleinement ses difficultes .

Introduction

xxvii

de la Police d' un grand pays . Les inspecteurs se presenterent un soir, a neuf heures et demi, au policier de garde et lui demanderent de parler a I'officier de permanence afin de proceder a I'inspection. Apres divers appels telephoniques, Ie policier s' excusa en disant que l' officier de permanence n' etait pas en ville. Nino souligna que son Comite avait avise Ie Ministre de I'interieur de leur visite et produisit sa carte d'identite intemationale ainsi qu'un document special decrivant, dans la langue du pays concerne, tous les pouvoirs dont il disposait, y compris Ie pouvoir de declencher une inspection a tout moment juge opportun. Cependant, Ie policier refusa de ceder et leur demanda de revenir Ie lendemain matin . Nino dit alors aux policiers qu'ils ne bougeraient pas avant d'avoir obtenu libre acces au batiment. Puis ils s'mstallerent dans une petite piece a cote du poste de garde, d'ou Nino put telephoner a des responsables de divers ministeres pour protester et leur demander une assistance immediate pour I'inspection. Ces echanges continuerent jusqu'a trois heures et demi du matin, lorsque l' officier de permanence arriva et les autorisa a poursuivre leur travail sans entrave. Un autre incident survint alors que Nino etait membre de la Sous-commission des Nations Unies pour la prevention de la discrimination et la protection des minorites, Dans les annees 70, il fit une declaration forte devant la Sous-commission sur les violations graves des droits de I'homme commises dans un pays d' Amerique latine aux mains d'une dictature militaire. En compagnie de I'expert francais, il prepara et proposa une resolution invitant la cornmunaute intemationale a prendre des mesures pour faire cesser les violations patentes dans ce pays. Lorsque I'ambassadeur du pays en question apprit la diffusion du projet de resolution aux Nations Unies, il prit contact avec les deux co-auteurs de la resolution pour qu'ils la retirent. Tous deux refuserent d'acceder a cette demande et firent I'objet de menaces publiques. En particulier, Nino fut averti qu' on empecherait sa reelection comme membre de la Sous-commission. Les deux co-auteurs refuserent de retirer la resolution. Lorsque Ie projet fut examine puis approuve a une etroite majorite, Nino, victime de I'ire de I'ambassadeur, ne fut pas reelu a la Sons-commission, comme ill'avait escompte. Nino a Ie sens de l'auto-derision. II ne craignait pas d'etre appele Ie professeur distrait. Cela I'amusa particulierement lorsque sa secretaire lui fit part de la plaisanterie suivante. Un professeur marche dans un couloir lorsqu'il rencontre un collegue. I1sdiscutent un moment et, avant de s' eloigner, Ie professeur demande a son collegue: "je venais d'ou quand tu m'as vu"? Son collegue lui montre la direction. "Ah bon" dit Ie professeur distrait, "ca veut dire que j 'ai deja dejeune"! Nino pouvait egalernent se moquer de lui-meme. Celui qui s' occupait, au Tribunal, de la formation en informatique desesperant d'etre jamais capable d'apprendre a Nino comment utiliser son ordinateur, s'etant exclame "on n'apprend pas a un vieux

xxviii

Introduction

chien a faire de nouveaux tours", Nino prit plaisir a parler ensuite de lui-meme comme du "vieux chien". Dans cette breve introduction, il convient de mentionner que Nino a demissionne du Comite de la Cour de Strasbourg sur la Torture, en 1993, parce qu'il ne pouvait plus endurer la souffrance et l'avilissement qu'il observait lors de ces inspections. Un peu plus tard la meme annee, toujours en but a son desir inne de promouvoir la cause du droit international humanitaire, il devint juge au Tribunal pour porter Ie bras de la justice sur ceux qui infligerent tant de grandes douleurs et de grandes souffrances en ex- Yougoslavie. II remplit cette tache pendant six ans. Tant pendant sa presence au sein du Tribunal qu' apres son depart, sa carriere fut couronnee de nombreuses distinctions. En 1995, il recut Ie Manfor Peace Award de la Peace Foundation , Rome et New York; en 1997, Ie Robert G. Storey International Award for Leadership from the Southwestern Legal Foundation , Dallas, Texas; eten 1998, il fut recu Docteur honoris causa en droit al'Universite Erasmus de Rotterdam ainsi qu'a l'Universite de Paris . Tout en exercant ses fonctions au Tribunal, Nino trouva Ie temps d'ajouter encore des publications a son palmares: Prohibition of Torture and Inhuman and Degrading Treatment or Punishment (1993); Self-Determination ofPeoples, A Legal Reappraisal (1995); Inhuman States-Imprisonment; Detention and Torture in Eu rope Today (1996); International Law (2001) . Son energie physique et sa vitalite intellectuelle sont, veritablement, legendaires.

1

IMPROVING COMPLIANCE WITH THE LAWS APPLICABLE IN ARMED CONFLICT: A WORK IN PROGRESS George H. Aldrich

I. DEFINING THE PROBLEM Improving compliance with the laws applicable in armed conflicts has long been an important humanitarian objective, and by the end of the twentieth century, inadequate compliance had become the most evident defect of international humanitarian law. After the expansion of the substantive law by means of the two Geneva Protocols of 1977,1 non-compliance with the law became a far more significant problem than the limitations of the substantive law itself. A decade ago, in my inaugural address as Professor of International Humanitarian Law at Leiden University, I addressed this problem and identified three factors that I considered responsible for most instances of non-compliance with the law.' Those factors were , first, ignorance of the law; second, skepticism and cynicism about the law engendered by the widespread belief that compliance cannot effectively be obtained through coercion and that violations cannot effectively be punished; and third, the absence of effective monitoring, fact-finding, and dispute settlement mechani sms.

I

2

Protocol Additional to the Geneva Conventions of 12 Aug 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 Dec 1977, 1125 UNTS 3 (hereinafter Protocol I), and Protocol Additional to the Geneva Conventions of 12 Aug 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts opened for signature 12 Dec 1977, 1125 UNTS 609 (hereinafter Protocol II). Address of 13 Nov 1990, 'Compliance with Internat ional Humanitarian Law', reprinted in Internati onal Review ofthe Red Cross, No. 282, May-June 1991 at 294.

L.c. Vohrah et al. (eds.), Man 's Inhumanity to Man , 1-10 ©2003 Kluwer Law International. Printed in the Netherlands .

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The armed conflicts that we have seen in the years since my inaugural address, both international and non-international , have continued to demonstrate the relevance of those factors, while adding the most unfortunate factor of ethnic hatred; but these recent conflicts have also given rise to some developments that have begun to address the skepticism that violations cannot effectively be punished. These developments give hope that compliance with internation al humanitarian law may ultimately be improved. The purpose of this article is to examine those positive development s, assess their prospects in the early twenty-first century, and consider any other means to improve compliance with the law.'

II. PROSECUTING WAR CRIMES The recent positive developments have come from what I would have thought was the least likely source - the prosecution and punishment of persons accused of committing serious violations of international humanitarian law. As I indicated in that address ten years ago, the restraints upon such prosecution and punishment are inherent in the structure used by the law. The repression of breaches of the 1949 Geneva Conventions and of the 1977 Protocol I is stated by those treaties to be the responsibility, not only of the parties to the conflict, but of all parties to the treaties.' Persons accused of grave breaches of these treaties are required either to be prosecuted by a party having juri sdiction over them or to be handed over to another party for prosecution." Experience suggests, however, that, except for wars that end with the total defeat of one party, such as the Second World War, virtually all punishment for war crimes rests in the hands of the party whose nationals are the accused and that such parties often fail to note or prosecute violations of the law that are apparent to their enemies. Doubtless the competent authorities are concerned with the morale of their personnel to the point where they are reluctant to punish what may be seen from

3

4

5

Parts of this article appeared in different forms in my inaugur al address at Leiden, ibid., and in my articl e, 'The Laws of War on Land ' , in 94 Ameri can Journal of International La w 42 (2000) . Article I common to all four Geneva Conventions, 12Aug 1949,75 UNTS 970, 971 , 972 and 973, and to Proto col I, See, for example, Article s 146 and 147 of the 1949 Geneva Convention on the Protection of Civilian Persons in TIme of War (Geneva Convention IV).

Improving Compliance with the Laws Applicable in Armed Conflict

3

their nationalistic perspectives as excesses of zeal in time of war. It is certainly not irrelevant in this connection that virtually all nations in the past century have been quick to exploit modem means of mass communication for propaganda and to control the flow of information to their people, leading to what Professor Julius Stone called the 'nationalization of truth' .6 An enemy quickly becomes demonized in the national consciousness; his war aims are seen as depraved and his soldiers as brutal and bloodthirsty. In such an atmosphere, respect for international humanitarian law suffers, and violations by one side, both real and imagined, are echoed by violations by the other side. While the same restraints do not operate to deter punishment by a captor of prisoners of war who are accused of war crimes, there are other practical restraints that make such punishment rare. First, the captor frequently lacks adequate information during the hostilities to allege the culpability of particular prisoners and generally will find it difficult, if not impossible, to produce the witnesses or other evidence necessary for conviction. In addition, parties to an armed conflict are understandably reluctant to prosecute and punish prisoners of war for fear that the enemy will see such action as unlawful treatment of its captured personnel and, as a result, will take reprisals against it, perhaps even against the prisoners it holds. Ten years ago, when I thus outlined the evident shortcomings of the present system for the prosecution and punishment of war crimes, I did not suggest any ways to improve that system. While the establishment of an international tribunal for the trial of war crimes was always conceivable, I did not believe that it would be politically acceptable to many, if any, governments. Certainly, aside from the unique experience of the tribunals created by the victors after the Second World War, there was no precedent for such an institution, and I was well aware of the military requirements and political sensitivities that caused nations that stationed units of their armed forces in the territory of other nations to insist upon status-offorces agreements that severely limited the jurisdiction of the host nation over any criminal offences committed by members ofthose armed forces. While an international criminal court is not the same as a court of a host nation, similar sensitivities and requirements would likely be felt by any nation that found the members of its armed forces subject to the criminal jurisdiction of such an international court . I did not, of course, foresee the terrible events in the territory of the former Yugoslavia and in Rwanda that led the United Nations Security Council to estab-

6

Julius Stone, Legal Controls ofInternational Conflict, (Maitland Publications Pty Ltd, Sydney, 1954), pp. 318-323 .

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lish international criminal tribunals to prosecute and try war crimes, crimes against humanity, and genocide occurring in the armed conflicts there.' Nor could I have foreseen how the largely positive reaction to the work of those two tribunals of limited jurisdiction made it possible for interested nations to negotiate a treaty, the Rome Convention, for the establishment of a permanent international criminal court of general jurisdiction. 8 While it remains uncertain whether the new court to be established by the Rome Convention will be accepted by all nations, it certainly should increase the probability that serious violations of international humanitarian law will be prosecuted in the future . Apart from any trials held by the international court, its mere existence should spur trials by national courts . On the other hand, if the new court is not accepted universally, it may well become a source of political controversy, given that the Rome Convention asserts the court's jurisdiction over all persons accused of such crimes in the territory of a state party, including nationals of nations not party to the Convention ." That is an extraordinary indeed unprecedented - assertion , and efforts to enforce it could have a disastrous effect upon the future acceptability of international criminal proceedings. In any event, the new court will always have to be careful to avoid inciting opposition on political grounds, which may be particularly difficult when it acts in the context of non-international armed conflicts. For example, the prosecution and trial by the court of governmental officials for alleged crimes in dealing with their own nationals during a civil war is bound to be politically hazardous.

III. EDUCATING THE PEOPLE

Under each of the treaties in which international humanitarian law is codified, the responsibility for dissemination of knowledge of the law rests with the states party to the treaty. In Geneva Protocol I, for example, this responsibility is stated in the following terms:

7

8

9

International Criminal Tribunal for the former Yugoslavia, SC Res. 827, UN SCOR, 48th Sess., Res. & Dec., at 29, UN Doc. SIINF/49 (1993); International Criminal Tribunal for Rwanda, SC Res. 955, UN SCOR, 49th Sess., Res. & Dec., at IS UN Doc. SIINF/50 (1994) . Rome Statute of the International Criminal Court, 17 lui 1998, UN Doc. AlCONF.183/9 (1998) (ICC Statute). See Articles 12 and 13 of the ICC Statute.

Improving Complian ce with the Laws Applicable in Armed Conflict

5

The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances. 10 The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population , so that those instruments may become known to the armed forces and to the civilian population. I I Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof. " Educating the members of the armed forces about the requirements of international humanitarian law is, of course, fundamental to achieving better compliance with the law. While it may be assumed that all national armed forces have training programs in the law, it cannot be assumed that all such programs are comprehensive and effective, particularly with the rank and file. As much of the world - the most economically developed part- moves toward professional armed forces and away from conscription of citizens, it certainly should be possible to provide all members of these armed forces with adequate understanding of the law. There can be little doubt, even today, that members of the armed forces, on the average, know more about the requirements of international humanitarian law than do members of the civilian population . Governments simply have not taken seriously their responsibility to educate civilians in the fundamental s of the law. One must, in fairness, recognize that governments face many other educational priorities that understandably seem more important. In the United States there is an additional problem arising from the fact that the Federal Government has the responsibility under the treaties, but the 50 states and thousands of counties and local school district s are responsible for education under the United States Constitution. News media reports of the work of the United Nations Tribunals for the former Yugoslavia and for Rwanda have clearly sparked public interest in international humanitarian law, but more is needed to fan that spark and take advantage of it.

10

Article 1, para . 1.

" Article 83, para . 1. 12

Ibid., para. 2.

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The task of conveying the essential elements of the law is not easy . The relevant rules are contained in some hundreds of treaty provisions, as well as in customary international law. Serious efforts should be undertaken by governments, by educational institutions, and by the information media to develop programs that convey the basic concepts of the law in ways that will interest people and seem relevant to them . If such programs could be developed for television, they might well have a far greater impact than books or pamphlets. I wonder, for example, whether such programs could be created to show why persons found guilty by the United Nations Tribunals had violated the law - thus explaining the law in its dramatic and tragic context.

IV. GAINING SCRUTINY OF COMPLIANCE Arguably the most effective deterrent to the commission of war crimes in international armed conflicts is the presence of observers who can scrutinize the performance of the parties to the conflict, complain to a party about perceived violations of legal norms, and report such violations to the aggrieved party . The time-honoured peacetime institution of the protecting power which represented a state's interests with another slate when the two did not have diplomatic relations with each other was adapted to wartime use in order to provide such scrutiny of the treatment of prisoners of war. The first treaty to recognize the institution was the Geneva Convention of 1929 on the protection of prisoners of war.I'' During the Second World War, protecting powers were often , but certainly not always, able to scrutinize the treatment of prisoners of war, and that success was reflected in the four Geneva Conventions of 1949, where the role of the protecting powers was spelled out in relation to civilians, the sick and wounded, and shipwrecked persons, as well as prisoners of war. Unfortunately, in the half century since the 1949 Conventions, there have been many armed conflicts, but protecting powers have been conspicuous by their absence, and their absence has made it easier for parties to these armed conflicts to mistreat the prisoners of war they capture and the civilians in territories they

13

Geneva Convention Relative to the Treatment of Prisoners of War (27 Jul 1929), 118 LNTS 343,2 Bevans 932 . A brief and useful history of protecting powers can be found in Howard S. Levie, 'Prisoners of War in International Armed Conflict' at pp. 255ff, 59 International Law Studies, 9 United States Naval War College (1977) .

Improving Complian ce with the Laws Applicable in Armed Conflict

7

occupy. While the International Committee ofthe Red Cross (ICRC) has frequently offered to assist the parties to these conflicts, its services have not always been accepted . Moreover, the nature of the ICRC and, in particular, the discretion it must maintain and its reluctance to criticize non-compliance with the law, except privately to the party in question - qualities essential to the effective performance of its unique humanitarian role - make it impossible for it to assume all the functions of a true protecting power. The designation of protecting powers was traditionally by mutual consent of the two warring parties. Recognizing, however, that mutual agreement might sometimes prove impossible, the Geneva Conventions of 1949 provided that when, for any reason, prisoners of war or other protected persons cease to benefit from the activities of a protecting power, the detaining power must request a neutral state or an impartial and effective organization to undertake the functions of protecting power. 14 In practice, detaining powers have frequently ignored that obligation . The Convention s further provided that, if protection cannot be arranged in that way, then a detaining power must request or accept the offer of services by a humanitarian organization, such as the ICRC, to assume the humanitarian functions of protecting powers ." Unfortunately, the then-Communist states all made reservations to those provisions to the effect that they would not recognize the validity of any such requests by a detaining power without the consent of the state of which the prisoners of war or protected persons were nationals . In practice , the Communist states, when parties to an armed conflict, refused to allow any protecting power or substitute organization to observe how they treated prisoners of war or other protected persons." The negotiators of the 1977 Geneva Protocol I attempted to improve the prospects that the protecting power system would function in practice, but the results were modest , largely because of the combination of a felt need to seek consensus

texts and the adamant refusal of the Communist states to accept any restraint s on

14

Article 10 of Geneva Conventions I, II and III, and Article I I of Geneva Convention IV.

15

Ibid.

16

One example with which the present author was familiar was the unsuccessful efforts by the United States to have either a protecting power or the lCRC accepted by North Vietnam to scrutinize the treatment of American prisoners of war between 1965 and 1973. The United States proposed Egypt, with which its relations were then somewhat strained, in the hopes that it might be accepted, but the North Vietnamese refused, as they did the efforts of the ICRC to be admitted for humanitari an purposes. The ICRC was given access to the prisonerof-war camps operated by South Vietnam.

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their ability to object to any state or organization as a protecting power or a substitute for a protecting power. I? The negotiators of the Protocol were more successful, however, by providing for the creation of a fifteen-member International Fact-Finding Commission ." The Commission is authorized to inquire into any facts alleged to be a grave breach or other serious violation of the 1949 Conventions or the 1977 Protocol I where both the requesting and the accused parties have accepted the Commission 's competence in advance. The requirement of mutual acceptance was sufficient to permit the then-Communist states to agree to inclusion of this provision in the Protocol. At the time, I thought the provision modestly useful, but I saw no reason to believe that any of the then-Communist states would accept the Commission 's competence. Nevertheless, when ratifying Protocol I, the Soviet Union astounded me - and I am sure many others - by accepting that competence. Today, of the 155 parties to Protocol I, 56 have accepted the competence of the Commission. Unfortunately, that body has not yet been requested to inquire into any alleged offences . It should be noted that the Commission's competence includes alleged serious violations of common Article 3 of the 1949 Conventions - that is, regarding conflicts not of an international character occurring in the territory of a party. Given these developments, including the dramatic political changes in many formerly Communist states, whenever an international armed conflict occurs, the parties involved should be pressed to designate protecting powers, as required by the Geneva Conventions and Protocol 1. The United Nations Security Council, acting under Chapter VII of the Charter, could also mandate such designation . While it must be acknowledged that any protecting power can function effectively only with the consent (however grudging) of the party to the conflict controlling the area where it is to work, all possible efforts should be made to obtain that consent. Refusal to agree to a protecting power should be treated as a serious violation of the Geneva Conventions and Protocol 1. The physical presence of representatives of a protecting power or substitute organization at prisoner-ofwar camps and in occupied territory would help to deter violations and promote compliance with the law as much, if not more, than more frequent prosecution of war criminals. For non-international armed conflicts, the protecting power device is obviously inappropriate unless the parties can be persuaded to accept some form of interna-

17

See Protocol I, Article 5.

18

Ibid ., Article 90.

Improving Compliance with the Laws Applicable in Armed Conflict

9

tional intervention, but the prosecution of serious offences and, for those states that have accepted the co mpetence of the Fact-Finding Commi ssion, inquiry by the Commi ssion rem ain available sanctions.

V. CONCL USION

The substantial progre ss made during the twentieth century in the development and acceptance of intern ational humanitarian law has essentially been subverted by the frequent failure of compl iance with that law. While dramat ic efforts have been made in the past several years in the prosecution of some persons who are accused of serious violations of the law, much more needs to be done if the world is to see substantial and lasting improvement in the level of compliance. The new International Criminal Court needs either to obtain universal acce ptance or, should that prove impossible, then to have its juri sdiction restricted to the nationals of states party to the Rome Convention. States must begin to take more seriously their obligations to educate their nationals in the law, to act to prevent and repress breaches of the law, and to prosecute those guilty of serious violations of the law. Equally important, the vital scrutiny that only protecting powers can supply must find its way from the law in the books to the law in practice. As a helpfu l step, the United Nations Security Council should take effec tive action to discourage parties to international armed conflicts from failing to agree to the appointment and proper functioning of protectin g powers, in part, by ruling that it considers such failure a serio us violation of the Geneva Conventions and Protocol I. States that have not yet ratified Protocol I should do so, and states that have not yet accepted the competence of the Fact-Findin g Comm ission should do so. Until co mpliance with international humanitarian law improves in international armed conflicts, it will remain even more difficult to improv e compliance with the law applicable in non-international armed conflicts, but the Fact-Finding Commi ssion and the new International Criminal Court should be encouraged to use responsibly their jurisdiction with respect to such conflict s. Improving compliance with the law remains a work in progress, and to realize real progres s, much work will clearly be required . This effort should be high on the international agenda for the early years of the twenty first century.

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SOME PRELIMINARY REFLECTIONS ON THE MENS REA REQUIREMENTS OF THE CRIMES OF THE ICC STATUTE AND OF THE ELEMENTS OF CRIMES KaiAmbos

The retirement of Professor Antonio Cassese from hi s judicial duties at the ICTY certainly leaves the Tribunal with a large gap that will not be filled in the near future . Casse se ' s opinions have recei ved considerable attention in ac ademic writings and will, without doubt, influence jurisprudence for a lon g time to co me. Judge C assese always ba sed his arguments on a so lid co m pariso n of the world's major c ri m ina l law sys tems and o n a profound analysi s of the existing case law. On e of the be st examples in thi s respect, at least in thi s writer' s view , is his dissenting opinion in the Erdemovic judgement on appeal in which the highly contentious issue of the defence of duress in taking the lives of innocents was addressed. I In the light of Casse se's meritoriou s wo rk, especially in the " G ene ra l Part" , thi s paper addresse s the crimes dealt with in the ICC Statute and the Elements, examining in particular the subj ective or mens rea requirements.' It star ts with a rather

I

2

Prosecutor v. Drai en Erdemovic, Case No. IT-96-22-A, Judgement, 7 Oct. 1997. On this issue see Ambos, Der All gemeine Teil des Vjjlkerstrafr echts, Berlin 2002, at 859 et seq.; id. , in: Cassese/Gaeta/Jones, The Rom e Statute of the ICC, Vol. I, Oxford 2002, at 1042 et seq .

The Elements were provisionally adopted in the 6th session of the Preparatory Commission (hereinafter "PrepComm") of the ICC; cf Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized Draft Text of the Elements of Crimes (PCNICC/2000/2000/l /Add. 2, 2 November2(00) ; availableat .They were formally adopted by the first Assembly of State Parties in its meeting in the first week of September 2002.

L.C. Vohrah et al. (eds.), Man 's Inhum anity to Man, 11-40 ©2003 Kluwer Law International. Printed in the Netherlands.

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general examination of the Elements, which serves to prepare the reader for a more profound analysi s of the mens rea requirements of the Crimes , taking into account the Elements.

I. THE ELEMENTS, IN PARTICULAR THE MENS REA REQUIREMENTS According to article 9,3 the Elements are intended to "assist" the ICC in the interpretation and application of articles 6-8, i.e., the core crimes defined in the Statute. Although the Elements are part of the applicable law according to article 21 (I )(a), article 9 - as lex specialis - makes it clear that they represent a subsidiary source of law for the crimes in the Statute and are subj ect to interpretation by the ICC. 4 Thus, they cannot bind the Court if it determines that a certain element is inconsistent with the correct interpretation of the respective provision in the Statute . Ultimately, they have a declaratory and systematizing function . They systematize articles 6-8 by dividing the elements of the offence into several paragraphs. Paragraph 7 of the general introduction to the Elements explains the structure of the Elements as follows: First, the conduct, consequences and factual circumstances of the crime at issue are described ; this is followed by the subjective conditions of criminal responsibility (mental elements) if the crime at issue so require s and, finally, by the so-called contextual circumstances.'

3 4

5

Articles referred to in the text are those of the ICC Statute unless stated otherwise. Cf also Elements, supra note 2, General Introduction, at 5 (no. 1). Cf, Gadirov, in Triffterer (ed.), Commentary of the Rome Statut e ofthe lnternational Criminal Court. Observers Notes Article by Article , 1999, art. 9 margin number (mn.) 30; Dormann/Krefl, 'Verfahrens- und Beweisregeln sowie Verbrechenselemente zum Romischen Statut des Intemationalen Strafgerichtshofs. Eine Zwischenbilanz nach den ersten zwei Sitzungen der Vorbereitungskommiss ion fur den intemationalen Strafgerichtshof" 12 Humanitii res Viilkerrecht (HuV) 203 (1999); Lindenmann , 'Die Arbeiten der Vorbereitungskommission fur den Internationalen Strafgerichtshof - Anmerkungen aus Schweizer Sicht' 12 HuV 213 (1999) ; von Hebel! Robinson, 'Crimes within the Jurisdiction of the Court' in: Lee (ed.), The lnternational Criminal Court, 1999,79-126, at 87-88; Robinson/von Hebel , 'War crimes in internal conflicts: article 8 of the ICC Statute ' 2 Yearbook oflnternational Humanitarian Law 193-209, at 206 (1999) ; Caracciolo, ' Applicable Law' in Lattanzi/Schabas (eds.), Essays on the Rome Statute of the lnternational Criminal Court, 1999, 211-235 , at 226 ; Schabas, Genocide in lnternational Law (2000) ,173. Cf Element no. 4 of article 6 (a), infra note 6; Elements 2 and 3 of article 7 (I)(a), infra note 8; Element 4 of article 8 (2)(a)(i) , infra note 10.

Some Preliminary Refl ections on the Mens Re a Requirements

13

The crime of genocide (article 6), for example, is divided into various subcrimes with four, five or seven elements along the lines of different modes or alternatives of commi ssion. Accordingly, article 6 (a) - "genocide by killing" - contain s the following four elements: I . The perpetrator killed one or more person s. 2. Such person or persons belong to a particular national , ethnical , racial or religiou s group . 3. The perpetrator intend ed to destroy, in whole or in part, that national , ethnical, racial or religiou s group , as such. 4. The conduct took place in the context of a manife st pattern of similar conduct directed against that group or was conduct that could itself effect such destruction." The last two Elements are also contained in the other sub-crimes of genocide, since they refer to the generall y required intent to destro y (element no. 3) and to the context of the genocidal conduct, the so-called "context" or "co ntextual element" (no. 4). In addition, some terms of the cont ext element are defined in the introduction to article 6. More precisely, the expressions "in the context of," "initial acts in an emergin g pattern" and "manifest" are under stood as objec tive qualifications. With respect to the mens rea of the context element, the introduction contains the Solomonic formu lation that the subjective requirements, where necessary, must be decided by the ICC for each case individually.' T he reason for this wordin g lies in a dispute as to whether this type of context element is required for genocide at all as it is not explicitly mentioned in article 6; for the opponents of a context element for genocide, it need, in any case, only exist objectively. The Elements of crimes aga inst humanity (article 7) and war crime s (article 8) are similarly codified . For exa mple, the elements for the crime against humanity of murder (article 7 (I )(a» are as follows: I. The perpetrator killed one or more persons. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

6 7

Cf, Elements, supra note 2, 6. Ibid., Introduction, no. 3: "kn owledge of the circumstances will usually be addressed in proving genocidal intent, the appropri ate requirement , if any, for a mental element regarding this circumstance [the context cleme nt, K.A.] will need to be decided by the Court on a case-bycase basis" (emphasis added).

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3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population ." Element I refers to the specific alternative or sub-crime of murder and the last two Elements regarding the context required for all crimes against humanity are repeated for all alternatives of crimes against humanity. While the specific elements of each alternative can be derived directly from the wording of the Rome Statute and their codification is therefore - if one excludes particularly complicated (sub-) crimes such as enforced disappearance (article 7 (l)(i)) - relatively unproblematic, the general (context) elements as contained in the second and third paragraphs of the introduction of the Elements to article 7 were highly controversial. The second paragraph of the introduction contains the following passage: These elements clarify requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization . In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack ." This wording, which is by no means readily comprehensible, contains a highly disputed compromise with respect to the subjective requirements for crimes against humanity. Although it is beyond debate that the offence must be committed in a particular context, viz. as part of a widespread or systematic attack against a civilian population, the requirements concerning the perpetrator's knowledge of this context were and continue to be contentious. While, on the one hand, article 7 (I) requires knowledge of the attack, it would, on the other hand, be too much to expect a perpetrator to have knowledge of the precise details of the policy behind such a crime . Such a requirement would render convictions virtually impossible. The compromise wording quoted above takes this into account by expressly not requiring knowledge of all characteristics of the attack or the precise details of the policy or plan. Moreover, the intent can be proven using circumstantial evidence if the perpetrator only intended to further a widespread or systematic attack.

8

9

Ibid ., 9 and 10 et seq. for the elements of the other alternatives of article 7, which are divided into four to eight elements.

lbid., 9, Introduction, no. 2 (emphasis added) .

Some Preliminary Reflections on the Mens Rea Requirement s

15

In the case of war crimes (article 8), the subjective requirements also present the most difficult problem . Let us, for example, consider the elements of the first war crime , the "war crime of wilful killing", according to article 8 (2)(a)(i) : I. The perpetrator killed one or more persons. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status . 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict .'? The specific elements of this crime are contained in numbers 1-3, while the last two numbers contain the general elements applicable to all alternatives of war crimes with the only difference that element 4 varies according to the nature of the armed conflict as international or not international. The outcome of the last two clements is that a war crime exists if the conduct took place within the context of an international or non-international armed conflict (no. 4) and the perpetrator was - subjectively - aware of the factual circumstances of the existence of such an armed conflict. Conversely, it follows that a legal evaluation of whether the conflict is international or non-international is not required . This is also stated in the introduction to the elements of article 8; II however, it is also stated that the perpetrator need not even be aware of the facts (!) that render a conflict international or non-international. On the other hand, it is required that the perpetrator be aware of thefactual circumstances of the status of the victim as a protected person (Element 3) and of the existence of an armed conflict (Element 5). This reflects the debate between a prosecution-oriented view and one which considers - in accordance with the principle of guilt'? - an intent requirement in the form of comprehensive factual knowledge necessary. Whichever view one supports, in light of article 8,

10 II

12

lbid., 18-19 and 19 et seq. with the Elements for the other war crimes . Ibid. , 18, Introduct ion, first no.: ''There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as internat ional or non international" ; (emphasis added).

See infra note 20.

16

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which retain s the debatable but classic distinction between an international and a non-international conflict, it is not very convincing to differentiate between the existence of an armed conflict and its nature (as international or non-international). Had the authors of the Rome Statute have had the courage to give up this classic distinction in favour of a single category of crimes in armed conflict, the distinction between factual knowledge and legal evaluation would - also in subjective terms - be easier to draw. We will return to this issue below. Be that as it may, these observation s indicate a considerable need for clarification with regard to the subjective requirements of responsibility in international criminal law. To put it simply, the perpetrator must have factual but need not have legal knowledge . Consequently, regarding the knowledge of "elements involving value judgement", the general introduction to the Elements explicitly states that the perpetrator need not complete a particular value judgement.'! Moreover, the general rule of article 30 14 - which requires a dolu s directus - is applicable and the existence of intent can be derived from certain facts and circum stances. IS

II. THE CRIMES, THE ELEMENTS AND M ENS REA

A. Genocide (article 6) I. The chapeau

In the case of genocide, the general intent (dolu s) refers to the specified action s against one of the listed groups. The perpetrator must therefore know that the object of his actions is one of the groups named in article 6, as this is a factual

13

Ibid., 5, Gener al Introduction, no. 4: "With respect to mental elements associated with ele-

ments involving value judgement, such as those using the terms 'inhumane' or 'severe' , it is not necessary that the perpetrator personally completed a particular value judg ement , unless otherwis e indicated." 14

15

For a more detailed discussion, cf. Schabas, 'The General Principles of the Rome Statute' 6 Eur. Crime Cr.L.CrJ, 400-428 , at 419 et seq. (1988); Ambos, 'General principles of criminal law in the Rome Statute ' 10 Criminal Law Forum 1-32, at 20 et seq. ( 1999); id., Allg. Teil, supra note 2, at 758 et seq.: Eser, in Cassese et al, supra note 2, at 902 et seq. Elements, supra note 2, 5, General Introduction , no. 2 and 3. Cf Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1 , Judgement, 25 June 1999, paras 6 1, 65 and Prosecutor v. KayishemalRu zindana, Case No. ICTR 95- I-T, Judgement, 2 1 May 1999, para. 93.

Some Preliminary Reflections on the Mens Rea Requirements

17

circumstance as defined by article 30 (3). In contrast, the special intent (dolus sp e c ia li s ) to destroy must be distinguished from the knowledge of the destructive effect of the conduct with respect to a particular group. This was done in the Elements for article 6 after the first reading, 16 but, as was already shown above, the final version of the Elements retained only the requirement of the intent to destroy. 17 As to the knowledge requirement being part of the general intent, the co-ordinator of the Working Group of the Preparatory Commission originally proposed a "should have known" standard. 18 Acceptance of this standard would mean that even negligent ignorance of the main perpetrators' intent to destroy a protected group by means of particular conduct would be sufficient for a secondary perpetrator or accomplice to incur liability for genocide. \ 9 In light of the principle of guilt already recognized in Nuremberg" and the generally applicable article 30, it was certainly the correct decision to abandon this low threshold in the last version of the Elements. As to the further requirement that the perpetrator know that his conduct is "part of a pattern of similar conduct directed against that group" ," the Preparatory Commission decided to leave the issue to the Court." As a result, it is

16

17

18

19

20

21

22

The last clement in each case (3 or4), here "Genocide by killing " . "The accused knew .. . that the conduct would destroy .. . such group" (Preparatory Commission for the International Criminal Court , Addendum. Annex III. Elements of Crimes . PCNICCII999fL.5lRev. l/Add. 2.,22 Dec. 1999,5 et seq . (emphasi s added) . See sup ra, note 6.

Cf UN Doc . PCNICCII999/WGEC/RT.I . See also the last element respectively of the 1999 version of the Elements , e.g., "Genocide by killing" : "The accused knew or should have known that the conduct would destroy ... such a group." (PrepComm, sup ra note 16,5 et seq.). Critically also Schabas , sup ra note 4, 212. Cf The Trial of the Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, vol. 22, at 469 (London, HMSO 1950): "one of the most important [legal principles] . .. is that criminal guilt is personal " . See also Ambos , 'Individual criminal responsibility in International Criminal Law: A juri sprudential analysis - From Nuremberg to The Hague ' in Gabrielle Kirk McDonald/Olivia Swaak-Goldman (eds.), Substantive and procedural aspects of International Criminal Law. The experience of international and national courts. Vol. I, Commentary, (The Hague 2000) , pp. 1-31, at 8.

See the last element in each case (3 or 4) of the 1999 version of the Elements, e.g., "Genocide by killing " : " .. . that the conduct was part of a pattern of similar conduct directed against that group". (PrepComm, supra note 16,5 et seq.). See supra note 7.

18

Chapter 2

now required - via article 30 (3) - that the perpetrator was aware that he was acting within the context of a genocidal destruction plan and not as an isolated soleperpetrator. However, the perpetrator - in agreement with Kayishema/Ruzindana 23 - need not, on the one hand, have knowledge of all details of such a plan or a policy to this end, nor, on the other hand, is negligent ignorance sufficient. As to the special intent one must first make - in accordance with the German and the overwhelming doctrine in the so-called Civil Law countries - a basic distinction between the subjective elements of the actus reus (subjektive Tatbestandsmerkmale) and the elements of guilt (Schuldmerkmale) . The dolus specialis is part of the former and, thus, complements the requirement of a general intent." The dolus specialis on the one hand makes genocide, which in essence is a crime against humanity similar to persecution for particular discriminatory reasons according to article 7 (1)(h),25an "extreme and the most inhumane form of persecution"." On the other hand , the perpetrator's transcending internal tendency (uberschiefJendelnnentendenz) aimed at destroying a particular group distinguishes the crime of genocide from persecution and all other crimes against humanity and gives it a special quality." It is an intent or goal-related crime (Absichts- oder

23 24

25

26

27

Prosecutor v. Kayishema/Ruzindana, supra note 15, para. 94. Cf, Roxin, Strafrecht-Allgemeiner Teil. Band 1. Grundlagen. Der Aujbau der verbrechenslehre, (3rd ed. 1997), § 10, mn. 74 (on § 220a of the German Criminal Code (Strafgesctzbuchj), who argues that this element refers to the legally protected good and is constitutive for the type of offence . Cf, e.g. Prosecutor v. Jelisic, Case No. IT-95-1O, Judgement, 14 Dec. 1999, para. 68; also Prosecutor v. Ruggiu , Case No. ICTR-97-32, Judgement and Sentence , I June 2000, para. 21 (with reference to Kupreski c et al., infra note 26). The German Supreme Court (BGH) (19 Neue Zeitschrift fur Strafrecht [NStZ] 396, at 401 (1999» also views genocide as "part of a crime against humanity". On the German jurisprudence see Ambos/Wirth , 'Genocide and War Crimes in the FormerYugoslavia before German Criminal Courts' (1994-2000) in Fischerl KreBlLiider(eds.), Internat ional and national prosecution ofcrimes under international law: current developments (200 I) at 769 et seq . Prosecutor v. Kupreskic et al., Case No.IT-95-16,Judgement, 14 Jan. 2000, para. 636: "genocide is an extreme and most inhumane form of persecution ." See also Swaak-Goldman, 'Persecution ' in McDonald/Swaak-Goldman (eds.), supra note 20, p. 247 et seq . on the elements of the offence of persecution . Cf. Prosecutor v. Jelisic, supra note 25, paras 66, 79 et seq . (79, 82); in agreement Schabas, supra note 4, 9, II ; similarly Ntanda Nsereko. 'Genocide: A Crime against Humanity ' in McDonald/Swaak-Goldman (eds.), supra note 20, 113-140, at 119. For a distinction based on the legally protected good cf, Gil Gil, 'Derecho penal internacional. Especial consideraci6n del delito de genocidio' , 1999. 123 et seq . (125-26) , 159 et seq. (177 et seq.); idem ., 'Die

Some Prelim inary Reflect ions on the Mens Rea Requirements

19

Zieldelikt) .28 However, in recent studies by Gil Gil, Greenawald, Triffterer and Vest the understanding of special intent as dolus directus of the first degree has been called into question for theoretical and policy reasons. In her fundamental work on the elements of genocide," Gil Gil takes the view that the concept of intention (intenci6n) must be understood in a wider sense and must encompass the concept of dolus eventualis or conditional intent." She justifies this for genocide by invoking the parallels between its structure and that of attempt. Attempt, an inchoate crime, requires, on the one hand, general intent, including dolus eventualis, with regard to the actus reus of the attempted crime and, on the other hand, will (voluntad) or intention (intenci6n) as a transcending subjective element (elemento subjetivo trascendente) with regard to the constituent acts of the offence and the criminal result ." As to these constituent acts, it would be sufficient that - according to the perpetrator 's plan - the production of the criminal result does not appear absolutely improbable. As to the criminal result itself, the perpetrator's "voluntad eventual", i.e., conditional, not unconditional

Tatbestande der Verbrechen gegen die Menschlichkeit und des Volkermordes im Rornischen Statut des Internationalen Strafgerichtshofs', III Zeitschrift flir die gesamte Strafrechtswissenschaft [ZStW), 382 et seq., 393-394 (2000), according to which genocide protects a collective good, i.e., the group as such, and crimes against humanity protect individual rights; Green awalt, 'Rethinking Genocidal Intent: The Case for a Knowledge-ba sed Interpretation' , 99 Columbia Law Review, 2259-2294, at 2293-2294 [1999), defends a similar view. As to the concursus delictorum , when multiple actions with genocidal intent are committed , this results in a single genocide (i.e., a single offence) (Handlung seinhe it) in conco urs ide al (ld ealkonkurrenz) with crimes against humanity (cf. Gil Gil, op. cit., 396-397; also BGH , supra note 25,401 et seq., with case note by Ambos). 28

29

30

31

See in detail the excellent work of Gil Gil, ' Derecho penal internacional', supra note 27, 178 et seq. (179), 231 et seq., 258 et seq.: idem, "Tatbestande' , supra note 27, 394-395. See also Ntanda Nsereko , sup ra note 27, at 124 et seq., 137; Schabas, supra note 4, at 214,217 et seq . On the structure of the genocide crime, see also AmboslWirth, ' Sentencing, cumulative charging, genocide and crimes against humanity' in Klip/Sluiter (eds.), Annotated Leadin g Cases, Vol. Il - The International Criminal Tribunal f or Rwanda 1994-1999 (2001) , 701, at 703 et seq. Gil Gil, ' Derecho penal internacional ' , sup ra note 27,231 et seq. (236 et seq.) with reference to her mentor Cerezo Mir in note 124 and 127 and further references in note 136. On the continental concept of dolus eventualis that can be situated somewhere between purpose/knowledge and recklessness/negligence , see Fletcher, Basic Concepts of Criminal Law , 1998, at 123 and Ambos, supra note 14, at 2 1 with further references. Gil Gil, ' Derecho penal internacional' , supra note 27, 241.

Chapter 2

20

intent , is sufficient as well. A higher degree of intent - according to Gil Gil - can only be justified for additional systematic, teleological or other types of argument s (which she cannot identify)." It is obvious that Gil Gil' s view results in a considerable extension of criminal liability for genocide, as any degree of intent is deemed to be sufficient.33Thus , for example, a soldier who knowingly participates in the destruction of a certain ethnical group makes himself liable, even though destruction is not his (primary) goal or purpo se, he is merely indifferent to the destruction plan and is therefore acting only with "voluntad eventual't." This view is not convincing for a number of reasons. First, it contradicts the restrictive interpretation - also supported by Gil Gilof the actus reus of genocide with respect to the groups protected ; one cannot argue for a restrictive interpretation on the objective level, in particular with a view to the delimitation between genocide and crimes against humanity, while denying the principal difference between these crimes on the subjective level and thereby extending the scope of genocide considerably at the expense of crimes against humanity. Furthermore, Gil Gil's consideration of the parallel structures of attempt and genocide is not cogent: Although it can be argued that the actus reus of genocide is structurally identical to that of an attempt crime, this does not mean that it must have the same subjective requirements. On the contrary, an attempt crime does not contain a special subjective element that is in any way comparable to the dolus spec ialis to destroy required for genocide. Finally, a dolus eventualis is not admissible for terminological and international criminal law reasons. Interpreting the concepts of "intent," "intention," "intencion" or "Absicht" in terms of a dolus eventualis would constitute a forbidden analogy at the expense of the accused and therefore would violate the nullum-crimen principle (article 22 (2».35 Existing international criminal law as codified in the ICC Statute does not recognize dolus eventualis as a separate type of intent since the perpetrator acting with this type of intent is not aware, as required by article 30 (2)(b), that a certain result or con sequence will occur in the ordinary course of event s." This standard rather corresponds to the one currently discussed in some Scandinavian countries where

32

Ibid.• 239.

33

Cf ibid., 260-261 for an explicit explanation.

34

Cf ibid. , 262-26 3 and 261 et seq. for further examples.

35

Cf. - instead of many - Roxin, supra note 24, § 12 mn. in note 13.

36

Cf Ambo s, supra note 14, at 2 1-22; id., Der AUg. Teil, supra note 2, at 767 et seq.

Some Preliminary Reflections on the Mens Rea Requirements

21

it is beyond controversy that intent encompasses certainty or the high probability that a result will occur." A related question is whether the "intent" concept is always to be seen as a dolus directus of the first degree or whether it refers to the entire scope of direct intent, i.e., whether positive knowledge (dolus directus of the second degree) may also suffice. This depends on whether the intent is constitutive and decisive in determining the type of the crime in question or whether it is not." Greenawalt recently argued for a knowledge-based interpretation on the basis of a historic interpretation of the Genocide Convention and a dogmatic criticism of the intent concept.'? Triffterer and Vest basically follow this line of reasoning arguing for a knowledge requirement.w According to Greenawalt, in cases in which a "perpe trator" is liable for genocide by a form of participation other than direct perpetration, e.g., as an accomplice, the requirement for genocidal intent is fulfilled if she " acted in furtherance of a campaign targeting members of a protected group and knew that the goal or manifest effect of the campaign was the destruction of the group . .. " .40 This reading of the intent requirement of the Convention combines two elements : Selection of group members based on their membership in the group and knowledge of the destructive consequences of the conduct at issue for the survival of the group." The principles underlying this argument, scil. the historic interpretation by Greenawalt , and his criticism of the ambivalent intent concept, are convincing because the intent requirement cannot be explained either historically or grammatically. Nor can Greenawalt's reference to the inconsistent ruling

37

See especially the Norwegian reform proposal of 1992 according to which intent exists if the perpetrator is aware that the act "certainly or most probably " (sikkert eller mest sannsynlig) fulfills the elements of the crime (ch. 3 , sect. 30 (I) no. 2); also the Finnish proposal of 2000 according to which an act is intentional if the perpetrator considers the commission of the offence as "certain or very probable" (varmana tai varsin todenniikoisend, ch. 3, sect. 6 no. 2) . I am indebted to Jussi Pekka Matikkala , lie.jur Helsinki , for having provided me with this information.

38

Cf. Roxin, supra note 24, § 12 mn. 15.

39

Greenawalt , supra note 27, at 2265 et seq.

39.

Triffterer, Kriminalpolitische und dogmatische Uberlegungcn zum Entwurf gleichlautender "Elements of Crimes" fiir aile Tatbestande des Volkermords, in: Schtinemann et al. (eds.), Festschrift Roxin 200 I, 1415, at 1438 et seq. ; Vest, Genozid durch organisatorische Machtapparate, 2002, at 101 et seq.

4()

Greenawalt , supra note 27 at 2288 (emphasis added).

41

Ibid., 2289.

22

Chapter 2

of the ICTR in Akayesu be ignored in which the Court implies that a special intent to destroy is required for (general) complicity in genocide according to Article 6 (I) Statute of the ICTR , while mere knowledge is sufficient for the specific "complicity in genocide" offence according to Article 2 (3)(e) of the Statute of the ICTR, thereby in effect circumventing the intent requirement." Still , the question of the teleology of the crime of genocide remain s open : If one sees its purpose in punishing as genocide only the intentional destruction of a group , i.e., if the special intent is constitutive and decisive for this type of crime as an intent aimed at a certain criminal result, a "knowledge-based interpretation" would radically change its nature. This would also have grave consequences for its characterisation as an (incomplete) attempt which is already fulfilled with a single act, because this low objective requirements can only be justified in light of the special intent to destroy. Moreover, the same objections as formulated against Gil Gil 's view also apply against Greenawalt's, although the former goes further in that she considers even a dolus eventualis to be sufficient. Notwithstanding, Greenwalt's, Triffterer's and Vest's propo sals deserve closer examination, if only becau se the distinction made in Akayesu between complicity in the sense of the Genocide Convention and complicity according to general rules of criminal law (general compli city) is not convincing . In this context, one must remember that the existing case law does not at all clari fy whether participants other than the direct perpetrator must also act with special genocidal intent. Unlike Akayesu, the Chamber in Musema held that both knowledge on the part of other participants as well as negligent ignorance ("had reason to know") of the genocidal intent of the principal perpetrator were sufficient." In contrast, according to the ICTR , the inchoate offences of incitement 44 and conspi racy v shall require the special intent to destroy. Similarly the ICTY confirmed the specific intent requirements for all forms of perpetration of genocide in Jelisic and Krsticr »

42

43

44

Ibid., 2282 et seq . Prosecutor v. Musema , Case No. ICTR -96-13, Judgement and Senten ce, 27 Jan . 2000, para. 181 et seq. Prosecutor v. Akayesu, Case No. ICTR-96-4 , Judgement, 2 Sept. 1998, para. 560; Prosecutor v. Ruggiu, supra note 25, para. 14.

45

Prosecutor v. Musema , supra note 43, para. 192.

45,

Prosecutor v. Jelisic, Case No. IT-95-IO-A, Judgement, 5 July 2001, para. 42 et seq. (46: "seek s to achieve the destruction . ..") ; Prosecutor v. Krstic, Case No. IT-98-33-T, Judgement , 2 August 2001 , para . 569 et seq. (57 1) in relation to paras. 622, 633-4, 644 with regard to co-perpetration.

Some Preliminary Reflections on the Mens Rea Requirements

23

As to the general forms of participation, in particular aiding and abetting , the distinction in Akayesu cannot be followed." It simply makes no sense to treat complicity based on the Genocide Convention differently from general complicity. With the adoption of the Rome Statute, we can proceed from the assumption that there is a general law of complicity that is equally applicable for all international crimes . In light of the German jurisprudence, it could be argued that there is a general principle according to which the participant need only know the special subjective requirements of the main perpetrator, but not possess them herself." To give an example: If A kills a Jew with the genocidal intent to destroy this religious group and B aids and abets in the killing without having a genocidal intent but is aware that A acts with such an intent B possesses the mens rea to be convicted as an aider and abettor to genocide . The extension of the special intent requirement to participants would also lead to the - for policy reasons - undesirable result that complicity in genocide would remain largely unpunished, because the destruction of a particular group is often not the aim or goal of the accomplice, rather he simply accepts it as a predictable side-effect." Think, for example, of a company that utilizes forced labourers who belong to a particular group and imposes conditions of life upon them calculated to lead to the partial or complete bodily destruction of the group in question (article 6 (cj), but whose primary goal is not the destruction of the group but profit maximization through the use of cheap labour. However, one cannot go so far - as did the ICTR in Musema - as to admit negligent ignorance as a basis for a genocide conviction. The requirement of positive knowledge must be retained for at least two reasons: First, it is required by the principle of guilt; and second, the "had reason to know" standard is not recognized in article 30.

46

47

48

Insofar I give up my earlier view expressed in Triffterer (ed .), supra note 4, article 25 mn. 30. BayObLG, 51 Neue Juristische Wochenschrift 392 et seq. (1998) with case note by Ambos 18 NStZ 139 (1998) , with references; Roxin, in: Jlihnke/Laufhiitte/Odersky (Hrsg .), StGH. Leipziger Kommentar. GroBkornmentar, 8th supplement (1993), § 26 rnn., 66; Maurach-GosselZipf, Strafrecht-Allgemeiner: Teil 2, (7th ed . 1989), § 51 mn., 26. Dissenting Schabas, supra note 4, 221,259,300 et seq ., who criticizes the distinction in Akayesu, but in the end argues for the requirement of the special intent to destroy for all forms of participation. According to Heine/Vest, 'Murder/Willful Killing' in McDonald/Swaak-Goldman (eds.), supra note 20, 175-195, at 186, the result , side-effects and preconditions cannot be distinguished due to the collective nature of genocide ; the knowledge requirement must therefore be retained .

24

Chapter 2

As to the requirement of a special intent to destroy for the offences of incitement and conspiracy, the position of the ICTR is convincing. The character of these offences as offences of (abstract) endangerment or risk leads to a kind of "anticipated" criminal liability (Vorverlagerung) with respect to a possible violation of the legally protected good or interest, scil. the attack against the existence of the group. This anticipated liability requires a restriction that can be achieved on the subjective level only by the requirement of a special intent to destroy." Such a restricti on will not create a looph ole with regard to criminal liability, because both the inciter and the conspirator generally act with the required intent to destroy; in the case of incitement this intent is often provoked in the recipients of the inciting conduct. 2. The different modes of commissio n

As to the different alternatives or modes of commissio n of genocide, article 6 (a), (c) and (d) contain concepts which could imply an intent requirement different to that in article 30 with respect to particular elements of the offence." The interpretation of the English term "killing" and the French "meurtre" is disp uted with respect to article 6 (a).51 In Kayishema/RuzindanaP the ICTR decided that "killing" includes "merely the act of causing the death," i.e., negligent killing, whereas "meurtre" requires an "additional mental element of intent," i.e., encompasses only intentional homicide. This interpretation should be followed since it is more favourable to the accused. However, in the final analysis the Chamber considers this dispute to be of no relevance, as both language versions are related to the requ ired special intent to destroy. In employing this approach, the Chamber overlooks the difference between the gene ral requirement of intent with respect to the different alternatives of genocide and the overreac hing subjective requirement - the perpet rator's transcendin g internal tendency- of the special intent to destroy.

49

Cf also Schabas, supra note 4, 275 on incitement.

50

Schabas , sup ra note 4, 242, 245, views article 6 (b) and (e) also as containing the requirement of a "specific intent" but does it not distinguish clearly from the generally required intent to destroy and therefore seems to consider knowledge to be sufficient (ibid., 245: "offender must have knowledge .. .").

51

Cf also Schabas, supra note 4,241-242.

52

Prosecutor v. Kayishema/Ruzindana. supra note 15, para. 100 et seq . See also Prosecutor v. Musema , supra note 43, para. 155.

Some Preliminary Reflections on the Mens Rea Requirements

25

Indeed, it is conceivable that the perpetrator acts with dolus specialis, but in concreto only causes the death of particular members of this group by negligence, because he first intended to fulfil a different alternative . In any case, the interpretation of the term "meurtre" has also been confirmed in Rutuganda." Accordingly, the (ambiguous) mode of commission of "killing" is to be understood in the (unambiguous) sense of the French version ("meurtre") and in accordance with article 311 of the Rwandan Penal Code as intentional killing : The killings are intended to bring about the destruction (over the long-term) of the group, by virtue of the fact that either the same perpetrator continues to kill members of this group or knows that others are doing SO.54 Article 6 (c) requires that conditions of life "calculated" to bring about the destruction of the group in question are "deliberately" ("intentionelle" according to the French, "intentional" according to the Spanish version) imposed on it. This apparently superfluous reference to the mens rea of the offence can be explained by the fact that the drafters of the ICC-Statute did not want to focus on the concept of intent in general, but rather on the concept of "premeditation" ,55 i.e. on a planned, intentional commission of the offence." This creates the link between the conditions of life of the group and the intended destruction. Premeditation transcends normal intention as it implies consideration or even planning prior to the commission of the offence; thus, the concurrence of the decision to commit the offence and the execution of this decision is not sufficient.f Accordingly, the corresponding fourth Element of "genocide by inflicting conditions of life" reads: "The conditions of life were calculated to physically destroy that group, in whole or in part"." This shows that the element of premeditation is not contained in the term "deliberately" - it only expresses the general intent in accordance with article 30-

53

54 55

56

Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgement and Sentence, 6 Dec. 1999, para. 49 et seq. Cf also Gil Gil, supra note 27, 259. Cf article 132-172 French Code Penal and Desportes/Le Gunchec, Le nouveau droit penal , (6th ed. 20(0), 407-408 on this figure which still exists as a ground for increasing the penalty in French law. Drost, The Crime of State /I. Genocide (1959), 82; Robinson, The Genocide Convention. A commentary (1960) , 60; Schabas, supra note 4, 243; also International Law Commission, in YblLC 1996 II 2, 46, para . 15 fn. 124.

57

Cf also Roxin, supra note 24, § 12 mn. 117.

58

Elements , supra note 2, 7 (emphasis added) .

26

Chapter 2

but in the word "calculated". The destruction must not only be intentional , but it must be calculated in a cool and preconceived fashion." Furthermore, article 6 (d) covers measures intended ("visant", "destinadas") to prevent births within a group. This element also contains a deviation from the general requirement of intent, as the wording implies markedly wilful conduct with the objective of preventing births within the group.

B. Crimes against Humanity (Article 7) Article 7 requires that its sub-crimes be realized "as part of a widespread or systematic attack directed against any civilian population'V" On the subjective level, the chapeau requires that the perpetrator have "knowledge" of this attack. The dogmatic classification of this subjective element as a component of general intent or as a specific subjective element of the offence is problematic . The requirement that the perpetrator act "as part of a widespread or systematic attack", etc., describes the "attendant circumstances" of his conduct." In other words, the perpetrator's action is placed in a particular context of commission, which makes it a crime against humanity. The context element can also be called international or collective element, it refers to the collective action - the widespread and systematic attack - and must be distinguished from the individual acts contained in the different sub-crimes of article 7.62 According to article 30 (3) the intent must also extend to this contcxt.P The perpetrator must have been aware of this context and, thus, also of the attack . The

59

60

61

62

63

Gil Gil, supra note 27, 216-217 , 260 considers "conciencia y voluntad directa " to be neccssary. Cf. also Schabas, supra note 4,243-244 and Prosecutor v. Musema , supra note 43, para. 157: "methods ... aimed at their physic al destruction". Dissenting Fronza, 'Genocide in the Rome Statute ', in Lattanz i/Schabas (eds .), supra note 4, 125. See on the actus reus of crimes against humanity recently McAuliffe de Guzman , 'The Road from Rome : The Developing Law of Crimes against Humanity' , 22 Human Right s Quarterly 335-403, at 360-61 (2000) and Werle, ' Volkerstrafrecht und geltendes deutsches Strafrecht ' , 55 Juristenzeitung 755-760, at 756-757 (757) (2000) . See also Ambos/Wirth, The Current Law of Crim es Against Humanity, 13 Cr. Law Forum , issue 1 (2002) . Cf also McAuliffe de Guzman , supra note 60, 398-399. Cf Werle, supra note 60, 756-757 (757) , who convincingly distinguishe s between "Gesarnttat" and "Einzeltat(en)" . Dissenting Ahlbrecht, 'Geschichte der volkerrechtlichen Strafgerichtsbarkeit' in 20. Jahrhundert, 1999, 312: objective condition of punishability.

Some Prelim inary Reflections on the Mens Rea Requ irements

27

explicit reference to knowledge in article 7 (1) is only declaratory; it does not go beyond article 30 (3).64 On the other hand, at the very least, "awareness" in the sense of article 30 (3) must be required /" That the knowledge of the attack has nothing to do with the actual actions of article 7, e.g., killing, torture or rape, may speak against the declara tory nature of the knowledge element. To a certain extent, it is external to these action s in that it creates a subjective reference to the general context that characterizes crimes against humanit y. However, it must not be overlooked that the context clement of crimes against human ity is part of the actus reus and therefore become s the object of the intent requirement in the sense of article 30 (3). As a consequence, "knowledge of the attack" is not a (special) subjective clement, but rather part of the general intent within the meaning of article 30. The quest ion remains of what the knowledge of the perpetrator must relate to. To the existence of an attack against the civilian population? To the nature of this attack (widespread or systematic) ? To the political and ideological principles of the attack that render it systemat ic? This issue already proved to be controversial in the Preparatory Committee since it determines, in practice, the effectiveness of article 7. The answer is made even more difficult by the contradictory relationship of paragraphs I and 2 of article 7. While paragraph I requires a widespread "or" systematic attack, paragraph 2 (a) defines the attack as "a course of conduct involving the multiple commis sion of acts referred to in paragraph I .. , pursuant to or in further ance of a State or organi zational policy to commit such attack" .66 Number 3 in the introduction of the Element s for article 7 adopts the exact wording explaining that the multiple acts need not necessarily constitute a military attack, and the "policy to commit such attack" implies that the state or the organization in question promotes or encourages such an auack," According to the traditional view, the policy element is already contained in the term "systematic"68 and would, were one to follow the alternative wording of para-

64

65

66 67

68

Also Robin son, 'D efining "Cr imes against Humanity" at the Rome Conference' , 93 AJiL 4357, at 51-52 (1999). McAuli ffe de Guzman, supra note 60, 388 et seq., 394 et seq. (399-400), who correctly rejects the requirement of "specific intent" but considers "willful blindne ss" or "constructive knowled ge" to be sufficient, on the basis of the US Model Penal Code. Empha sis added.

Cf Elements, supra note 2, 9, Introduction, no. 3: " .. . that the state or organization actively promote or encourage such an attack against the civilian population" .

C/. e.g. recently Prosecutor v. Biaskic, Case No. IT 95-14 , Judgement, 3 Mar. 2000, para. 203 with further referen ces.

28

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graph I, be superfluous. It is required that the attack be widespread or systematic, i.e., a widespread attack would be sufficient to fulfil- on the objective level- the context or collective element of article 7. Such an understanding is also supported by an interpretation guided by the good faith principle (article 31 (I) Vienna Convention of the Law of Treaties) on the basis of which one could argue that article 7 (2) cannot take away what has been achieved by the formulation in the alternative in paragraph I. The problem with this interpretation is that it would literally reverse the intention of the drafters of the Rome Statute and the Elements since they wanted to emphasize the policy clement. This is achieved by the cumulative formulation in paragraph 2 of article 7 according to which the attack must not only involve a multiple commission, i.e., be widespread, but also be based on a policy, i.e., be systematic. Thus, the policy element constitutes a requirement in addition to the widespread nature of the attack. The tautology with respect to the definition of the term "systematic", which this view implies, can be avoided if one distinguishes the systematic nature of an attack from the policy: a systematic attack is regularly based on a policy but a policy does not always find its expression in a systematic attack." Returning to the initial question of the object of knowledge, one must not overlook the fact that a requirement that the perpetrator have precise knowledge of the policy or plan upon which the crimes against humanity are based would mean that the requirement would be virtually impossible to prove. The planning of a criminal policy is typically reserved for the inner circle of leaders who make every effort to ensure that the outside executors only know what is strictly necessary in order to carry out their tasks . On the other hand, if satisfied with mere knowledge of the attack as such , one is left open to the objection that such low requirements for intent do not correspond to the significance of the "policy element" for the nature of the crime against humanity. The solution in the Elements after the first reading was as follows : Consistent with the general principles of law defined in article 30, it is presumed that all conduct described in the elements must be intentionally committed and the clements do not repeat the general intent implied in each

69

On the entire subject , cf. also Robinson, 'Crimes against Humanity : Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience' in Lattanzi/Schabas (eds.) , supra note 4, pp. 139-169, at 152 et seq. and McAuliffe de Guzman, supra note 60, 371 et seq. (374) , who also arrives at the result that the "policy element cannot be interpreted as the equivalent of systematicity".

Some Preliminary Reflections on the Mens Rea Requirements

29

action.. . . The first two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, this element should not be interpreted as requiring proof that the accused had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the second element indicates that the mens rea is satisfied if the accused intended to further such an attack . As always, existence of knowledge or intent can be inferred from relevant facts and circum-

stances." In substance, this proposal was also retained in the final version of the Elements; it was only split and can now be found - as to the first paragraph and the last sentence of the second paragraph - in the general introduction of the Elements and as to the knowledge requirement - in the introduction to article 7.7' Several useful conclusions can be drawn from the final wording. First of all, it confirms the applicability of article 30. Secondly, it introduces the concept of "contextual elements" for the circumstances contained in the chapeau to article 7. Finally, an attempt is made to lower the subjective threshold by, on the one hand, rejecting a requirement of knowledge of the precise details of the policy on which an attack is based, and, on the other, by proclaiming - in result - a kind of presumption of intent if the conduct is part of an "emerging widespread or systematic attack against a civilian population". In this case, the perpetrator must further the attack, whereby both her intent to further and knowledge can be derived from the relevant facts and circumstances." According to the last element of each crime against humanity," both knowing and intentional action are sufficient for the conduct to be part of a large-scale attack . Thus, the perpetrator must either know that

70 7\

72

73

PrepComm. supra note 16,7 (emphasis added). See supra note 9 andaccompanying text. Also, the contextelement as referred to in the first sentence of the second paragraph is no longercontained in the first two but in the last two elements of each crimeagainst humanity (see supra note 8). For a similarview, cf also Robinson, supra note 64,52: "Giventhe inescapable notoriety of any widespread or systematic attack ..., it is difficult to imagine a situation where a person couldcommita murder(for example) as partof suchattackwhilecredibly claiming to have beencompletely unaware of that attack".

See supra note 8.

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he did not act in isolation, but as part of a widespread or systematic attack or intend to further the attack; he is not, however, required to have detailed knowledge of this attack ." This interpretation is confirmed by the relevant case law. The Supreme Court of the British Zone (Oberster Gerichtshoffur die Britische Zone in Strafsachen OGHBrZ) held that the perpetrator of a crime against humanity must be aware that his conduct took place in the context ofthe nationalist-socialist system of arbitrary domination and that she committed the victim to this system." In lmre Finta, the Canadian Supreme Court required that the perpetrator have knowledge of the "factual qualities" that made his conduct a crime against humanity (or a war crime)." In the first instance Tadic judgement, the ICTY demanded that the perpetrator know that the offences "were occurring on a widespread or systematic basis" ." In Kayishema/Ruzlndana, the ICTR required "actual or constructive knowledge of the broader context of the attack", including knowledge that the crimes were committed "pursuant to some policy or plan"." The Appeals Chamber in Tadic does not even refer to the policy or plan upon which the crime is based, but only requires that the accused know that his conduct falls under a "pattern" of widespread and systematic crimes and is related to attacks on the civilian population,"? From the above it is clear that the requirements for knowledge of a particular "policy" or of a plan may not be set too high . The Trial Chambers require only a general, imprecise knowledge ("some"). Even this requirement from Kayishema/ Ruzindana is put into relative terms by the fact that detailed knowledge with respect to a genocidal destruction plan is expressly rejected.s" In Ruggiu, the

74

75

76

77

7R

AlsoDixonin Triffterer (ed.), supra note 4, article7 mn. 15;Sunga, 'The crimes withinthe jurisdiction of the International Criminal Court', 6 EurJ.CrimeCr.L.CrJ. 377-399, at 388 (1998); also McAuliffe de Guzman, supra note 60, 381 et seq. (402). See,e.g., I Entscheidungen des Obersten Gerichtshofes furdie Britische Zonein Strafsachen [OGHStj, 167, 169-170. OntarioCourtof Appeal, ILR98, 520-663, at 627-628; SupremeCourtof Canada,CCC(3d) 88 (1994), 417-544, at 505-06. Prosecutor v. Tadic, Case No. IT-94-1, Opinionand Judgment, 7 May 1997, para. 656,659 ("were occurring on a widespread or systematic basis"). Cf. Prosecutor v. Kayishema/Ruzindana, supra note 15,para. 133-34, emphasis added;also Prosecutor v. Rutaganda, supra note 53, para. 70; Prosecutor v. Kupreskic et al., supra note 26, para.556 et seq. (557).

79

Prosecutor v. Tadic, Case No. IT-94-I-A, Judgement, 15July 1999,para. 248, 271.

80

Cf, above note 23 and accompanying text.

Som e Prelim ina ry Refl ection s on the Men s Rea Requ irem ents

31

Chamber refers simultaneously to the standard applied in Tadic and the standard applied in KayishemalRuzinda na ; thus, it does not see m to see a difference between the twO.81 On the other hand, it is equally clear that entirely omitting a knowled ge requirement would be going too far since it would violate the principl e of guilt." As to the "policy" and "plan" the threshold is further lowered in that it is understood that a programmatic or written policy stricto sensu is not required but that the concepts have a broader meaning in the sense of a planned, led and organized in contrast to a spontaneous and isolated - commission." In Tadic it was stated that: [T]here must be some form of policy to commit these acts. [.. .] Importantly, however, such a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formali zed or not. 84 In this context, it is also worth mentioning that the wordin g "wi th knowledge of the attack" was seen by the drafters of the Rome Statute as a restriction compared to a broader Canadi an proposal (" .. . when knowingly committed ... "), by which it was implied that the knowled ge refers to the entire act, not only to the attack." In sum, the perpetrator must have the general knowledge that the offences were part

81

82

83

84

85

Prosecutor v. Ruggiu, supra note 25, para. 20.

This appears to have been overlooked by McAuliffe de Guzman, supra note 60, 402: she views the systematic or widespread attack as the object of intent, but separates the poticy requirement from this and does not demand knowledge. Cf. Robinson, supra note 64, 48-49, 50-51; Robinson, supra note 69, 156 et seq. (16 1 et seq.); von HebellRobinson, supra note 4, 97: "flexible test"; also Boot, Commentary (Prosecutor v. Tadic, Case No. IT-94-1) in Klip/Sluiter (eds .), Annotated Leading Cases of International Criminal Tribunal s. The International Criminal Tribunal fo r the fo rmer Yugoslavia 1993-1998, (1999), 452-456, at 455; Human Rights Watch (HRW), Commentary on the 4th Preparat ory Commi ssion Meetin g for the ICC, Mar ch 2000 ,5.

Prosecutor v. Tadic, sup ra note 77, para. 653. Cf also Prosecutor v. Kupreskic et al., supra note 26, para. 551 et seq., 556 et seq .: Prosecutor v. Blaskic, supra note 68, para. 204: "This plan . .. need not necessarily be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events". (fn. omitted); para. 205: "Nor must the plan necessarily be conceived at the highest level of the State machinery". Cf Robinson, supra note 64, at 51-52; von Hebel/Robinson, supra note 4, 98 fn. 55; on another proposal cf ibid., 95 fn. 47.

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of a widespread attack against a civilian population that was based on a policy in a broad sense."

C. War Crimes (Article 8) While in article 7 an intent requirement regarding the chapeau follows from the wording, article 8 (I) contains no such indications. It is generally agreed that the existence of war crimes depends on an armed conflict of a particular severity'? and that the offences must be directed at protected persons or objects." In contrast, the additional requirement in article 8 of commission as "part of a plan or a policy or as part of the commission [.. .] on a large scale" is a restriction not required by international humanitarian law.89 In any case the wording "in particular" - in contrast to "only", which was favoured by some states - makes clear that these requirements are not essential , but merely "factors which should be taken into account" ,90 for example, if the prosecutor takes a decision according to article 53 (I)(c). Also, they are not elements of the offence but only constitute jurisdictional requirements. The question remains how the requirements of an armed conflict and an attack against protected persons and objects, that had been generally agreed upon, are to be read: wholly objectively, as jurisdictional elements, or subjectively, as circumstances within the meaning of article 30 (3), so that they must be intended by the

86

87

88

89

90

Also von Hebel/Robinson, supra note 4,98 fn. 55; cf. also Robinson, supra note 64, at 51-52; Robinson, supra note 69, 164-165. Cf. the threshold clause of article I (2) Additional Protocol and article 8 (2) (d) and (f) . Cf. Ambos, 'Zur Bestrafung von Verbrechen im intemationalen, nicht-intemationalen und internen Konflikt' , 18 Vierteljahresschrift fiir Sicherheit und Frieden 12-24, at 15 et seq., 1819 (2000) on the individual requirements. Sunga , supra note 74, at 392; Fenrick , in: Triffterer (ed.), supra note 4, art. 8 Inn. 4; Fischer, 'The Jurisdiction of the International Criminal Court for War Crimes : Some Observations Concerning Differences between the Statute of the Court and War Crimes Provisions in other Treaties', in Epping/FischerlHeintschel von Heinegg (eds.) , Festschrift fur Knut Ipsen (Miinchen 2000), 77-10 I, at 85; crit. also Askin, 'Crimes within the jurisdiction of the International Criminal Court', 10 CLF 33-59, at 50 (1999), stating that this requirement "should not be a constituent element of the crime which must be established by the prosecution " . Cf. Fenrick, in Triffterer (ed.), supra note 4, art. 8 mn. 4; previously in a similar vein Ambos, 'The Legal Basis of the ICC', in ArbourlEser/Ambos/Sanders (eds.), The Prosecutor of a Permanent International Criminal Court , Freiburg i. Br. 2000, pp. 3-40, at 22.

Some Preliminary Reflections on the Mens Rea Requirements

33

perpetrator. Only if the latter is true, afurther question arises, viz., which specific requirements are to be made of the intent with regard to these elements. This eminently practical question was discussed for the first time at the intersessional meeting of the Preparatory Commission in Siracusa, Italy, in February 2000. The focus of the discussion was whether the requirement of an armed conflict must be covered by the intent, i.e., whether it is required that the perpetrator at least was aware of the existence of an armed conflict when he committed war crimes. Two opposing positions have developed in accordance with the dichotomy described above. We can call them an objective public international law approach and a subjective criminal law approach (hereinafter "objective" and "subjective" approach) . The objective approach in Siracusa represented by Belgium and France and the representatives of the ICRC, the Office of the Prosecutor of the ICTY and ICTR and several NGOs, among others," is justified through the purpose of international humanitarian law. This purpose is to counter the increased risk of factual non-prosecution of serious crimes during an armed conflict by creating a supranational criminal law regime to replace imperfect national criminal prosecutions. This humanitarian law regime constitutes only a parallel regime of competence to the national law.? Accordingly, to date, the case law of the ad hoc Tribunals has always viewed armed conflict as a mere "jurisdictional element". Finally, it should be noted that the drafters of the Rome Statute could have included a requirement of intent in the chapeau - as in article 6 and, in particular, article 7 - had they desired to do SO .93 The subjective approach, represented by Germany, Italy, Argentina, Canada and the United States of America, bases its argument on the divergent nature of ordinary crimes and war crimes . The higher degree of blameworthiness associated with a war crime can only be justified if the perpetrator was also aware that he acted in th e context of an armed conflict and, therefore, co mmitted a war crime.

These two positions continue to be irreconcilably opposed . Accordingly, the final report from Siracusa reads:

91

92

93

Cf e.g. HRW, supra note 83, 3. Also in favour of a "jurisdictional element": Fenrick, in Triffterer (ed.), supra note 4, art . 8 mn. 4; General Zimmermann, in ibid., article 5 mn. 9; also Arsanjani, 'The Rome Statute of the International Criminal Court' , 93 AJIL 22-43, at 33 (1999) and Ahlbrecht, supra note 63, 316; Boot, supra note 83, 456 leaves question open. The argument is also applicable to intra-state limitations of jurisdiction in a federal state with criminal law codes each individual state , e.g. the USA (cf Fletcher, Rethinking criminal law, (1978) ,690-91 ,714 et seq.: Fletcher, supra note 30,149). ICRC, Non Paper, 27 Jan . 2000 , 3; also HRW, supra note 83, 3-4.

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For Genocide and Crimes against humanity, a particular mental element will be listed. For War crimes , no mental element as to the context will be listed. The issue is left open . . .94 Thus, the problem has proved too complicated for a consensual solution. As was already mentioned, the final version of the Elements opted for a knowledge requirement limited to the existence of an armed conflict, excluding its international or non-international character," This is not a completely satisfying solution. On the merits, the subjective approach would appear to be preferable .s- The objective approach makes the "contextual element" an objective condition of punishability/criminal liability (objektive Strajbarkeitsbedingung) and thus conflicts with the principle of guilt." If one considers - in accordance with the majority view in German doctrine - that the question whether a particular element of the actus reus requires the perpetrator's intent, i.e., that it cannot be considered as an objective condition of punishability, depends on the relevance of this condition for the wrongfulness of the conduct (Unrechtsrelevanz) in question," the crucial question is whether the "contextual clement" of armed conflict influences the content of wrongfulness (Unrechtsgehalt) of war crimes pursuant to article 8. If this is the case, i.e., if this element increases the content of wrongfulness of the actions in question, the intent of the perpetrator must also be related to it if a violation of the principle of guilt is to be avoided . The answer to this question results from a comparison of courses of conduct punishable according to both general criminal law and article 8. This applies, for example, to killing (article 8 (2)(a)(i)), the destruction and appropriation of property (article 8 (2)(a)(iv» and rape (article 8 (2)(b)(xxii)-I). If these offences are

94

95 95a

96

97

PrepComm , Working Group on Elements of Crimes. Outcome of an intersessional meeting of the Preparatory Commission for the International Criminal Court held in Siracusa from 31 January to 6 February 2000, PCNICCI2000IWGEC/INFII , 9 Feb. 2000, 6 (emphasis added). See supra, note 10. C]. Also KreB, War Crimes committed in non-international armed conflict etc., 30 IYHR 103, at 126-7 (2000).

Similar to the traditional tendency of United States criminal law to objectivize individual responsibility as a "strict-liability " (cf most recently crit. Kadish, 'Fifty years of criminal law: an opinionated review' , 87 Californ ia Law Review 943-972, at 954 et seq. [1999]). Cf. Geisler, Zur Vereinbarkeit objektiver Bedingungen der Strajbarkeit mit dem Schuldprinzip , (1998), 130 et seq.

Some Preliminary Reflections on the Mens Rea Requirements

35

punishable according to general national criminal law or international criminal law depends, in objective terms, on the existence of an armed conflict and the characterization of the object of the offences as protected persons or objects. Thus, these elements have the effect of increasing the wrongfulness of the acts in question, at least if one assumes that a war crime has a higher content of wrongfulness than a comparable ordinary crime. This wrongfulness-increasing effect alone would prohibit the characterization of the aforementioned elements as objective conditions of punishability. As to criminal responsibility in concreto we can distinguish between three situations: - The offences occur in peacetime. - The offences occur during an armed conflict but are not related to this conflict, viz. occur only on the occasion of this conflict. - The offences occur during an armed conflict and are related to this conflict. It is obvious that in the first situation only criminal responsibility according to general criminal law is triggered. In the second and third situations, during an armed conflict, both general national criminal law and international criminal law could be applied. It is obvious that ordinary crimes can also be committed during an armed conflict. The peacetime criminal justice system is not replaced by the wartime system, but the two systems exist simultaneously and thus the question of their delimitation arises . In this respect, the Elements concentrate on whether the conduct "took place in the context of and was associated with an [international] armed conflict [not of an international character]"." Thus, there seems to be agreement that the mere commission of an offence on the occasion of an armed conflict does not make it a war crime. If the perpetrator uses the general chaos brought about by the outbreak of war to "settle old debts" and kills his neighbour, this offence is - to be sure - not a war crime for the rather formal reason that the neighbour is not a protected person according to the IV Geneva Convention;"? however, it is also not a war crime because the act is not related to the armed conflict since the perpetrator wanted to kill the neighbour regardless of its existence and did so . This is even more obvious in the following case . If a group of rioting young football hooligans destroys several automobiles, this damage to

98 99

See supra, note 10, Element no. 4. According to article 4 of Geneva Convention IV of 1949, civilians "who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals" are protected.

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property does not become the war crime of destruction of property according to article 8 (2)(a)(iv) simply becau se it occurs objectively during an armed conflict. Similarly, a rape punishable under general criminal law in peacetime does not become a war crime of rape according to article 8 (2)(b)(xxii ) simply because war has broken out overnight. The perpetrator in all these cases only turns into a "war criminal" if his conduct, as correctly required by the Elements, took place in the context of an armed conflict. However, this context cannot be merely objectively determined but results from the attitude of the offender toward s the offence. If the perpetrator acts independently of the armed conflict , if he does not even know that an armed conflict is taking place , then his conduct does not take place within the context of this conflict, it is merely a coincidence that they occur simultaneou sly. However, if the perpetrator acts in the awaren ess of the ongoing armed conflict, if he even benefit s from it, this awareness is the link between his conduct and the armed conflict. Thu s, the link with the armed conflict is formed or created by the imagination of the perpetrator and not only based on mere objective circumstances . It is sufficient that the perpetrator was aware of the factual circumstances of an armed conflict. Th e introduction to the Elements of War Crimes read s: There is only a requirement for the awareness of the fa ctual circumstances that establi shed the existence of an armed confl ict that is implicit in the term s 'took place in the context of and was associated with ' .100 Similarly, the intent requirement must be formulated with respect to the nature of the confl ict as international or non- international, since there are courses of conduct which render a person criminally liable in international conflicts but not in noninternational conflicts. '!" Thu s, the punishment according to one or the other category of "war crimes" can only be explained by the fact that the perpetrator was aware that he acted in one or the other type of conflict. Th e Elements, however, omit the requirement of intent in this context completely:

100 101

Elements, supra note 2, 18 (emphasis added). E.g., the use of poison or poisonous weapon s is punish able in an international, but not in a non-int ernational conflict (article 8(2)( b)(xvii)). Anoth er important example is article 8(2)(b)(iv) as to the damage to the natural environment since this is a crime which not only according to the ICC Statute but also according to existin g customary international law is not applicable in a non-international armed conflict. Cf also the far longer list in article 8(2)(a) and (b) as compared to paras (c) and (e).

Some Preliminary Reflections on the Men s Rea Requirements

37

In that context there is no requirement for awaren ess by the perpetrator of the fa cts that established the cha rac te r of the conflict as international or noninternational. 102 This would only make sense if article 8 did not retain the distinction of crimes comm itted in international and non-international conflicts. As long as this distinction is maintained , it must have an impact on the intent requirement, if factual knowledge with respect to the existence of an armed conflict, as correctly stated in the Elements, is required. On the other hand, it must be admitted that the main difference in terms of the content of wrongfulne ss lies between crimes committed in peacetime or on the occasion of an armed conflict and those committed in the context of an armed conflict whereas the difference between crimes committed in an international and those committed in a non-international conflict is a minor one. As to the lex lata it is limited to the few crimes that are punishable in an international, but not in a non-international armed conflict.'?" A parallel reflection with respect to the element of the offence regarding protected persons or objects also indicates the need for a requirement of intent. It is generally agreed that intent must relate to protected persons and objects. In the language of article 30, these elements constitute a "circumstance" of which the perpetrator must be aware. The corresponding Elements require that the perpetrator be aware of the "factual circumstances that establish this status [as a protected person or protected object]" . 103 If, however, the perpetrator is required to have knowledge of the factual circumstances, this implies similar knowledge with regard to the existence of an armed conflict, since protected persons or objects - as typical concepts of the laws of war - can only exist during such a conflict. Finally, the subjective approach is more convincing regarding the interpretation of article 7. In both article 7 and article 8, a particular context is necessary for the conduct at issue to be treated as an international crime. Where article 7 refers to action "as part of a widespread or systematic attack against the civilian

102

102,

IOJ

Elements, supra note 2, 18 (empha sis added). For this very reason the German Code of International Criminal Law, that entered into force 29 June 2002 (SGBI 2000 I, p. 2254), does not distinguish any more between crimes committed in an international or non-international conflict, see Art. I, para. 8 et seq.; for an English Translation see .

Cf, e.g. Element 3 of article 8 (2)(a)(i), supra, note 10; similarly, e.g., also Element 5 of article 8 (2)(a)(iv) regarding protected property.

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population", article 8 places the action in the context of an (international or noninternational) armed conflict. It would therefore be inconsistent if intent were necessary in one case , while in the other not even factual knowledge of the attendant circumstances were required. The case law of the ad hoc Tribunal s does not contradict this interpretation.I'" It is certainly correct that the ICTY has, to date, viewed the requirement of armed conflict only as a "jurisdictional element". In the Tadic judgement, for example, the following is said : For a crime to fall within the jurisdiction of the International Tribunal , a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law. [. ..] this Trial Chamber needs to be satisfied that each of the alleged offences was in fact closely related to the hostilities. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities [... ].'05 The judicial precedents, however, only discuss the issue within the framework of the jurisdiction of the Court and state only the undisputed , namely, that the incriminating conduct must take place in the context of an armed conflict. The truly controversial question is, however, whether the elements in question can also be viewed as attendant circumstances according to article 30 (3) beyond their charac terization as "j u risdic tio n al elem ents", and thus whether knowledge of them is

required. This question would need to be discussed within the framework of individual responsibility for war crimes ; in this part of the judgements, however, only - if at all - discussions of the objective and subjective requirements of the individual offences against the laws of war can be found .'?" In sum, the case law, like the Preparatory Commission, has left the question open.

104

IDS

106

However it is quoted by the supporters of the objective intemationallaw view in this sense tcf, e.g. HRW, supra note 83, 4). Prosecutor v. Tadic, supra note 77, para. 572, 573. Also Prosecutor v. Tadic, supra note 79, para. 249, 252 (on Article 5 of the Statute of the ICTY); Prosecutor v. Delalic et al., Case No. IT-96-21, Judgement, 16 Nov. 1998, para. 193, 195; Prosecutor v. Furundiija, Case No. IT95-17/1 , Judgement, 10 Dec. 1998, para. 60; Prosecutor v. Bla1kic, supra note 68, para. 68. Cf. Prosecutor v. Delalic et al., supra note \OS, para. 419 et seq.; Prosecutor v. Furundiija, supra note lOS, para. 134 et seq. In contrast, this is not discussed in Prosecutor v. Tadic, supra note 77.

Some Preliminary Reflections on the Mens Rea Requirements

39

Be that as it may, in prosecution practice, the subjective approach - knowledge of the factual circumstances of the existence of an (international or non-international) armed conflict - will hardly be distinguishable from the objective approach - assumption of an objective condition of punishability. The reason is that the international case law derives intent, particularly its cognitive element (knowledge), from objectively determined facts and circumstances anyway. It uses classical circumstantial evidence.l'" This judicial practice has also influenced the Elements, where the general introduction reads : "Existence of intent and knowledge can be inferred from relevant facts and circurnstances'U'" However, if it is determined in a particular case that the conduct of an accused party took place in the context of an armed conflict, e.g ., because he was the commander of a prison camp'P? or was involved in offences in military headquarters, the objection that he had no knowledge of this armed conflict can be rejected as a mere self-serving declaration. Even if the subjective approach would lead to insurmountable prosecution and proof problems, as was suggested in particular by some NGGs, 110 this must be accepted in the interest of an international criminal law based on the rule of law and, in particular, on the principle of guilt. In the light of the dictum of the International Military Tribunal that "mass punishments should be avoided"!'! and the always difficult task to separate the guilty from the innocent, 112 modem inter-

107

108 109

110 111

112

C]. Volk, 'Dolus ex re' in HaftlHassemerlNeumannlSchild/Schroth (Hrsg.), Strafgerechiigkeit. Festschriftfiir Arthur Kaufmann zum 70. Geburtstag (1993), pp. 611-624, at 613 et seq ., 619 on its original derivation from the "dolus ex re", i.e. from the intent which follows from a particular (external) commission of an offence . Cf Elements, supra note 2, 5. Prosecutor v. Tadic, supra note 77, para . 575; Prose cutor v. Delali c et aI., supra note 105, paras 196-197. Cf e.g . HRW, supra note 83, 4.

The Trial of the Major War Criminals , supra note 20, at 469. The IMT further stated: " .. . the Tribunal should make such declaration of criminality [of an organization or group 1so far as possible in a manner to ensure that innocent persons will not be punished". See U.S. v. Krauch et al. (case 6), VIII Trial of War Criminals (US Government Printing Office), 1081-1210, at 1126: " . .. we are unable to find once we have passed below those who have led a country into a war of Aggression, a rational mark dividing the guilty from the innocent. .. . the mark has already been set by the Honorable Tribunal in the trial of the international criminals. It was set below the planners and leaders .. . who were found guilty of waging aggressive war, and above those whose participation was less and whose activity took the form of neither planning nor guiding the nation in its aggressive ambitions. To find the defendants guilty of waging aggressive war would require us to move the mark without

40

Chapter 2

national criminal law cannot pursue the objective of punishment of all possible suspects at all costs l!'! As a result, an intent requirem ent could only be questioned if more than mere factual knowledge were required . However, this is not the case as can clearly be seen from the Elements 114 and the whole analysis ju st made.

III. CONCLUSION

The thoughts expressed in this paper are of a preliminary nature and are part of an ongoing process of reflection. Their purpose was to show that the General Part of Intern ational Criminal Law, in particular the mens rea element , is a highly complex and interesting subject that deserves closer attention from scholars, including and in particular those from common law systems. The elements of individual responsibilit y and the "defences" as codified in the Rome Statute require further clarification and elaboration. I IS If this paper has been able to provide some critical input, it has served its purpose. If it also comes close to satisfying the great expectations and demand s of the person to whom it is dedicated , my primary goal will have been met.

finding a firm plac e in which to reset it. We leave the mark where we find it, well satis fied that individuals who plan ... an aggressive war should be held guilty . . ., but not those who merely follow the leaders .. ." 113

In particul ar human rights organizations, otherwise in favour of the fair-tria l principle, should not be guilty of using doubl e standards.

114

See supra notes II and 13.

115

1 attempted this with my study "De r Allgemeine Teil etc.", supra note 2.

3

THE IC] STATUTE, THE CHARTER AND FORMS OF LEGALITY REVIEW OF SECURITY COUNCIL DECISIONS Gaetano Arangio-Rui:

I. INTRODUCTION l Theoretically, as everybody knows, the issue of the legality of the acts of United Nation s political organs - notably of the Security Council - could be placed before the International Court of Justice (ICJ) in a number of ways. One way would be for one or more States to submit the issue to the Court by means of some kind of

1

Bibliographical note: Hud son M. 0., The Permanent Court of Intern ational Justice 19201942, 1943 ; Kelsen H., Law of the United Nation s, 1951; Azevedo P., Diss. Op. in Peace Treaties, ICJ Reports, 1950, p. 82 ; Rosenne Sh., The World Court , What it is and How it Works, 1962; Fitzmaurice Sir Gerald, Sep . Op. in Expen ses, ICJ Reports, 1962, p. 198 ff.; Schachter, The Qua si-Judicial Role of Securi ty Coun cil and the General Assembly, in 58 AJIL (1964), p. 960 ff.; Rosenne Sh., The Law and Practice of the Internat ional Court, 1965 ; Higgins R., Policy Con siderations and the International Judi cial Process, in 17 International and Comparative Law Quarterly ( 1968) , p. 58 ff.; Benvenuti P., L'accertamento del diritto mediante i pareri con sultivi dell a Corte interna zionale di giustizia, Milano, 1985; Cassese A., Return to Westphalia? Consid erat ions on the Erosion of the Chart er System, in Lowe V. and CasseseA. (cds.), The Current Legal Regulat ion of the Usc of Force, 1986, p. 505 ff.; Jennings Sir Robert, International Force and the International Court of Justice, in Lowe V. and Cassese A. (ed.), The Current Legal Regulati on , supra, p. 323 ff.; Schwebel S. M ., Diss. Op . in Nicaragua , ICJ Reports, 1986, p. 259 ff.; Acevedo D. E., Dispute s Under Con sideration by the U.N. Security Councilor Region al Bodie s, in Damrosch L. E (ed.), The International Court of Just ice at a Crossroads, 1987, p. 242 ff.; Damrosch L. E, Introdu ction, in Damrosch L. E (ed.) The International Court, supra, p. XVII ; Rostow E. V., Dispute s Involving the Inherent Right of Self-Defense, in Damro sch L. E (ed.), The Intern ational Court, supra, p. 264 ff.; Schachter 0., Dispute s Involving the Use of Force, in Damros ch L. E (ed.), The International Co urt, supra, p. 223 ff.; Brownli e I., The Decision s of Politic al Organs of the United Nation s

L.c. Vohrah et al. (eds.), Man 's Inhumani ty to Man, 41-64 ©200 3 Kluwer Law Internati onal. Printed in the Netherlands.

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Chapter3

recours en annullation for exces or detournement de pouvoir. A second way would be for the issue to arise within the framework of an inter-State dispute brought to the Court by one or more of the parties . A third way would be for the issue to be placed before the Court, principally or incidenter, in an advisory procedure.

and the Rule of Law, in Macdonald R. S. (ed.) , Essays in Honour of Wang Tieya, 1991; Schwebel S. M., Relation s Between the International Court of Justice and the United Nations , in Melanges Michel Virally, Le droit international au service de la paix, de la justice et du developpement, Paris, 1991, p. 431 ff.; Weckel P., Le Chapitre VII de la Charte et son application par Ie Conseil de Securite, in Annuaire francais de droit int. (1991) , p. 165 ff.; Bedjaoui M., Diss. Op. in Lockerbie, ICJ Reports 1992, p. 32 ff.; Franck T. M., The Powers of Appreciation? Who is the ultimate Guardian of UN Legality ", in 86 AJIL (1992), p. 519 ff.; Lachs M., Sep . Op. in Lockerbie, ICJ Reports 1992, p. 26 f.; Paz Andrez Saenz de Santa Maria M., De maximis non curat praetor ... ? EI Consejo de Seguridad y el TIJ en el asunto Lockerbie , in XLIV Revista espanola de derecho internacional (1992), p. 327 ff.; Shahabuddeen M., Sep . Op. in Lockerbie case, ICJ Reports 1992, p. 28 ff.; Weeramantry C. J., Diss. Op. in Lockerbie, ICJ Reports 1992, p. 50 ff.; Bothe M., Les limites des pouvoirs du Conseil de Securite, in Dupuy R.-J. (ed.), The Development of the Role of the Security Council, 1993 p. 67 ff.; Conforti B., Le pouvoir discretionnaire du Conseil de Securite en matiere de constatation d'une menace contre la paix, d'une rupture de la paix ou d'un acte d'agression, in Dupuy R.J. (ed .), The Development, supra, p. 51 ff.; Franck T. M., The Security Council and "Threats to the Peace" : Some Remarks on Remarkable Recent Developments, in Dupuy R.-J. (ed.), The Development of the Role of the Security Council, 1993, p. 83 ff.; Gaja G., Reflexions sur le role du Conseil de securite dans Ie nouvel ordre mondial , in RGDIP, 1993, p. 298 ff.; Reisman W. M., The Constitutional Crisis in the United Nations, in Dupuy R.-J. (ed.), The Development, supra, p. 399 ff. ; Rubin A. P., Libya, Lockerbie and the Law, in 4(1) Diplomacy and Statecraft (1993), pp. 1 ff.; Watson G. R., Constitutionalism, Judicial Review, and the World Court, in 34 Harvard International Law Journal (1993) , p. 1 ff. ; Herdegen, M. J., The "Constitutionalization" of the UN Security System, in 27 Vanderbilt Journal of International Law (1994) , p. 135 ff.; Bedjaoui M., Nouvelordre mondial et controle de la legalite des actes du Cons eil de securite, Bruxelles, 1994; Combacau J., Le Chapitre VII de la Charte des Nations Unies : resurrection ou metamorphose", in Ben Achour, R. and Laghmani S. (eds), Les nouveaux aspects du droit international, Rencontres internationales de la Faculte des sciences politiques et sociales de Tunis, Paris, 1994, p. 139 ff.; Condorelli L., La Corte internazionale di giustizia e gli organi politici delle Nazioni Unite, in LXXVII Rivista di diritto internazionale (1994) , p. 897 ff.; Gowlland-Debbas V., The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case, 88 AJIL (1994), p. 643 ff. ; Caflisch L., Is the International Court entitled to review resolutions adopted by the Security Council under Chapter VII of the UN Charter?" , in Al-Nauimi N. and Meese R. (eds) , International Legal Issues Arising under the United Nations Decade of International Law, 1995, p. 633 ff.; Pellet A., The International Court of Justice and the Political Organs of the United Nations . Some Further but Cursory Remarks , in Salerno (ed.),ll ruolo del giudice internazionale nell' evoluzione del diritto interna zionale e comunitario. Convegno

The IC] Statut e. Charter and Forms of Legali ty Review of SC Decisions

43

An IC] direct review power, to be exercised on appeal again st a Security Council decision, cannot be envisaged, according to most commentators, de jure condito. The majority of writers are also inclined to think that such a direct review power would be difficult to envisage de jure condendo.? I share the view that there is at present no legal basis for such a form of IC] review.' Considering in particular the problems that the exercise of a direct judicial review would cause to the functioning of the security system as envisaged in the Charter - hopefully, though, not as presently practiced by the Security Co unci14 - no such review seems to be feasible except within the framework of a reform of that system: a reform that could only be achieved, in its tum, within the framework of a problematic structural reform of the organization.' It is worth adding, however, that although the development of a system of direct ("appellate") IC] review of United Nations political bodies' acts - particularly the Security Council 's - looks for the present problematic, one would be bound to envisage it more positively if the Securit y Council were to persist - espe cially by

di studi in mem ori a di Gaetano Morelli , 1995 , p. 115 ff.; Zic cardi Cap ald o G., Lockerbie, Verticalita della Cornunita Intern azion ale e Nazion i Unite. Un riesam e del caso Lockerbie, in Picon e (ed.), Interv enti delle Nazioni Unite e diritt o internaz ionale, 1995 , p. 6 1 ff.; Alvarez J. E., Jud ging the Security Coun cil, in 90 AJIL ( 1996), p. I ff.; Greenw ood C; The International Court of Ju stice and the use of force, in Low e V. and Fitzmaurice M . (eds), Fifty years of the International Court of Justice. Essays in Honour of Sir Robert Jenn ings, 1996, p. 373 ff.; Skubiszewski K., Th e Internation al Court of Justice and the Security Coun cil, in Lowe V. and Fitzmaurice M . (eds), Fifty years, supra, p. 606 ff. ; Bowett D. W., Jud icial and Political Fun ction s of the Securi ty Coun cil and the ICJ , in Fox H. (ed.), The Chan ging Co nstitution of the UN, 1997, p. 73 ff.; Jennings Sir Robert, The Role of the Internati onal Co urt of Justice, in 68 BYIL (1997), p. I ff.; Jenn ings Sir Robert , Diss. Op . in Lockerbie, ICJ Reports 1998, p. 64 ff .; Lauterpacht E., Judicial Review of the Acts of International Organisation s in Boi sson de Ch azourne L. and Sands Ph. (eds), Intern ational Law, the Intern ati onal Court of Justice and Nuclear Weapons, 1999, p. 92 ff .; Aran gio-Ruiz G ., On the Security Coun cil ' s " Law-making" , in LXXXIII Rivista di diritt o internazionale (2000), p. 609 ff. 2

3

Learned and exhaustive cla ssificati ons of the issues and main view s are especially those of Watson G. R., Con stitutionalism, supra, note I, Herd egen M. J ., The "Costitut ionalization". supra note I , and Alvarez, Jud gin g, sup ra note I. See Watson G. R., Constitutionali sm, supra note I; Paz Andr ez Saen z de Santa Maria M ., De ma ximis, sup ra not e I; Skub iszew ski K., The ICJ and the Security Coun cil, sup ra note I, p. 623 ff.

4

On the Security Council's" Law-M aking ", supra note I.

5

See espec ially Herdegen M. J., The "Constitutionalization" , supra note I.

44

Chapter 3

the practice of the so-caIled "Council-generated law" - in its tendency to step beyond the limits of its statutory powers" without the consent of all the States co ncerned." The present paper is intend ed to present a few thought s about the admissibility and the limits of the other two above-mentioned forms of review, namely, the "incidental" review in contentious proceedings and "principal" or "incidental" review in the advisory procedure. I propo se, in particular, tentatively to determine whether the said forms of review are subject to any restriction s other than those deriving from the Court's Statute.

II . REVIEW IN THE COURSE OF CONTENTIOUS PROC EEDINGS

A. Restrictive Positions Although the que stion of the ICJ' s competence "incidentally" to judge the legality of Security Council decisions in the course of the exerci se of its contentious jurisdiction is deemed to be admissible by a number of scholars," views are being expressed, at governmental as well as scholarly level, either excluding that possibility altogether (both de jure condito and condendo ) or admitting it only within more or less strict limits." Negative or restrictive views might claim to find some support in

6

On the Security Coun cil 's "Law-making", supra note I, p. 609 ff ., esp. para s 11-12 and 46(a).

7

Ibid., para. 46 (b).

8

9

Bothe M., Les limites des po uvoirs du Conseil de Securite, supra note I, at 69-70 and 80; Conforti B., Le pouvoir discretionnaire du Conseil de Securite, supra note I, at 60; Franck , The Security Council, sup ra note I, at 77·78 and 87-88 ; Skubi szew ski K.. The Internati onal Court, supra note I , point n. 8 of his co nclusion at 628. Among the negative view s see, for example, Schachter 0 ., Pleading in the case concerning Questions of Interpretation and Appli cation of the 1971 Montreal Convention arising from the Aerial Incident at Lockerb ie (Libyan Arab Jamahiriya v. United States ofAmerica), Preliminary Objections, IC] , Verbatim Record of the Publ ic Sitting of 15 Oct. 1997 , para s 4.84.16. According to Schacht er 's rather restrictive view, based , it seems, on the concept of the Coun cil as enjoying "s upreme - and unique - respon sibilit y" in the maintenan ce of peace (para. 4.8), the Court would be empowered neith er to " 'seco nd-guess' the Council in its judgment as to the threat and the measures taken in respon se" (para. 4.9) - but rather "to underline

The IC] Statute, Charter and Form s of Legali ty Review of SC Decisions

45

the restraint shown at times by the IC] itself with regard to the possibilit y of questioning the legality of the decisions of political bodies. The restrictive scholarly views, easily traceable by the reader in the above-cited literature, stem mainly from well-known broad concepti ons of the Securit y Council's "primary" competence in the maintenance of peace, and particularl y from the alleged non-justiciability of given kinds of disputes or matters.'? However, these

the discretionary auth ority" of the Co uncil (para. 4.10 ) - nor, it see ms, to proc eed to j udicial review. If I understand co rrec tly, the Court's pow er would be confin ed to the "interpretation of law rai sed by Council decision s". Thi s see ms to be confirmed by the cit ed scho lar's con siderat ions relating to Jud ge Fit zm auri ce's obse rvations in the Namibia case. While agreeing with the view (expressed by Jud ge Fitzm auri ce in the Namibia case) that an ICJ advi sory opinion " may have to determin e wheth er a Co unci l resolut ion is binding or recommend atory" , Sc hachter stated th at "the inherent powers of the Court to interpret texts ca nnot be stre tched to a power of review and annulme nt. This is a matter of such fund am ent al imp ort ance in the law of the Unit ed Nations - as in nation al co ns titutiona l law - that it ca nnot be obsc ured by referri ng vag ue ly to an inherent judicial power. It would sure ly astonish the legal co mm unities in man y co untries if thi s Court should anno unce that the j udicia l pow er inherentl y enco mpassed th e autho ri ty to override decisions of political organs w he re co ns titutiona l provision s do not pro vide for suc h review" (paras 4.15-4.16). Wh ile not stating it ex plici tly, the cited author see ms thu s to deny not only the possibility of direct ap pea l to the Court aga inst Sec urity Co uncil decision s but also the Court's power to make, for the purpose of adjudica ting a co ntentious case be tween the parties, a finding of a Securi ty Coun cil decision ' s illegality. Th e ICJ's power to review a C hapter V II decision of the Sec urity Coun cil see ms also den ied by Jud ge Sc hwe be l, with ex plicit reference to the hyp othesis of a co ntentious case , in his dissent ing opinio n in the Lockerbie case (Preliminary Objections, IC] Reports, 1998, p. 59 ff. at 80) . In his view the fact that "two States at vari ance in the interpretation of the C harter may submit a dispute to the Co urt, does not empower the Co urt to set aside or second-guess the determinations of the Security Council under Article 39 . Co ntentious cases may co me before the Co urt th at ca ll for it to pass upon question s of law raised by Coun cil decision s and for interpreting pert inent Council resolutions. But that power cannot be equated with an authority to review and co nfute the decision s of the Security Co unci l" (e mphasis added). The exclusion of "review and con futlation] " seems to impl y that the Co urt's authority sho uld not extend to pron oun cin g on legality, even inter partes. 10

Exa mples of the latter are the classes of disputes - partly overlapping - the ju sticiability of whic h is di scu ssed in the co mme ntaries prompted by the jurisdi ction and admissibility phase of the Nicaragua case (Damrosc h [ed .], The International Court, supra note I), namely: disputes "i nvo lving arm ed force" or "o ngoi ng arme d hostilities" ; - di sputes "invo lving the rig ht of individua l or co llec tive se lf-defense"; - di sputes " under consideration by the Secu rity Co unc ilor regional bodi es" . A more ge nera l re str iction would be that accordi ng to which politi cal disputes, or di sput es with maj or polit ical connotatio ns or implication s, wo uld be, de iure condito or condendo, non -ju sticiable by the Co urt . A recent very acc urate expose on the

46

Chap te r 3

restrictive views of the ICI's jurisdiction vis-a-vis the Security Council's competence are rightly and easily rejected by a number of scholars.' ! It follows that unless a limitation of the Court's competence derives from the instrument s on which it bases its jurisdicti on, nothing bars the Court either from adjudicating legal issues arising from, or connected with, a matter under Security Counci l action (or on its agenda), or to adjudicate on the legality of a Security Council resolution for the purpose of the decision of a legal question arising before it in a contentious procedure. If neverthele ss the restrictive theories of the ICI's "incidental" review are still alive, it is, in my view, because they are based also upon two sets of persistent sources of serious ambiguity. I refer to: (i), the prevailing misconception of the Security Council 's role in the area of dispute settlement as distinguished from that body's peace-preserving powers, and, (ii), widely shared overstatements of the predominan ce of the United Nations Charter over the ICI's Statute. Both sets of

distinction between political and legal disputes for the general purpose of j usticiability is that of Gordon E., Legal Disputes unde r Article 36(2) of the Statute , in Damrosc h (cd.), The International Court , sup ra note I, pp. 183 ff., esp. 202-222 . II

Schac hter 0 ., Disputes, sup ra note I, at 229 and 232- 233; Skubiszewski K., The International Court, supra note I, at 606-607 , 611 and 627-628. As demonstrated by Schachter, the Court is not barred , whenever it is competent on the basis of Article 36 of its Statute (namely, of acceptan ces under Article 36.2, or applicab le treaties), by the fact that the dispute involves the use of force (and even ongoi ng armed conflicts). There again, the only conceivable restrictions in this regard are those deriving from reservations exclud ing such disputes from the accepted 10 j urisdiction (cited Disputes etc., pp. 24 1-242). Acco rding to Skubiszewski, an excl usiveness of the Security Council's power vis-a-vis the Court may derive only "where the law, the decision of the parties or the unilateral declar ation under the Optional Clause confers exclusive competence on the Security Council ... or excl udes the Court 's ju risdiction". In such hypotheses, according to Skub iszewski, "the position is clear" (p. 62 1). Unacceptable, in my view, is Judge Alvarez's statement that "i f a case submitted to the Court should constitute a threat to world peace, the Security Council may seize itself of the case and thereby put an end to the Court 's jurisdiction " (Diss. Op., Anglo Iranian Oil Co. case , IC] Reports , 1952, p. 125 If. at 134). This daring statement is rightly commented upon by Rosenne (The Law and Pra ctice, supra note I), at p. 73: "S uch an automatic consequence can only occur where the title [of juri sdiction I contains an express reservation to the jurisdiction of the Court in the event of the dispute being submitted to the Securit y Council. If this is not so (and in so far as the Charter .. . may, directly or indirectly, be a title of j urisdiction [sicl, no such stipulation is found there), the Court itself wou ld have to take any action tending to dis-seize itself of the case, or to postpone the exercise of its j udicial functions. It could do so proprio motu or on the request of the parties".

The IC} Statute, Charter and Forms of Legality Review of SC Decisions

47

ambiguities call for some mises au point for the purpose of a more proper approach to the problem of the Court's role with regard to the legality of Security Council decisions .

B. Dispute-Handling by the ICJ and by the Security Council Very confusing, with regard to the relationship between the ICl and the Security Council- and the Court's power to pronounce on the legality of Council decisions - are the ambiguities inherent in the presentation of that relationship as a matter of distinction between the Court's and the Council's respective competences in the settlement of disputes. Prima facie , the prevalent scholarly opinion seems rightly to be that, although the Council has plenty of competence in the treatment of disputes (and, of course, situations) - whether political or legal - by way of good offices, mediation, conciliation and recommendation (of means or terms of settlement), it has no competence really to settle anything.' ? As everybody knows, only the Court - as well as an arbitral tribunal or the parties' agreement (with or without the aid of the Security Council's conciliatory effort) - settles the dispute with legally binding force (possibly with the Council's problematic support under Article 94.2 of the Charter). If this clear understanding of the Charter is frequently ignored or obfuscated, it is because of the blurring of the distinction between the Security Council's dispute-conciliation and peace-preservation functions: a blurring deriving from interrelated and partly overlapping doctrines arbitrarily attributing to the Council a binding dispute settlement power not envisaged in the Charter. One of those doctrines is the theory of the so-called "functional link" between Chapters VI and VII of the Charter. Under that theory the Council would be enabled to tum its recommendations under Chapter VI into binding decisions by a finding that non compliance therewith (by the parties or one of them) constitutes a threat to the peace, and the consequent adoption of measures enforcing compliance. Partly overlapping is the theory that any action carried out by the Council following a finding

12

Hans Kelsen expressed some wishful thinking with respect to the term "settle" in his learned analysis of the Durnbarton Oak s Proposals in comparison with the League of Nations Covenant , 'The Old and the New League: the Covenant and the Dumbarton Oaks Proposals' , AJIL (1945), pp. 62-63 .

48

Chapter 3

of a threat to, or breach of, the peace under Article 39, including any recommendations - under that same article - of means or terms of settlement of an underlying or supervening dispute, would be enforceable through Article 41 or Article 42 measures on the mere strength of the fact that an Article 39 finding has been made . In other words, once the Security Council had stepped into the area of Chapter VII , any recommendations it adopted relating to a dispute (or otherwise affecting States ' rights) would falI ipso fa cto under the enforcement mechanism of Chapter VII, despite the fact that such Council action realIy belongs - as indicated by the phrase "make recommendations" in Article 39 - to the area of that body 's merely conciliatory function. Both theories are at one time among the causes and the effects of the prevailing confusion between the Security Council's peace-enforcing and dispute-conciliation functions and the we II-known Kelsenian theory of the Council's "law-making". The compound result is indeed that , in the exerci se of its peaceenforcement function , the Security Council assumes, if it so decides, the role of a judge and/or a legislator. Hence the idea that, although the ICJ is empowered (under the conditions set forth in its Statute) to adjudicate even on legal issues related with international peace and security, and even in concomitance with Security Council action thereupon, once the latter body has made a decision under Article 24 and Chapter VII , that decision would become, so to speak, a piece oflaw, whether law of the Charter or international law tout court. As such , that decision - according to the positions recalIed in footnote 9 supra - could be passed upon by the Court from the viewpoint of its formal validity, or for the purpo se of its construction or implementation ; but not from the viewpoint of its legality under a law of which it would have become, ipso facto , an unassailable piece. Considering that the present writer has recently analysed the two theories in question, he spares the reader a repetition of his critique. 13 He confines himself to re-state that neither the "functional link" theory nor the theory of the enforceability (through Chapter VII measures) of conciliatory recommendations under Article 39, find a juridical basis in the Charter or in the "subsequent practice", "implied powers" "de facto amendment [sid]", or other doctrines. 14 It folIows that the Security Council 's power to affect States ' rights is not exempt from limits; and

13

On the Security Council 's "Law -making", supra note 1.

14

lbid., p. 620 ff. and 682-692 ff., respectively.

The ICJ Statute, Charter and Forms of Legality Review of SC Decisions

49

any States' rights affected beyond those limits are, in principle, enforceable under the Charter and/or general international law."

C. The Charter-ICJ Statute relationship I. The second set of ambiguities referred to in sub-section B. supra, is represented by interpretations which, in our opinion, over-emphasize the subordination of the ICJ Statute to the United Nations Charter. Of course, it is unquestionable that the authors of the Charter rejected the suggestion made in 1943 by an Inter-Allied Experts Committee that "les liens organiques existant entre la Cl'Jl et la SDN ne soient pas maintenus"." Indeed, the Court's connection with the new organization was not only maintained but reinforced, as noted by Rosenne, by "two new elements, the one to some extent [?] formal and the other of more substantial character".'? The formal element was Article 92's statement that the Court's Statute is an "integral part" of the Charter (reflecting the establishment of the ICJ "as a principal organ"). The "more substantial" element was "the fundamental coincidence of membership of the organization and membership of the international judicial community embodied in Article 93 of the Charter" . 18 I find it difficult to conclude, however, either that the ICJ "is in fact a new Court, operating in a political and legal environment entirely different from that of the Permanent Court",'? or that the Court "more closely geared into the mechanism of the U.N.O [than the Permanent Court into the League] must do its utmost to co-operate with the other organs with a view to attaining the aims and principles which have been set forth"." I find

15

16

17

18 19

20

Infra, sub-section D, para. 2. Dubisson M., La Cour internationale de Justice, Paris , 1984, p. 84. The relevant document is the Report of the Inter-Allied Committee on the Future of the Permanent Court of International Justice (10 Feb. 1944),39 AJIL (1945) , Off. Documents Section, p. I ff. at 4-6.

The Law and Practice, supra note I, vol. I, pp. 64-65. The same position is maintained by the author in his 1997 edition of the same work (The Law and Practice, supra note 2, 3rd ed ., 1997, vol. I, pp. 104-105) . Ibid., p. 65. Rosenne Sh., The Law and Practice, supra note I, vol. I, p. 65 (emphasis added) . Azevedo P., ICJ Reports, 1950, supra note I, p. 82, quoted by Rosenne Sh., The World Court , supra note I, pp. 37-38 (emphasis added) . On Rosenne's position see also infra note 22 and sub-section D, para . 2(e) .

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more appropriate Rosenne's conclusive remark of 1962 that "[w]ithin the framework of [the United Nations], this highly political organization, the Court, although an integral part of the Organization , stands in a special, and somewhat apart, position, as indeed appropriate for a Court of Justice"." It is also important to recall, more conclusively, that the cited author - the highest contemporary authority on the Court - does acknowledge (although amidst a discourse appearing to us at times not quite consistent) that: It is curious that the Charter, which carefully delimits the functions and competences of the principal organs of the United Nations, does not do so for the Court. Nowhere in the Charter is found any statement of what the Court mayor may not do. This is only partly remedied in the Statute .. .22

I do not find this state of affairs so curious. It simply reflects the fact that the Charter adopts, so to speak, the ICl with its Statute, rather than really establishing the Court or subjugating its Statute. This is proved particularly, in my view, by Articles 36 and 38 of the Statute; and it is further emphasized by the last cited author's statement that "the Charter left things [with regard to the Court] much as they were [at the time of the Leaguej'V' 2. The clear perception of the relationship between the United Nations Charter and the ICl Statute is not made any easier by the jeux de mots resorted to by some commentators to describe that relationship . Starting from the not uncommon imaginative notion that any treaty constitutes a community among the participating

21 22

23

Rosenne Sh., ibid., p. 40 (emphasis added). Rosenne Sh., The Law and Practice, supra note I, vol. I, p. 91 (emphasis added) . I find it intriguing, though , that the eminent author is not induced by such a remark to specify either his theory that the IC] is in substan ce - and not just pro forma and for administrative purposes - a "principal" organ and particularly the "principal judicial organ" of the United Nations (as ambiguously stated in Articles 7.1 and 92 of the Charter) , or his statement that the Court must "strive to give effect to the decisions of other principal organs, and not achieve results that would render them nugatory" (p. 70; emphasis added). I am also inclined to question the understatement that the Charter's "gap" is "only partly remedied in the Statute". The Statute , in my view, does all that needs to be done , especially by Articles 36 and 38, to maintain the IC] as the most authoritative, independent guardian - subject only to the choices made by the participating States with regard to the Court's jurisdiction - of the determination and application of international law - and of the interpretation of the United Nations Charter as a part thereof. Rosennc's 1997 edition of The Law and Practice , supra note I uses the term "inconsequential" (p. 112) instead of "nugatory". Ibid., vol. I, p. 92 (emphasis added) .

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States, Kelsen-' identifies a "partial community" constituted by the Charter in a narrower sense (namely without the IC] Statute), a "partial community" constituted by the IC] Statute (namely by the States participating therein ) and a "total community" composed of those two "partial communities" and embracing both the community of the States which are contracting parties to the Charter and the community of the States which are parties to the Statute ; and who, "[a]ccording to Article 93 .. . [,] may - but not necessarily need - be members of the United Nations. ? " Although in principle harmless, this figurative language becomes a source of ambiguity when one draws, from the concept of the "total community" - or from the concept of the United Nations Charter or United Nations Organization "in a wider sense of the term" - as it results from Article 93, the conclusion that this Article constitutes "a striking difference" between the Charter and the Covenant. " Indeed, the present writer fails to see in what sense the innovation is so striking as to make a substantive difference. The mere fact that participation in a treaty automatically brings about participation in another treaty is surely a formal peculiarity of the relationship between the Charter and the IC] Statute, distinguishing the Charter "system" from the League "sys tem" with regard to the Court . It is not, though. a difference of such substantive import as to make the IC] more substantively a part of the United Nations "sys tem" than the PCIJ was substantively a part of the

24

Kelsen H., The Law ofthe United Nations, supra note I, pp. 79-80.

25

Ibid., p. 80.

26

Ibid., p. 81. The "international judicial community" image is also present in both Rosenne's The Law and Practice, supra note I, vol. I, p. 65 and in his earlier 'T he World Court' , supra note I, p. 36. In the latter work the author writes that "[tjhe underlying assumption [of Article 7, 92 and 93 of the Charter was] that the world political organization, already possessed of exec utive, deliberati ve and administrative organs , would be incompl ete unless it possessed a fully integrated judi cial organ of its own". The same author also states that the cited Charter provisions "put an end to the anom alous situation which had existed in the structure of the League, where the intern ational judicia l comm unity was something distinct, at least in theory , from the general politi cal organiza tion of the international co mmunity. This was a radical innovation made by the founders of the United Nation s in 1945." (Ibid., p. 36, emphasis added .) I find by far more convincing Shabtai Rosenne's dicta quoted in the precedin g part of the previous paragraph . In the sense that the Court should not achieve result s that would render the decision s nug atory, Rosenne quotes also Jud ge Azevedo who, in the Peac e Treaties case (supra note I, p. 82), asserted that "[tlhe Co urt, which has been raised to the status of a principal organ and thus more closely gea red into the mechan ism of the U.N.a ., must do its utmost to co-operate with the other organs with a view to attaining the aims and prin ciples that have been set forth" (ICJ Rep orts, 1950, p. 82 quoted by Rosenne, The Law and Practice, supra note I, p. 70).

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League "system" for the purposes of the Court's contentious and advisory jurisdiction . Nor is there a substantive difference between the two "systems" for the purposes of the Court's possible role relating to the legality of Security Council (or other political bodies) decisions coming into question in the course of its proceedings. That the Statute remains a distinct repository of functions and powers notwithstanding Article 92's statement that it is "an integral part" of the Charter, is implicitly acknowledged by Kelsen himself where he states that "[tjhe provision of Article 93, paragraph 1, that 'all members of the United Nations are ipso facto parties to the Statute .. .' is superfluous since this is the necessary consequence of the provision of Article 92 that the Statute 'forms an integral part of the present Charter' "." The authors of Article 93.1 were obviously not so sure that by declaring the Statute to be an "integral part of the Charter" a really functional umbilical cord between the two instruments was created. Indeed, the "integral part" provision means, per se, very little from the functional viewpoint. From that viewpoint, and despite the formal and administrative connections that the Charter and the Statute establish between the institutions they govern, the two instruments are, as we see it, juxtaposed rather than integrated. One finds here comfort in Rosenne where he notes that in the Corfu Channel case (merits) the IC] describes its task as being "to ensure respect for international law, of which it is the organ":28 an expression the origin of which is attributed by Rosenne to Hudson." I like to read that definition as implying that the Court is, really, an organ not just, or quite, of the United Nations or of the Charter. It is, simply, an organ of international law, or, more precisely, the international judicial organ created by the Statute's participat-

21 28

29

Kelsen, The Law ofthe United Nations , supra note I, p. 81. Rosenne, The law and practice , supra note 1, vol. I, p. 75, citing IC] Reports, 1949, p. 35 (emphasis added) . Ambiguities on the relationship between the Charter and the ICJ Statute are also manifest in the more recent literature . Gowlland-Debbas, The Relationship, SUPRA note 1, for example , while stating , at p. 643, that the ICJ "is not only the principal judicial organ of the United Nations under Article 92 of the Charter ; it is also an autonomous adjudicative body with the function , under Article 38 of its Statute, ofapplying international law to such disputes between states as are brought before it" (emphasis added), qualifies the first part of the above-reported (for us almost perfectly correct) statement ("is not only the principal judicial organ of the United Nations") by the note : "By contrast , the Permanent Court of International Justice, though closely related to the League of Nations was independent of it" (ibid.). The addition seems to imply - and inevitably conveys - the notion that the ICJ is not as independent from the United Nations as the PCB was from the League . Rosenne , The Law and Practice, supra note 1, vol. I, p. 65, note I.

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ing States for the adjudication of the disputes directl y or indirectly indicated in Article 36 of the Statute , on the basis of international law as defined in Article 38 of that same Statute. 3. Moving from generalities and figurative language to the relevant specificities, it would seem that notwithstanding the numerous points of view from which the Charter and the ICl Statute can rightly be seen to be interrelated, they are, in most essential respects, far from being really integrated. The K'J's structure and administration are, of course , conditioned and controlled, to an extent, by the Organization. Such is the case particularly of the election of the members of the Court (Articles 2-15 of the Statute) . The K'J's functions, on the other hand, are preponderantly governed by the Court Statute . Exceptions (covered by the Charter) are the fa culte of international organs to request advisory opinions (Article 96) and the United Nations possible role in ensuring compliance with a Court decision (Article 94.2). Indeed , it is in the Statute that one finds the core of the rules governing the Court ' s contentious juri sdiction (Articles 36 to 39 and Articles 41,53,59-60, etc.), the Court's advisory function as regards the presentation of requests and the participating States' fa cult e to take part in advisory proceedings (Articles 65-68), not to mention the most essential indication of the law applicable by the Court (Article 38). From the functional viewpoint the only Charter provisions relating to the Court 's role are the superfluous Article 94.1, merely re-iterating the provisions of Article 38.1 and 59 of the Statute relating to the binding force of the judgm ents, and the rather negative - but equally superfluous - Article 95, which stresses the possibility that United Nations member States submit their disputes to tribunal s other than the ICl. As regards particularl y the Charter provisions referring to the Court's dispute settlement role, they do not envisage the ICl as an organic component of the United Nations organization any more than they envisage as such anyone of the various kinds of bodies the involvement of which in dispute settlement is hypothetically considered in Article 33. The latter Article mentions "j udicial settlement" in abstracto (with an obvious referenc e to any tribunal as well as the ICl) just as it implicitly refers to arbitral tribunal s, conciliation, mediation or enquiry commissions, or regional dispute settlement bodies. As for Article 36.3, it does not involve the ICl more decisively than it could involve an isolated arbitral tribunal or an ad hoc panel of jurists.30

30

The provision of Article 96 of the Charter does not seem to affect any more the ICrs status for the purposes of its advisory co mpetence. Also that competence is basically governed by Articles 65-68 of the Co urt's Statute.

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D. Basis and Object of an "Incidental" ICJ Review I. It follows that the issue whether the ICJ is competent to pronounce itself, in the course of a contentious case before it, on the legality of a Security Counc il decision (including particularly a decision taken under Chapter VII) - and the right of either party in the case (as a participant in the ICJ Statute) to obtain from the Court, Ie cas echeant, such a pronouncement - is wrongly put by some commentators as a constitutional question. I submit that it is a constitutional question neither under the Charter as the constitution of the United Nations, nor, afortiori, under the Charter as an alleged constitution of the international community "integrating" customary international law or any part thereof. The issue in question is to be considered under the Court's Statute . For the purposes of jurisdiction the central provision is Article 36, to be applied in conjunction with the further instruments that Article refers to. For the purpose s of the merits, the central provision is Article 38, indicating the legal rules under which the matter is to be settled, such rules naturally including the United Nations Charter, but not just the Charter. 2(a). As regards the object of the legality review, the task to be performed by the Court may possibly involve the consideration of two kinds of issues. One kind of issue relates to the well-known question of the extent of the Security Council's discretion in determining the existence of anyone of the Article 39 conditions, and recommending or deciding provisional or enforcement measures under Articles 40-42 . No degree of such discretionary powers, however, should bar the Court from questioning the reasonableness/appropriateness of the exercise of either power in any case where it brought about legally questionable decisions ."

31

It is true of cours e (as Judge Schwebel reminds us) that at San Francisco it was resolved "to leave to the Council the entire decision, and also the entire responsibility for that decision, as to what constitutes a threat to the peace, a breach of the peace , or an act of aggression" (Diss. Op., Lockerbie case, Preliminary objections, supra note I , at 80, citing UNCIO, vol. II , p. 17). But apart from the fact that no such loose language was embodied in the Charter's relevant Article s (not even in Articles 24 and 25), no discretional power is exempt from the inherent limitat ion of respect for the law and for the inherent requirement of reasonableness. Judge Schwebel's negative view seems to confirm the position taken by that same Judge in his dissenting opinion in Nicaragua , ICJ Reports 1986, pp. 289-290, paras 58-60 . As regards the nature of the Security Council's determinations under Chapter VII, the present writer wonders to what extent is it correct to think what Judge Schwebel and Schachter seem to think (see Schwebel, Diss. Op. in Nicaragua [merit s], supra note I, para. 60, p. 290 ; Schachter, The Quasi-Judicial Role, supra note I, p. 962) about the "purely political posi-

The IC} Statute, Charter and Forms ofLegality Review of SC Decisions

55

The second kind of issue possibly to be considered by the Court would be whether the Security Council's enforcement decisions do not exceed the insurmountable functional limit that bars the Security Council, even when operating under Chapter VII, from overriding a State's rights other than those the jeopardy of which is (genuinely) instrumental to the enforcement of peace and security." That limit

tions" that governments would be entitled to take in the course of Security Council deliberations . I do not think one could share this idea if the political "purity" of the positions in question were to mean that no regard should be paid - as a matter of legal obligation - to any relevant provisions of the Charter or general international law: particularly, to such concepts as threat to the peace and peace enforcement measures. Pace some authorities, such concepts are legal concepts to be understood in the light of the Charter as a treaty in conformity with the rules of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. So, if the delegate of a Security Council member were to state, for example (in the course of a debate on existence of an Article 39 condition) that a threat to the peace is not "une chose" but anything that the Security Council (or himself) labels as a threat to the peace - as maintained, for instance, by Combacau (Le Chapitre VII de la Charte, supra note I) - the Council resolution taken with that delegate's decisive vote could in my view be challenged before the ICJ in the course of a contentious or advisory procedure. Which reminds me that one should reject the (generally accepted) notion that the Security Council need not motivate its decisions. 32

On the Security Council's "Law-making", supra note I, pp. 627-646, 694-700 and passim . The nature of the Council's power, and the particular, limited sense in which that power involves any law-making, are specified in para . 47, pp . 697-699. In the view of Judge Sir Robert Jennings: "the Court is, according to the Charter, to act always as the 'principal judicial organ of the United Nations' . In short, the Court must administer and apply the law. This entails taking account of the applicable United Nations law; and that includes taking fully into account Articles 24, 25, 28, 39, 48 and 103 of the United Nations Charter. This must involve declaring, interpreting, applying and protecting the law of the United Nations as laid down in no uncertain terms by the Charter. When, therefore, [.. .1 the Security Council, exercising the discretionary competence given to it by Article 39 of the Charter, has decided that there exists a ' threat to the peace', it is not for the principal judicial organ ofthe United Nations to question that decision, much less to substitute a decision of its own, but to state the plain meaning and intention of article 39, and to protect the Security Council's exercise of that body's power and duty conferred upon it by the law" (Diss . Op . in Lockerbie , Preliminary Objections, supra note I, p. 110 [emphasis added]). The present writer fully agrees that the Court must "protect" the Charter and the Security Council in the exercise of its functions under the Charter, that function being to "administer and apply the law". In so doing, however, the Court must also protect the rights of States: particularly those rights of States which (at least in the view of the present writer) the Security Council is not empowered to override under any of the provisions recalled by our eminent Confrere (On the Security Council's "Law making", supra note I, esp . paras 11-12 and 46-47). It follows that the Court may well find something juridically wrong also in decisions taken by the Council under Chapter

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should be upheld by the ICJ whatever may be the extent to which the Court may find reason to question the Council's above-mentioned determinations and decisions (under Articles 39-42).33 2(b). The "incidental" review under consideration finds an obstacle neither in Article 103, nor in the provisions of the Charter vesting the Security Council with its "primary" responsibility (Article 24) and binding United Nations members States to abide by the Council's decisions (Article 25). Of course, the ICJ will be bound, in the exercise of its judicial function, to take due account of such articles together

VII or any other relevant provisions of the Charter. See also , of the cited Judge, The International Court of Justice, supra note I, at 52 . 33

I need not re-iterate here my recent comments on the ICJ's 1992 and 1998 pronouncements in the Lockerbie Case (On the Security Council's "Law-making", supra note I, pp. 702-712, paras 51-54) . 1only confirm the views there expressed with regard to the Court's and a number of Judges' positions relating either to the Security Council's finding of a threat to the peace or, more importantly, to the questionable legality of resolution 748 . It is hardly necessary to add that the Scottish Court's recent judgment (finding guilt in one of the two accused Libyan nationals) does not attenuate in the least the radical illegality of Security Council resolution 748 . My views on the case prove to be close to those expressed by Alfred Rubin, in 1993, in Libya, Lockerbie and the Low, supra note I, a remarkable piece of scholarship only recently made available to us . I refer - inter alia - to his criticism of the questionable threat to the peace finding ("hard to see the relationship between the old atrocity and a current threat", at II) and of the weak "bases of the Council's drastic action [by res . 748]" (at 10), as well as, most especially, to his questioning of the Security Council's "complete competence to determine the reach of its own authority" (at 12). Between the Distinguished Professor of the Fletcher School and myself there might be only some differences in the degree to which we respectively see limits to the Security Council's power to settle disputes or override States' rights, when acting under Chapter VII of the Charter. In view of the few thoughts developed in the present writing, a small addition should be made to my above-mentioned comments on the case in question. My dissatisfaction stems not only from the lack of an early appreciation by the Court (since 1992) of what I rightly or wrongly consider to be an insurmountable limit to the Council's powers under Chapter VII, but also from the tendency of almost all concerned with the case to view the Charter as a selfcontained and self-sufficient system. That attitude leads inevitably to disregard fundamental principles of general international law in my view essential (see infra section IV, para . 3) for a proper interpretation and implementation of that instrument. The latter tendency seems to be shared even by Judges Lachs and Weeramantry both otherwise concerned with the preservation of the Court's role as guardian of the Charter and international law (see Lachs M., Sep. Op . in Lockerbie , supra note I , p. 26; and Weeramantry C. J., Diss . Op., ibid. , p. 56) .

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with any other relevant Charter provisions. The latter will include in particular - as already noted - the preambular and introductory Articles indicating the purposes and principles of the United Nations. This duty of the Court, however - which is a consequence of the fact that the Charter is implicitly but surely covered by Article 38.I .a of the Court's Statute - derives not from the Charter but from the Statute as a distinct (if not the only real) source of the ICJ's judicial power. In other words, the Court would operate, in carrying out an "incidental" review of a Security Council questionable decision, as an organ of international law - and, as such , also as an organ of the United Nations - but, I repeat, not just of the United Nations. 2(c). Be it as it may of such formal definitions, I am able to share neither the above-mentioned dictum that the Court should "strive to give effect to the decisions of other principal organs, and not achieve results that would render them nugatory't" nor the notion that any ICJ review-role should be deployed only in "extreme cases", as advocated by some authors." The Court should not hesitate to perform its judicial function under the Statute whenever a dispute is before it and a party has a procedurally valid reason to demand that the Court set aside as illegal an arbitrary or ultra vires Security Council decision. It is for the Council- and that should be the main lesson of the Lockerbie case - to refrain from overriding States' rights beyond the limits set by the Charter. I am even less able to share the view that "[a]s an organ of the United Nations, the International Court of Justice clearly [sid] constitutes part a/the mechanism for the maintenance of peace and international security as was conceived at San Francisco in 1945".36 This is an absolutely arbitrary notion which is justified neither under Article 92 of the Charter, nor by travaux preparatoires, nor by the ICJ's "mindful[ness] of the purposes and principles of the [.. .] Charter and of its own responsibilities in the maintenance of peace and security under the Charter and [its own] Statute"."? One thing - for a lawyer- is to say that the Court is mindful of the

34

35

36

37

Rosenne Sh., The Law and Practice, supra note I, vol. I, p. 70. Schwebel S. M. (Relations Between the International Court and the United Nations , supra note I, p. 440) envisages such interpretative role of the Court as being finalized to an enhancement of the Charter's "reach and effectiveness" and of the "vitality of the Charter as a whole" . Franck T. M., The Security Council, supra note I, p. 110 and Gowlland-Debbas, The Relationship , supra note I, p. 677, text and note 185. Pellet A., The International Court ofJustice and the Political Organs ofthe United Nations, supra note I, at p. 116 (emphasis added). Paragraph 17 of the Order of 2 June 1999 in the Case Concerning Legality of Use of Force (Yugoslavia v. United States ofAmerica), Request for the indication of Provisional Measures.

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purposes and principles of the Chart er and that it also has respon sibilities (obviously in the exercise of its judicial fun ction under internati onal law, Charter included ) in the maintenance of peace. Another thing altogether is to say that the Court "co nstitutes part of the mechan ism" of collective security. The arbitrariness of the latter notion is further stressed by the same authors' assertion that: the drafters of the Charter had a coherent global design: all and every thing is subordinate to the maintenance of peace. As an organ of the United Nations the Court is an element of this global design. If it does not contribute to this general purpose, the Charter is rather suspicious both of international law and the Court. This is a bitter lesson [sic!] [but from whom?] which should instill modesty [sic!] amongst lawyers! 38 Presenting, as they do, the IC] as a kind of subsidiary organ of the Security Council, integrated into the mechanism of collective security, such propos comment themselves. 2(d). Bound as it is under Article 38.1 of its Statute to apply (also) the Charter, the Court must of course take all due account - together, though, with the other purposes and principle s emphasized in the preamble and Article s 1-2 of the latter - of both the purpos e of the maintenance of peace and security and the Security Council's primary (although not exclusive) responsibility in that regard. None of the relevant provisions, however, vests the Council with unlimited discretionary powers, or competence de la competence. On the contrary, there are, as stressed in subsection B supra, legal limits to the Council' s power. As regards the Court, far from being placed in the position of an obsequiou s or weakly acquie scent subordinate of the Security Council, it is - under a Statute fully acknowledged by the Charter - a judi cial organ empowered, and duty-bound, to find in the relevant rules, in the presence of certain conditions, firm legal ground to decide that a Security Council

ICJ 1999 (2 June 1999, General List No. 114 on but making available only a few hundred lightly armed troops to defend it, sends the Organization on a fool's errand.!" While article 98 of the Charter requires the Secretary-General to "perform such ... functions as are entrusted to him by [the political] organs", it does not require him to remain silent when the means for a function are grossly inadequate, neither does it require that he remain in office to lead a hopeless charge of the light brigade. The second problematic institutional limitation is far more obdurate . It is presented in stark form by the Kosovo crisis. If the veto is used, or threatened, to prevent collective military action to stop an egregious, flagrant impending abuse, such as genocide, should states abandon the stymied United Nations system in favor of a robust use of force by a regional organization, a self-authorized coalition of the willing or by individual states acting on their own and, thus, in violation of the letter of the Charter?1 26 To approach the theoretical and institutional heart of this dilemma, three assumptions must be made ex hypothesi: I. that a government has decided to engage in egregious, flagrantly unlawful abuses such as genocide against its own population; 2. that a permanent member has vetoed or will veto any effort by the Security Council to deploy, or authorize deployment of, sufficient force to prevent or end the abusive practice;

124 125

126

SIRES/824, 6 May 1993, para . 3. For an excellent assessment of this ill-fated mission, see Report of the Secretary -General pursuant to General Assembly resolution 53/54 , the Fall of Srebrenica, 54th Sess ., Agenda item 42, A/54/549, 15 Nov. 1999. For a statement of the illegality of NATO's action in Kosovo , see Bruno Simma, 'NATO, the UN and the Use of Force: Legal Aspects' , 10 European Journal of International Law I, 5 (1999) .

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3. that a state or group of states has the military means and resolve to prevent or stop the egregious abuse and will do so with proportionate restraint to minimize loss of life. On making these assumptions, two valid questions may be debated: 1. Should a willing state or states use force to prevent or stop the egregious abuse even if, to do so, means violating article 2 (4) and related strictures of the Charter? 2. If the answer is in the affirmative, does that argue for replacing the bypassed Charter's system with a new, more decentralized and permissive approach to the use of force by states and regional organizations to protect global peace and security? The answer to the first of these fundamental questions must be sought not in law but in morality. Even in more highly developed national legal systems, the strict letter of the law is not infrequently challenged in specific exigencies by the moral contextual imperative to violate it. The law may not actually permit such violation, but, if the moral case is strong enough, it may tolerate it. In the landmark British case, Regina v. Dudley and Stephens 127 the legal system had to deal with an extraordinarily illegal act - cannibalism - committed for the sole purpose of saving the lives of survivors in a lifeboat. Clemency was exercised by the Crown . The use of NATO force in Kosovo may be such an instance of the law accommodating a stronger imperative of morality. We have seen that the political organs of the United Nations have shown considerable acumen in directing their attention to some violations while overlooking, or only mildly chastising, others. Morality - decentralized morality - however, is not a basis upon which a new legal regime can be built. 128 The majesty of law derives from its consistent application by institutions legitimated either through political validation or disinterested impartiality. When such consistent and legitimate application of the law leads to intolerably immoral results - the genocidal murder of half a million Tutsis in Rwanda, for example - the law, to preserve itself, allows some accommodation. This accommodation is effected through the law 's residual power to pardon the

127

128

Cf Regina v. Dudley and Stephens, 15 Cox C.C. 624, 14 Q.B. 273 (1884) is but one of several cases in which cannibalism of one to save many is found unlawful but, ultimately, pardonable or in mitigation of the law's penalty. Such an entirely new regime is called for in Michael J. Glennon, 'The New Interventionism' , 78 ForeignAffairs 2 (No.3, May/June 1999).

In Extremis

347

offence or to mitigate penalties. Rightly, however, the law's ability to redress its own vaunted rigidity is usually left flexibly uncodified. The United Nations Charter is a legal system that embodies deliberate rigidities in its prohibition against the use of force by states absent either of an armed attack (article 51) or of Security Council authorization (articles 39 and 42). Those who advocate replacing this regime with one of autonomous regional actors are proposing something radical but not new. At the San Francisco Conference, strong efforts were made to give regional organizations enforcement powers parallel to those of the Council. The Inter-American system had just concluded its Act of Chapultepec.P? which foreshadowed the Rio Pact of Mutual Security.P? Some Latin American states argued that this system of regional security offered them greater protection than would the Charter.'!' The fledgling Pan-Arab system offered some support, and even Prime Minister Winston Churchill, in 1943, had proposed to President Franklin D. Roosevelt that the new global organization might be built on "three regional pillars" .132 France, at San Francisco, complained that "it is incompatible with the conditions of security of some States, which demand immediate action, to defer, until such time as the Council has reached a decision , emergency measures for which provision has been made .. .by treatie s of assistance't.!" Support for this view came also from Czechoslovakia and Turkey.134 Initially, the United States seemed to agree that regional organizations should at least share responsibility with the world organization in maintenance of security and peace. 135 Nevertheless , in the end, it was the United States which rallied a majority against such

129

130

131

132

Act of Chapultepe c adopted 3 March 1945 by the Inter-American Conference on War and Peace. Inter-American Treaty of Reciprocal Assistance (Rio Treaty) of2 Sept. 1947,62 Stat. 1681, T.1.A.S. 1838,21 United Nations T.S. 77 (1947). Entered into force 3 December 1948. Colombia argued strongly for the right of regional groupings to use force. Minutes of the Thirty-Fifth Meeting of the United States Delegation, Held at San Francisco, 10 May 1945. I Foreign Relations of the United States, 1945, 657 at 659-70. Memorandum by Leo Pasvolsky, Special Assistant to the Secretary of State, 15 March 1944. I Foreign Relations of the United States, 1944, 627. See also Winston S. Churchill, The Second World War: The Hinge of Fate 711-12, 802-07 (1950) .

133

12 UNCIO, Commission III, Committee 4, Doc. 269, 111/4/5,14 May 1945,765 at 777.

134

Ibid. at 773, 78 1.

135

United States Tentative Proposals for a General International Organization , 18 July 1944, I Foreign Relation s of the United States, 1944,653 at 653-54 .

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regional autonomy. It conceded that it "is of course .. . clear that all regions are fully entitled to use all peaceful means of settling disputes without the permission of the Security Council"!" but that the regional organization should not be permitted to use force without the Council's prior authorization. Several Latin American states also defected to this position , Bolivia, in particular, arguing "that in no case should regional organizations or agencies be able to adopt sanctions without the express authority of the Security Council".'> At the end, Chapter VIII, article 53, emerged from San Francisco with the unambiguous proviso that "no enforcement action shall be taken under any regional arrangement or by regional agencies without the authorization of the Security Council". The reason for this becomes readily apparent upon further consideration of the three assumptions made ex hypothesi to reach the heart of the "second institutional limitation" of which the Charter system is accused: that it cannot react quickly and decisively in a Kosovo-type situation. These three assumptions are precisely that: assumptions. In actual instances, however, what process can be invoked to determine whether they are applicable? Has a government actually committed or threatened genocide or other egregious act against its own population? Is a permanent member of the Security Council actually willing to risk the outrage of the world were it to veto collective measures under Chapter Vll? Are there regional organizations or individual states ready to bear the human and fiscal costs of saving the endangered population, and able to do so without using disproportionate force? In few situations are the answers to these questions likely to be self-evident. Yet, without persuasive answers , the question - whether contextual morality, in a given circumstance, may replace inflexible law as the acceptable standard for action simply does not arise, nor can answers simply be assumed by any legitimate legal system. In the aforementioned Dudley and Stephens case, British Chief Justice Lord Coleridge conceded that "if the men had not fed upon the body of the boy they would probably not have survived" and that "the boy being in a much weaker condition was likely to have died before them" . 138 On this basis, an exceptional clemency might be appropriate. "It is not suggested," Coleridge said, "that in this

136

137

138

Minutes of the Thirty-Fifth Meeting of the United State s Delegation, sup ra note 131, at 660 (Harold Stassen). ibid.

15 Cox CC 624, 14 Q.B. 273 at 279 (1884). See also U.S. v. Holmes, I Wall Jr. 1,26 Fed. Cas. 360 (1842) .

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particular case the deeds were "devilish", but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime" . 139 It is precisely to prevent it from becoming the legal cloak for unbridled aggression that the Charter was written with - and perforce must retain - an absolute prohibition on the use of force except in self-defen ce or on behalf of action s authorized by the Council. This awkward rigidit y becomes even more important than in Lord Coleridge's case, because the international legal system lacks what Britain has - a system for determining speedily and credibly the factual accuracy of the exceptional circumstances warranting recourse to legally prohibited but morally incumbent acts, circum stances which, ex hypothesi, we simply assumed but which, in most international situations, are in dispute . That could be remedi ed, but those who call for reforming the flawed United Nations system by dismantling it might more profitably focus on ways to create processes by which to test credibly what is too often merely claimed or assumed. If it were clearl y demon strable by reference to an objective process of review that genocide were imminent, would a permanent member really dare veto a proposal to take proportionate steps, including authorizing use of force, to prevent it? Would many states not be more willing to contribute conting ents to a force engaged in what was demonstrably a humanitarian rescue? The focus of reformers should be on methods and processes for credibly demonstrating the demonstrable. Pending such creative reform, the Charter system, as usual, has sought to adapt pragmatically, case-by-case. In the instance of Kosovo, although the Council did not authorize NATO's air-war against Yugoslavia, it did invoke Chapter VII, require concrete steps by the civil war parties to end the conflict, and threaten "additional measures to maintain or restore peace and stability in the region". "? By a majority of 12 to 3, it rejected a proposal to condemn the NATO action!" and, without opposition , it adopted the resolution that ended the fighting and substituted a United Nations civil administration alongside the NATO military presence in Kosovo, to the exclusion of Yugoslav forces.!" Acting under Chapter VII, the Council imposed on Yugoslavia a mandatory obligation of "full cooperation" in

139

15 Cox C.c. 624, 14 Q.B. 273 at 288 (1884).

14()

SIRESII l99 (1998) of 23 Sept. 1998, preamble and para. 16.

141

Draft resolution SII 999/328, rejected at S.c. 3989th Mtg. of26 March 1999.

142

SIRES/ 1244 of 10 June 1999.

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the "rapid implementation" of the cease-fire that had been forced on it by bombs and diplornacy.l" NATO's action against Yugoslavia was not the first regional enforcement action taken without prior Council authorization. The Organization of American states, already in 1960, decided on diplomati c sanctions against the Trijillo dictatorship in the Dominican Republic that provoked the ire of the Soviet bloc, which argued that these were "enforcement measures" not permitted under article 53 of the Charter without prior Security Council authori zation.!" The Council , however, took no action . Neither did it do so after the Economic Community of West African States (ECOWAS) decided in the early 1990's to despatch a military force (the Economic Community Monitoring Group or ECOMOG) to Liberia in an effort to end a brutal civil war.145The Security Council did not become involved until invited by the West African states in 1992 to institute a blockade and send electoral monitors.!" Only then did the Council pass a resolution that "[c]ommends ECOWAS for its efforts to restore peace , security and stability in Liberia, [c]ondemn s the continuing armed attack s against the peace-keeping forces of ECOWAS' and imposes a mandatory embargo under Chapter VII on "all deliverie s of weapons and military equipment to Liberia".147The following year, the Council approved the despatch of a United Nations Mission in Liberia (UNOMIL) ,148 thereby retroactively endorsing de facto the unauthorized regional military intervention. Taking into account these instances of United Nations cooperation with regional organizations engaged in peace-enforcement it could be surmised that the Charter is being interpreted in practice as accommodating the use of regional force in certain circum stances by an acknowledgment in lieu of specific prior authorization, such as "commending" the regional initiative ex post/acto and cooperating with it to redress a particularly egregiou s situation. It remain s to be seen whether subsequent United Nation s practice will con sensuall y confirm or repudiate such an adaption of the text of article 53, or, indeed , whether such a "living tree" approach

143

Ibid., preamble and para . 2.

144

Cf. Ambassador Bohdan Lewandowski, SCaR, 894th Mtg., 9 Sept. 1960, p. 1 I.

145

UN Yearbook, vol. 46, 1992, at 191-93.

146

Letter dated 28 October 1992 from the Permanent Representative of Benin to the United Nations addressed to the President of the Securit y Council, S124735 of 29 Oct. 1992.

147

SlRESn88 of 19 Nov. 1992.

148

SlRES/856 of 10 Aug. 1993.

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to regional action can help to resolve the theoretical "Kosovo Dilemma" in the course of managing future conflicts between Charter text and moral imperatives. To admit that it may as yet be too early to come to a conclusion regarding that particular adaptive development is not at all to concede , however, that, in future, as in the past, the United Nations "living tree" will not continue to grow and adapt.

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INHERENT POWERS OF INTERNATIONAL COURTS AND TRillUNALS Paola Gaeta

It is a great privilege for me to contribute to the Essays in honour of Professor Antonio Cassese. I had the good fortune to work under his direction at the International Criminal Tribunal for the Former Yugoslavia, of which he is a former President , during a crucial time for the Tribunal. In participating in the research work and collegiate discussions preparatory to the drafting of some landmark judgments of the Appeals Chamber, I gained tremendous benefit from the intellectually stimulating and vivaciou s atmosphere he had brought about within the Appeals Chamber over which he presided at the time. One had a sense of living through unique days, of partaking of a momentou s intellectual undertak ing.

I. INTRODUCTION

The notion that international courts and tribunals may exercise powers not expressly provided for in the international instruments regulating their jurisdiction, finds wide support among scholars. Such residual powers are often referred to as inherent, as opposed to powers which are expressly granted by those instruments and are usually regulated in detail by the rules of procedure.I However, much

I

With regard to the inherent character of the power to establish their main jurisdiction see Ralston, The law and procedure of international tribunals, (Stanford , 1926), pp. 47-48 ; Carlston , The process of international arbitration, (New York, 1946), p. 76. On the inherent

L.C. Vohrah et al. (eds.), Man's Inhumanity to Man, 353-372 ©2003 Kluwer Law International. Printed in the Netherlands .

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uncertainty exists about both the exact meaning of the term "inherent" and the legal source of this class of powers. Some authors describe as inherent only those judicial powers which - regardless of whether they are provided for in constitutive instruments - are envisaged specifically by general principles of international law or by general principle s of law common to major national legal systems.' Others take a different stand and argue that are inherent those powers that can be derived by necessary implication from the constitutive instruments of an international judicial organ in order to enable it to fulfil its mandate. In other words, these authors apply to the instruments establishing international courts and tribunals the well known doctrine of "implied powers", and use the term "inherent powers" as being synonymous with "implied powers" . Finally, according to a third school of thought, the notion of inherent powers covers all those powers deriving exclusively from

powers of international courts and tribunals see, more generally, Coussirat-Coustere, Eisemann, 'La procedure devant les ju ridictions internationales permanentes", in La juridiction internationale permanente, (Paris, 1986), p. 103 ff., in particular at 120-123; G. Fitzmaurice, The law and procedure ofthe International Court ofJustice, Vol. II, (Cambridge) , p. 533 and pp. 770-771; E. Lauterpacht, "P artial judgments" and the inherent jurisdiction of the International Court of Justice', in Lowe, M. Fitzmaurice (eds.), Fifty years of the International Court ofJustice, Essays in honour ofSir Robert Jennings, (Cambridge, 1996), p. 465 ff., at 476-483 ; Rosenne , The law and practice of the International Court, 1920-1996 , Vol. II, (The Hague, Boston, London, 1997), pp. 600-601. With regard to the inherent powers of the European Court of Justice see Amull, 'Does the Court have inherent jurisdiction?' , in Common Market Law Review , 1990, p. 683 ff., at 700-707 . For the inherent powers of international criminal tribunals, see Saaroshi, 'The Powers of the United Nations International Criminal Tribunals' , Max Planck Yearbook of United Nations Law, 1998, p. 141 ff .; Buteau, Oosthuizen, 'When the Statute and Rules are silent: the inherent powers of the Tribunal' , in May et al. (eds.), Essays on ICIT procedure and evidence in honour of Gabrielle Kirk Mac Donald, (The Hague, Boston , London , 2001), p. 65 ff.; Bohlander, 'International Criminal Tribunals and their power to punish contempt and false testimony ' , in Criminal Law Forum (forthcoming). 2

See Rosenne, The law and practice ofthe International Court ofJustice, 1920-1996 , Vol. II, (The HaguelBoston/London, 1997), pp. 600-60 I, where the author - by making reference to the inherent jurisdiction of the International Court of Justice - states: "Where the inherent jurisdiction relates to matters not specifically regulated in the Statute or in the Rules of the Court , it may be inferred to have been assumed by the Court, in its designated capacity of judicial organ, applying to a concrete problem general principles of international procedural law not specifically mentioned in the Statute or Rules. Conversely, where the provision is made in the Statute, the Court will tend to regard such provision as the enunciation in statutory form of a general principle" .

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the jud icial nature of the body exe rcising such powers and which are necessary for regulating variou s matters connected with the adm inistration of justice.' Clearl y, each notion identi fies a different legal basis for the exercise of this class of powers. Accordin g to the first definition, every power qualified as inherent must be provided for by a general source of international law (namely, a general principle of international law or a principl e common to national legal systems). This general source then confer s the power in question on all intern ational tribunals . In contrast, if the notion of inherent power is equated with that of implied power, the legal basis for powers not specifically envisaged in the constitutive instrument of an international judicial body lies in the "unexpressed" will of the entities setting up such a body. Therefore the source resides ultimately in the constitutive instrument itself, albeit interpreted in a somewhat liberal manner," Finally, if one follows the third school of thought, ascertaining the legal basis for it is somewhat unclear, unless it is argued that a customary rule of international law allows tribunals to exerci se all those powers which prove necessary both for ensuring a sound administration of ju stice and for safeguarding their jud icial character.

3

4

See G. Fitzmaurice, The law and procedure, supra note I, at 770-771 , and Arnull, ' Does the Court of Justice have Inherent Jurisdiction ?' , supra note I, at 700- 707. See, for instance, E. Lauterpacht, 'Partial judgement s', supra note I, p. 477, where the author, in discu ssing the stand taken by the Intern ational Court of Justice with regard to issuance of partial judgments, arg ues as follows: "[T]he Court does not appear publicly to have discussed the source, charac ter or limit s of the exe rcise of [its] inherent powers. [Their] exis tence [seem s] simply to have been assumed. [T]h ey must, however, have some source. In the abse nce of any other that is identi fiable, this mu st pre sum ably lie in the powers of the Court necessarily to be implied from the grant of power to frame rules given in Article 30 of the Statute or, possibly, eve n more widely, from the overall power of the Court to operate, as establis hed generally by the Statute. In this respect, the imp lication of powe rs for the International Co urt is comparable in legal ju stification and method to the implication of powers for any other internationa l organ operating on the basis of a constitutive instru ment". See also Carri llo-Salcedo, 'The Inherent Powers of the Internati onal Crimin al Tribun al for the Former Yugos lavia to issue "subpoena duces tecum" to a sovereign State' , in Melanges en l'h onneur de Nicolas Valticos, Droit et Justice, (Paris, 1999) , pp. 269 ff., acco rdi ng to whom : " [T]he Tribun al [for the Form er Yugoslavia] mu st be deem ed under international law to have those powers whi ch, though not express ly provided in the Statute, are conferred upon it by necessary implication as being essential to the performance ofits duties" (at 274, emphasis in the origi nal). In the same vein, Ciampi , 'Sull 'opplicazione della teoria dei poteri impliciti da parte del Tribunale penale interna ziona le per la ex-Iugos lavia" , in Rivista di dir itto internazionale, ( 1998), pp . 130 ff.

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This paper will attempt to shed some light on this controversial matter, with a view to defining the source and limits of inherent powers, starting with a perusal of the relevant case law.

II. THE NOTION OF INHERENT POWERS IN INTERNATIONAL CASE LAW

International courts and tribunal s have often referred to inherent powers to justify the exercise of judicial functions not expressly conferred upon them by their constitutive instruments. Moreover, in some instances they have termed as inherent those powers which were expressly envisaged in the conventional instruments regulating their jurisdiction. Thus, international courts (as well as a few judges expressing individual opinion s) found that a certain range of powers possessed an inherent nature. In particular these included the power to establish their main jurisdiction (the so-called competence de La competenceyr the power to interpret" or review their own judgments,' to correct material errors in their judgments,8 to make

5

See the decision of 28 November 1923 of the Arbitral Tribunal established by the United Kingdom and the United States with regar d to the Rio Grande Irrigation and Land Compan y ltd. case, in Reports ofinternati onal arbitra l awards , Vol. VI, p. 130 ff ., at 135-136. See also the individual opinion of Judge Koroma in the 10 judgment of 4 December 1998 on Fisheriesjurisdiction. and of Judge Nelson in the ITLOS jud gment of 1 July 1999 in M/V Saiga (No.2). In the case law of the Inter-American Court of Human Right s (lACHR ), see for instance the decisions handed down on the following cases: 1vcher Bronstein (judgment of 24 Sept. 1999, para. 32); Tribunal cons titucional (judgment of 24 Sept. 1999, para. 3 1). See the decision of the ECHR of22 July 1972, in Ringeisen v. Austria (Interpretation ofthe judgement of22 June 1972), where the ECHR underlines that the power to interpret its own judgments (establi shed in its self-made rules of procedure) has an inherent nature and that the relevant rule of procedur e. in providing for such a power. "is limited to recogni sing this inherent jurisdiction and to settling the way in which it is to be exercised" . In the same vein. see also the European Court's decision of 24 June in Allen et de Ribemont v. France (Interpretation of the j udgement of 1 February 1995) . See the individual opinion of Judge Cancado Trindade with respect to the IACHR order of 13 September 1997 on Request f or review ofjudgement of 29 January 1997, Genie Lacayo. in Annual Report of the Inter-American Court of Human Rights. 1997. p. 177 ff.• at 180. See. for instance. the decision of 14 February 1978 handed down by the Arbitral Tribunal instituted by France and the United Kingdom in the case of Delimitation of the continental shelf: interpretation ofthe decision of30 June 1977, in International Law Reports. Vol. 54. p.

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judicial findings necessary for the exercise of their primary jurisdiction," to issue interim measures, IO to issue orders for the cessation or discontinuance of a wrongful act or omission," to evaluate the credibility of a witness,'> to sanction disor-

139 ff., at 174 (para . 36) , and Decision No. 23 (supplementary decisions and clarifications) of I November 1993 by the Arbitral Tribunal established by the United States and the United Kingdom with regard to Heathrow Airport user charges, in International Law Reports, Vol. 102, p. 564 ff., at 2.25 . 9

10

II

12

In the case law of the ICTY see the Appeals Chamber decision, in Prosecutor v. Tihomir Blaskic, Case No . IT-95-14-ARI08 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,29 Oct. 1997 (hereafter Blasku: Subpoena), at para . 33, where the Appeals Chamber states that the ICTY has the inherent power "to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction". See the order issued on 28 October 1957, in Veerman, by the Arbitral Commission on property, rights and interests in Germany, where the Arbitral Commission stated as follows : "We have no doubt of our inherent power to issue such orders as may be necessary to conserve the respective rights of the parties, including their freedom from interference in the prosecution of their claims before us, and thereby to assure that this tribunal's jurisdiction and authority are made fully effective." (Decisions of the Arbitral Commission on property, rights and interests in Germany , Vol. I, Koblenz, 1958, p. 119 ff., at 120.) In the same vein the case law of the Iran-US Claims Tribunal quoted infra note 20. See also the dissenting opinion of Judge Ajibola with respect to the Orders handed down on 14 April 1992 by the ICJ in Lockerbie (IC] Reports /992, p. 78 ff. and p. 183 IT., at p. 88 and p. 92, at p. 193 and p. 197, respectively). Decision of 30 April 1990 of the France-New Zealand Arbitration Tribunal, Rainbow Warrior, in Reports ofinternational arbitral awards, Vol. XX, p. 500 ff. , at 573, para . 114, where the Tribunal held that: ''The authority to issue an order for the cessation or discontinuance of a wrongful act or omission results from the inherent power of a competent tribunal which is confronted with the continuous breach of an international obligation which is in force and continues to be in force." See the Appeals Chamber judgment in Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgement , 15 July 1999, para . 322 , where the Appeals Chamber argues that to ascertain the credibility of a testimony witness, a Trial Chamber must be able to evaluate the testimony in the light of an existent prior statement, and that "this power is inherent in the jurisdiction of any criminal court, national or international". According to the "Appeals Chamber, "this is one of those powers .. . which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice".

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derly conduct in proceedings 13 or to pronounce and act upon contempt of the tribunal,!' to impose costs in the case of frivolous, vexatious or repeated complaints," to regulate their own procedure," to ascertain motu proprio whether the conduct of the State could be held in breach of certain obligations different from those alleged in the original complaint," and so on. The possible source of these powers has not always been spelt out. Courts and tribunals have often referred to them without trying to identify their legal basis or explaining why a certain power was characterised as inherent even though the exercise of such a power was clearly envisaged in their constitutive instruments .

13

14

15

16

17

In Put: v. Austria the ECHR has recognized in general terms that '''rules enabling a court to sanction disorderly conduct in proceedings before it ' " derive from the inherent power of a court to ensure the proper and orderly conduct of its own proceedings'Tjudgment of 26 Jan. 1996, para. 33). See the ICTY case law in the matter of contempt of the Tribunal (Appeals Chamber judgement, Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR77, Judgement on Allegations of Contempt Against Prior Counsel, 3 I Jan. 2000 and Trial Chamber judgement of Prosecutor v. Simic et al., Case No. IT-95-9-R77, Judgement in the Matter of Contempt Allegations Against an Accused and his Counsel , 30 June 2000, at paras 18-28 and para. 91, respectively, where it is clearly spelt out that the ICTY power to deal with contempt has necessarily existed since the Tribunal's creation and does not depend upon a reference being made to it in the Rules of Procedure and Evidence . See the judgments of the ILO Administrative Tribunal in Vollering 15 (judgment of 8 July 1999, No. 1884, considerations 8 and 9) and in Martinuzzi (judgment of 12 July 2000, No. 1962, consideration 4), where the Tribunal asserted that it possessed the inherent power to impose a costs penalty upon a complainant in exceptional situations as part of the necessary power to control its own process . In this regard , see the individual opinion of Judge Shahabuddeen in Kanyabashi with regard to the ICTR Appeals Chamber decision of 3 June 1999 (on file with the author) , according to whom : "a judicial body, whether civil or criminal" possesses "the inherent competence ... to regulate its own procedure in the event of silence in the written rules, so as to assure the exercise of such jurisdiction as it has, and to fulfil itself, properly and effectively, as a court of law." See the decisions handed down by the Inter-American Court of Human Rights in Cantoral Benavides, Judgments of 3 September 1998 and 18 August 2000, paras 46 and 175, respectively, where the Court held that "[a]unque la Comisi6n no hubiera planteado la supuesta violacion del articulo 2 de la Convenci6n en su demanda ante la Corte, esta ultima estaria facultada para examinar la materia motu proprio ... El Estado demandado no puede, por medio de una excepci6n preliminar, pretender sustraer de la Corte esta faculdad que est inherente a su jurisdiccion,"

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Nonetheless, in some instances international judicial bodies have clarified their stand on the matter and tried to justify in legal terms the classification of certain powers as inherent. In a few cases, international courts have explained the inherent character of a particular judicial power by pointing to the existence of a general principle or rule of international law, or a principle of law common to the major national legal systems, specifically providing for such a power. For instance, in an order of 13 September 1997 in Gen ie Lacayo (Requestfor Review ofthe Judgment of29 January 1997), the Inter-American Court of Human Rights held that, even if a conventional authorization was lacking, it possessed the power to review its own judgments because this power was provided for by "a general principle of both domestic and international procedural law" . In his dissent , Judge Cancado Trindade took a more elaborate approach and pointed out that: The Court is for the first time called upon to pronounce on appeal of revision of a judgement, for which there is no provision either in the American Convention, or in its Statute or Regulations. The silence of these instruments on the question is not to be interpreted as amounting to vacatio legis, with the consequence of the inadmissibility of that appeal . ..The Court ought thus to decide ... on the basis . .. of general principles of procedural law, and making use of the powers inherent to its judicial functions. Human beings, and the institutions they integrate , are not infallible, and there is no jurisdiction worthy of this name which does not admit the possibility - albeit exceptional- of revision of a judgement, be it at international level, or at domest ic level" . (Emphasis in the original) . 18 Similarly, with regard to the power to issue interim measures, in several cases the Iran-US Claim s Tribunal has emphasized that such power has an "inherent character" , albeit expressly provided for by Rule 26 of the Tribunal's Regulations (accepted by the two governments). 19 In addition, in a recent decision the Tribunal made it clear that Rule 26 "embodied the generally accepted rule that an inter-

18

19

Annual report of the Inter-American Court of Human Rights , 1997, p. 180. See the interim awards issued on 4 February 1983, E-Systems Inc., in Iran-US Claims Tribunal Reports, Vol. 2, p. 51 ff., at 57; I Feb.1983, Questec lnc., ibid., p. 96 ff., at 98; 5 May 1983, Rockwell International System lnc., ibid., p. 310 ff., at 311 ; 8 Sept. 1983, United States v.Iran. Case No. 10812, ibid., Vol. 3, p. 336 ff., at 337 ; 20 Oct. 1983, FordAerospace , ibid., Vol. 8, p. 85 ff., at 87; II Nov. 1985, United States (on behalfofTadjer-Cohen) v.Iran, ibid., Vol. 9, p. 302 ff., at 304 ; 4 Dec. 1986, Panacaviar SA , ibid., Vol. 13, p. 193 ff., at 196.

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national tribunal is allowed to take interim measure s" ." Thu s it linked the claimed inherent character of the power to gran t interim relief to the existence of a general rule of international law enabling international judi cial bodies to exercise that power. International court s and tribunals have relied rarely upon the doctrin e of implied powers to ju stify the exercise of powers not expres sly envisaged in their constitutive instruments. The only clear instance can be found in the case law of the ICTY. In its decision of 18 July 1997 in the Blaskic (Subp oena), Trial Chamber II declared that the International Tribunal possessed all those powers which , albeit not expressly granted, could be " implied" by its constitutive instrument in order to enable it to fulfil its fundamental purposes and to allow it to function effectively. According to Trial Chamber II, such powers - which were characterized as "inherent" - had to be derived from the constitutive instrument of the International Tribunal by resorting to the doctrin e of implied powers. The Trial Chamber thus made expres s reference to the doctrine applied to the interpretation of the United Nations Charter by the ICJ, in a few well known case s, with a view to recognizing the legitimate exerci se, by the United Nation s organs, of powers not expressly conferred upon them by the Charte r. On this ground, the Trial Chamber held that the International Tribunal had the inherent power to issue a subpoe na duces tecum to a State or a State official for the produ ction of government orders." This holding was, however, reversed on appeal." In other cases, international courts have found that some jud icial powers have an inherent nature becau se they are aimed either at ensuring the proper administration of justice or at guarant eeing the effectiveness of the courts' juri sdiction. In Rio Grande Irrigation and Land Company, the Arbitral Tribunal instituted by the United Kingdom and the United States clearl y adopted this appro ach when it held: Whatever be the prop er constructions of the instruments controlling the Tribunal or the rules of procedure, there is inherent in this and every legal

20

21

22

Interim award of 10 December 1986, United Technolog ies Inc. v. Iran, ibid ., Vol. 13, p. 254 ff., at 257 . See Trial Chamber II deci sion of 18 July 1997, Decision on the objection ofthe Republi c of Croatia to the issuance ofsubpoe nae duces tecum, in particular paras 24 to 30, para . 41, and para . 64. According to the Appeals Chamber, the Intern ational Tribunal does not possess the power to issue subpoe nae duces tecum (in the sense of injunction acco mpanied by threat of penalt y) to States or to State officials and that that power cannot be regard ed as "i nherent" . See Blaskic Subpoena, supra note 9, para. 25.

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Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim . Such a power is inseparable from and indispensable to the proper conduct of business.P Other courts, including the IC], have reaffirmed this stand in more general terms.> In Nuclear Tests, the Court underlined that it: possess[ ed] an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits , if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all the matters in dispute, to ensure the observance of the inherent limitations on the exercise of the judicial function of the Court, and to maintain its judicial character. Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded."

23

24

25

Decision of 28 November 1923, in Reports ofinternational arbitral awards, Vol. VI, p. 130 II., at 135-136. See, for instance, the ICTY Appeals Chamber Judgment of 15 July 1999 in Tadic, quoted supra note 14. Judgments of20 December 1974, in ICJ Reports 1974, p. 253 ff., p. 457 ff., at p. 259, par. 23, and p. 463, par. 23, respectively. This reasoning was already followed by the Court in Northern Cameroons (Cameroon v. United Kingdom) , where the Court made it clear that: "[E]ven if the Court, when seized , finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court , as a court of justice, can never ignore . There may this be an incompatibility between the desires of an applicant , or, indeed , of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties , must be the guardian of the Court's judicial integrity." (Judgment of 2 December 1963, in 1CJ Reports 1963, p. 1 ff ., at 29). See also the Advisory opinion on the legality ofthe threat or use ofnuclear weapons , where the Court emphasised that, while it had the authority to deliver an opinion on such a question , it was "[a)n entirely different question . .. whether the Court, under the constraints placed upon it as a judicial organ, will be able to give a complete answer to the question asked of it". It may be contended that on this ground the Court refused "to conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake" (para. E of the advisory opinion delivered on 8 July 1996).

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III. INHERENT AND IMPLIED POWERS : TWO DIFFERENT NOTIONS

The international case law examined so far does not support sufficiently the opinion of those authors who consider that the notion of inherent powers merely corresponds to or overlaps that of implied powers. On the contrary, the only judicial decision which clearly could warrant this view was subsequently reversed on appeal; it was thus, in a way, deprived of its legal potential. In addition, the judgment at the appeal emphasized that a conceptual distinction had to be drawn between the notion of inherent powers and that of implied powers. However, the appeal judges failed to determine the exact content of the two notions and, consequently, the legal differences between them. The only indication given in this regard was that - according to international case law - the notion of implied powers may be used only with regard to the unexpressed powers of international organizations, while that of inherent powers pertains to international judicial bodiesP This is certainly correct, particularly in the light of K'J case law. It is well known that, on a few occasions, the Court has pointed out that the constitutive instruments of international organizations may be interpreted in such a way as to enable those organizations to exercise powers not expressly envisaged in those instruments. In so doing, the Court explicitly characterized those unexpressed powers as being implied, and made it clear that the powers had to be inferred by necessary implication from the constitutive instrument of each international organization.s?

26

27

Footnote 27 of the Blaskic Subpoena, supra at note 22, where the Appeals Chamber holds: "Consonant with the case-law of the International Court of Justice, the Appeals Chamber prefers to speak of 'inherent powers' with regard to those functions of the International Tribunal which are judicial in nature and not expressly provided for in the Statute, rather than to 'implied powers'. The 'implied powers doctrine ' has normally been applied in the case-law of the World Court with a view to expanding the competencies of political organs of international organizations." (Emphasis in the original.) In addition to the well known advisory opinions on Reparations for injuries suffered in the service of the United Nations (lC! Reports 1949, pp. 182-183) and on Effects ofawards of compensation made by the UN Administrative Tribunal (/C! Reports 1954, p. 57), see - more recently - the Advisory Opinion of 8 July 1996 on Legality of the use by a State ofnuclear weapons in armed conflict, para. 25, where the Court states the following : "The powers conferred on international organizations are normally the subject of an express statement in their constitutive instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities . It is generally accepted that international organizations can exercise such powers, known as 'implied' powers" .

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By contrast, whenever the Court referred to its own unexpressed powers, it refrained from applying the implied powers doctrine to its Statute. The Court underlined that it posses sed inherent powers without , however, trying to identify the legal basis for the exercise of those powers." Moreover, in some instances, the Court (or a few of its Judge s) termed as inherent those powers expressly laid down in the Statute , thus warranting the conclusion that the notion at issue was not based upon a broad interpretation of its constitutive instrument conducted on the basis of the implied powers doctrine. It would seem - at least from a methodological point of view - that the doctrine of implied powers cannot be applied to instruments establishing international courts or tribunals. The rationale behind this doctrine is the attempt at expanding as much as possible the powers of international organizations with a corresponding restriction (to the extent that this is admissible) of the powers of sovereign member States. The doctrine originated at a national level, chiefly in the United States, as a means of interpreting the Constitutions of Federal States with a view to expanding the powers of central authorities to the detriment of member States. It was then transplanted to an international level due, in particular, to the case law of the ICJ.29 It would seem that the logical and theoretical foundations for the applicability of the implied powers doctrine are lacking in the case of instruments establi shing international courts and tribun als. Here the so-called "federal analogy " cannot be applied. The question is not that of expanding the powers of international institution s so as to narrow correlati vely those of member States but, rather, the need for a doctrine applicable to international judicial bodies to enable them to exercise powers that logically are inherent in their judicial role. These are powers that courts need for the discharge of their functions; without them they would be unable to fulfil the role for which they have been set up. If the logical foundation s of the implied powers doctrine are lacking, then it is unclear on what ground s this doctrine could be applied to instruments establishing international judic ial bodies, be they of a permanent, semi-permanent or ad hoc nature. There is an additional element to be taken into account that points to the existence of a legal difference between the notions of implied and inherent powers. As stated previously, the implied powers doctrine allows for the exercise of powers

28

See the judgments of 20 Dec ember 1974 on Nuclear Tests, quoted supra, note 25.

29

For a critical assessment of the applica tion of the implied powers doctrin e at the international level, see Arangio-Ruiz, 'The "Federal Anal ogy" and the U.N. Charter Interpr etation: a Crucial Issue' , in European Journal of International Law , 1997, p. 1 ff.

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not expressly conferred upon international organizations by their constitutive instruments . Such unexpressed powers are derived from those instruments by necessary implication, in that they must be necessary for the achievement of the purposes of the organization or for the effective exercise of the competences expressly granted to it. Plainly, as international organizations may pursue different purposes and may be granted a different range of competences, the doctrine of implied powers does not lead to the same results when applied to the different instruments used to establish those organizations. In other words, the powers inferred by necessary implication from the instruments depend strictly on both the specific competences d'attribution and the specific purposes of each organization. Consequently, they vary according to the particular instrument used to set up the organization. The situation is different with regard to the constitutive instruments of international judicial bodies, which invariably grant such organs the power to settle specific disputes (or class of disputes) or, as in the case of international criminal tribunals, to establish the innocence or guilt of individuals charged with international crimes. In addition, the purpose spelt out in the constitutive instrument establishing international courts and tribunals , is to ensure compliance with, or the uniform interpretation and application of, the engagements undertaken by the entities setting up the judicial organ." Hence, the application of the implied powers doctrine to the constitutive instruments of international judicial organs would necessarily lead to the inference that almost all courts and tribunals do indeed possess the self same class of unexpressed powers. Would it not be more appropriate to contend that, with respect to international judicial bodies, the notion of inherent powers has a meaning and legal basis different from that of the implied powers of international organizations?

IV. THE QUEST FOR AN AUTONOMOUS NOTION OF INHERENT POWERS OF INTERNATIONAL JUDICIAL BODIES

A. The inherent powers doctrine and its legal basis in international law In international case law, the notion of inherent powers of international courts and tribunals is sometimes presented as the logical corollary of the judicial nature of

30

See for instance Art . 19 of the European Convention on Human Rights ; Art. 33 of the InterAmerican Convention of Human Right s; Art. 220 of the EC Treaty (consolidated text).

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such organs and of their duty to ensure a sound administration of justice." This notion is substantially based on a domestic law theory : the common law doctrine of "the inherent jurisdiction of the Court", whereby superior courts of law are deemed to possess all those powers necessary to maintain their authority, to control and regulate their own proceedings and to prevent their proceedings from being abused or obstructed. In common law countries, this doctrine (almost unknown in countries following the civil law tradition) constitutes, for any superior court of law, "its very life-blood, its very essence, its immanent attribute", as it endows the court with all the powers necessary to maintain and fulfil its character as a court of justice." It is not surprising that the doctrine of the inherent juri sdiction of the Court originated in common law countries, and is deeply rooted there . Normally, in those countries there are scant or few statutory provisions on procedural matters . Consequently, to supplement the paucity of statutory regulations, courts of law need to resort to the notion of inherent powers in order to deal with the multifariou s occurrences cropping up in judicial proceedings. In the international legal order, courts and tribunals have to face a similar situation . The proposition that international judicial bodies may be deemed to possess powers not expressly envisaged in their constitutive instruments finds its raison d 'etre in the particular juridical context within which it operates . Those bodies are not assisted by the means and instruments that may normally be found in national legal orders , particularly in civil law countries. In the international legal system, the lack of an institutionalized and integrated judiciary means that each court or tribunal constitutes a kind of unicellular organism. It is therefore inevitable that such "monads" often (and perhaps necessarily) find within themselves the means and powers that enable them to tackle the procedural problem s that may emerge in

3\

In addition to the case law referred to above , notes 23, 24 and 25, the individual opinions of some judges of the ICJ should be mentioned, in particular the dissenting opinion of Judge Koroma in Request for an Examination ofthe Situation in Accordance with para. 63 ofthe Court 's Judgement of20 December 1974 in the Nuclear Tests, where he stated: "In making provision in paragraph 63 in the way it did, the Court was acting in exercise of the inherent powers it enjoy s as the result of its existence .. . The Court in my opinion has the power to regulate its own procedure and to devise a procedure sui generis. It is, after all, a court" (para . 52 of the dissenting opinion.)

32

See Jacob , 'The inherent jurisdiction of the Court ' , in Current legal problems, 1970, p. 23 ff.; Jacob. , The fabri c of English civil justice, London, 1987, pp. 60-62 . Sec also Halsbury 's Laws ofEngland, Vol. 37, pp. 22-23 , para. 14.

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the course of judicial proceedings, and thus safeguard their judicial character," It would be inconceivable for international judicial bodies to fulfil their mandate by exercising only the rather limited powers expressly conferred upon them by their constitutive instruments . Furthermore, such instruments are perhaps unsuitable for the task of providing an international court with the means and powers which would enable it to face effectively all possible situations arising from the conduct of judicial proceedings and which might even jeopardize their judicial character. These instruments, being of conventional origin (or being based, as in the case of the two ad hoc international criminal tribunals or of the United Nations Administrative Tribunal, on a resolution passed by the organ of an international organization), cannot be as detailed and specific as national codes, which regulate all possible procedural problems . The doctrine of inherent powers thus constitutes an

33

As the ICTY Appeals Chamber put it in Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, para . II , "International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided). " The characterization of international tribunals as "self-contained systems " has been taken up by Condorelli, 'Jurisdictio et idestordre judiciaire en droit international: quelques remarques au sujet de l'arret du 2 octobre 1995 de la Chambre d'appel du Tribunal penal international pour l'ex-Yugoslavie dans l'affaire Tadic, in Melanges Valticos, Droit et justice, (Paris, 1999), p. 280 ff., who prefers however to describe international tribunals as "monads". According to this author : "[LIes divers organes internationaux appeles a jus dicere ne font indiscutablement pas partie d'un 'ordre ' judiciaire, mais constituent des sortes de "monades " repliees sur elle-memes: chaque juge, pourrait-on-dire , est ii lui seul un ordre judiciaire tout entier; autonome et independent par rapport aux autres, puisque aucun mecanisme n 'assure la coherence entre tribunaux, comme aucun mecanisme n 'ossure, en particulier, une repartition rationelle des taches, une 'division du travail' ordonnee entre tribunaux internationaux , comme aucun mecanisme n' assure la coherence de leur action", p. 285. (Emphasis added.) (It should be added that, in the opinion of this author, itis doubtful that the ICTY "puisse etre vraiment defini comme structure autonome or 'self-contained '.. . dans la mesure ou il se place dans le systeme des N.U.: Ie TPIY constitue de toute evidence une composante d'un ensemble plus large (l'Organisation d 'appartenance) , s' agissaru d'un organe subsidiaire du Conseil de securite" According to Condorelli, it follows that the ICTY "aurait ... pu adresser son organe principalla requete que la question juridique portant sur la legalit« de son institution fut adressee par Ie Conseil a la Cour conformement al' art. 96, par. 1 de la Chane, eventuellement meme sous reserve de la regler tout seul au cas ou Ie Conseil devait refuser de formuler la demande d'avis consultatif," lbid., pp. 285-286.)

a

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appropriate legal construct for enabling international judicial bodies to fill the lacunae of their constitutive instruments. Plainly, the application within the international legal order of the common law doctrine of the inherent jurisdiction of the Court needs to rely upon a specific legal source. The general application by courts and tribunals of the notion of inherent powers may warrant the conclusion that a general principle has gradually taken shape in international law, whereby international judicial bodies may exercise those powers that prove necessary for guaranteeing the sound administration of justice and protecting their judicial nature. This conclusion finds some support in State practice . In a few cases , States have indeed emphasized that international courts and tribunals do possess powers other than those expressly conferred upon them by their constitutive instruments, and sometimes have termed such powers inherent to the exercise of their jurisdiction." For instance , in a recent case before the IC], Germany contended that the Court had the power to adjudicate the alleged breach by the United States of an order of the Court indicating interim measures . As Germany put it in its brief: The question of whether or not an Order of the Court on Provisional Measures - issued in a specific case pending before the Court - has been violated

34

See for instance the position taken by the United Kingdom before the United States-United Kingdom Arbitral Tribunal, where the United Kingdom underlines that "an international tribunal has an inherent power to rectify a material error found to exist in its decision, that is one analogous to an error resulting from a slip of the pen or from miscalculation or miscasting of arithmetical figures " (see the position taken by the United Kingdom as reported by the Arbitral Tribunal in its Decision No. 23 (supplementary decisions and clarifications) of I November. 1993, in International Law Reports, Vol. 102, p. 564 ff., at para . 1.32. See also the position adopted on the inherent character of the power of revision of arbitral awards taken by the United States before the same tribunal (ibid., para. 1.26). In addition, see the position adopted by New Zealand before the ICJ, in Requestfor an examination of the situation in accordance with para. 63 of the Court 's 1974 Judgment, where the Government of New Zealand asserted that, in including para . 63 in the 1974 judgments, the Court exercised "inherent powers to preserve its jurisdiction" (oral submission of Mr. McGrath, verbatim records of the public sitting held on II September 1995, CR/19, para . 28; in the same vein, see the oral submission of Mr. East, ibid., para. 61) . See also the position taken by the United States before the ICJ, in Lockerbie, where Professor Schachter recognized that the Court is empowered with the "inherent power" to interpret and apply a legal rule in a case before it - but at the same time underlined that that inherent power could not be stretched to a power of review and annulment of Security Council decisions (verbatim records of the public sitting held on 15 October 1997, CR 97/19, para . 4 .16).

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Chapter 16 or not by one of the Parties, undoubtedly falIs within the scope ofthe inherent jurisdiction of the Court"

B. Scope and limitations of the general principle conferring inherent powers on international judicial organs If the contention is accepted that a general principle of international law granting judicial organs a set of residual inherent powers operates in international law, it proves necessary to determine what powers are envisaged by this general princi ple. Clearly, it is impossible to enumerate alI these powers . However, it is possible and useful to try to set out the criteria by which it can be established whether a particular power falIs within the class under discussion. In this connection, the necessary starting point must reside in the unique features of international ju stice. It is widely acknowledged that in the international legal system the exercise of jurisdiction is based upon State consent and is not integrated in an institutionalised legal system. As a consequence, any power not expressly provided for may only be exercised if it does not encroach on the freedom and sovereign rights of State s. In addition, unexpressed powers cannot belong to the class of inherent powers whenever they unduly restrict the freedom of other international subjects, such as intergovernmental organizations, which may be affected by judicial activity. This limitation of the inherent powers doctrine is borne out by international case law which shows that only powers that merely (i) aim at regulating the proceedings, or (ii) are instrumental in the adjudication of the main claim , or (iii) are designed to safeguard the j udicial character of courts, do not need to be expressly provided for by a specific legal source (be it conventional or general). Thus , for instance, international judicial organs have justified the power to make a preliminary finding on the existence of a dispute in contentious cases by merely pointing to the need to safeguard their judicial nature. Similarly, the necessity of safeguarding their judicial character, ensuring the proper conduct of proceedings or ensuring a fair administration ofjustice have alI been regarded as warranting the exercise

35

Memorial of theFederal Republic ofGermany, Vol. I, 16Sept. 1999, La Grand, para. 3.60. In his oralpleading in thesame case,counsel for Germany alsoreferred to the"inherent" characterof the Court's power to determine the means by which it willdetermine disputed facts (verbatim records of 13November 2000, CR 2000/27, para. 12of theoralsubmission byMr. Donovan).

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of other powers, such as the powers to ascertain whether a claim fell within their jurisdiction, to regulate their own procedure, to evaluate the credibility of a witness' testimony, to sanction disorderly conduct in the proceedings, and so on. However, whenever the exercise of one of these powers might have had an "outside" impact (because it entailed limitations on the freedom of States or other international entities, not expressly envisaged in their constitutive instruments), international judicial bodies declined to regard themselves as authorized to exercise the power at issue. On the other hand, whenever they have concluded that they did have the power, they have done so only by relying upon the existence of a general source granting them the authority to exercise that power. For instance, the ICTY Appeals Chamber refused to issue subpoenae duces tecum (that is, injunctions accompanied by the threat of sanction) to States or senior State officials for the production of government documents because the exercise of that power would have restricted States' sovereign rights in a manner not expressly envisaged by the Tribunal's Statute." There are, nevertheless, cases where international courts and tribunals have held that they did possess powers which, although not envisaged in their constitutive instruments, involved restrictions on States' freedom or sovereign rights or limitations of the freedom of other international entities. However, in these cases , international judicial bodies have found the legal basis of those powers in a specific source, that is a source other than that of the general principle of inherent powers referred to above. For instance, the Inter-American Court of Human Rights has held that it possessed the power to review their own judgments. It has done so by referring to an ad hoc general principle or rule of international law and to a general principle on a matter that was common to all the major nationallegal systems." Clearly, in these last instances, the term "inherent power" if and when used - does not designate the unique features of the inherent powers doctrine set out above. In other words, the expression has not been used by the courts as a term of art, but merely to indicate that a judicial power, germane to and necessary for - the proper administration of justice instead of being envisaged by the courts ' constitutive instruments, was conferred by a spe cific source. It should be added that with regard to a particular class of international judicial organs, that is international criminal tribunals, the inherent powers doctrine encounters another possible limitation , additional to that of respect for the freedom of States and other international entities. International criminal proceedings must

36

See footnote 22, supra.

37

See the Judgement referred to in footnote 18, supra.

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always ensure the "equality of arms" between prosecution and defence and, more generally, they must safeguard the fundamental rights of the accused . Therefore, it may be contended that, in relying upon the notion of inherent powers, such tribunals are barred from exercising "unexpressed" powers in breach of these two fundamental principles of international criminal justice. This proposition finds support in ICTY case law. In particular, reference can be made to the Trial Chamber II judgment in Kupreskic, where the Chamber held that the exercise of powers inherent in the Tribunal's functions may have found a limitation in the need to safeguard fully the rights of the accused . Consequently, in the case at issue, the Trial Chamber found that the iura novit curia principle, although normally applied to international judicial proceedings, could not be relied upon by the Tribunal because its application might infringe upon the rights of the accused , particularly the right to be informed "promptly and in detail" of the "nature and cause of the charge again st him" ." Two qualification s to the above are necessary. The first, which might seem obvious, is that a power falling within the class of inherent powers proper, may not be exercised if the court 's constituti ve instrument expressly removes that power from the court." A case in point is Decision No. 23 (Supplementary decisions and clarifications) with regard to the Heathrow Airport User Charges where, in discussing the scope and limits of inherent powers, the Arbitral Tribunal clarified that it " [could not] exercise any power the existence of which [was] inconsistent with the terms of the Parties' agreement as a result of which alone the Tribunal [had] any being".40 The second qualification is that, in assessing the inherent nature of an " unexpressed" power, the unique features of each particular court or tribunal should be taken into account. There may be tribunal s which , on account of the specific nature of their jurisdiction, may exercise inherent powers that cannot be exercised by tribunals of a different nature. An illustration of this is the power to act upon contempt of the tribunal, and consequently impose fines or imprisonment on a private individual found guilty of contempt. Such a power, which may be deemed

38

39

40

Prosecutor v. Kupreskic et al., Case No. IT-95-16, Judgement, 14 Jan. 2000 , paras 739-741.

With regard to the power of an international tribunal to establi sh its main jurisdi ction, see the deci sion of 28 November 1923 in Rio Grande Irrigati on and Land Company Ltd. , where the Arbitr al Tribunal instituted by the United Kingdom and the United States held that that power had an inherent nature and "[could] only be taken away by a provision framed for that express purpose." (Supra note 5, at 136.) Deci sion of 1 November 1993, in International Law Rep orts, Vol. 102, p. 579, para. 2.26.

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inherent in international criminal tribunals, does not devolve upon inter-state tribunals or other international courts not endowed with criminal jurisdiction . Clearly, in the case of international criminal tribunals, the power at issue is exercised over individuals who are not acting on behalf of a State or other international entity and the power is warranted by the need to administer criminal justice. In contrast, a power such as this could not be exercised by an international non-criminal court over a State or State official, because it would amount to inadmissible interference with State sovereignty. By the same token, international tribunals such as administrative courts of international organizations or other international courts which may be petitioned by individuals (for instance, the European Court of Human Rights), may exercise the inherent power to impose fines on individuals who abuse their right to petition by lodging frivolous or vexatious complaints." This power could not be regarded as inherent in the case of inter-state tribunals, or with regard to complaints lodged by States , since the exercise of that power would lead to a serious limitation of States' freedom .

V. ADVANTAGES AND "POTENTIAL" OF THE INHERENT POWERS DOCTRINE

There is no dispute that this doctrine has at least two major advantages. First, the doctrine may explain and give legal justification to the exercise of powers that have been used even though they are not provided for in the constitutive instruments of courts or tribunal s or in their rules of procedure or in specific international principles. For instance, with regard to the Permanent Court of International Justice, it may be recalled that the power of the contending parties to file preliminary objections was admitted even before rules on the matter had been included in the rules of procedure." As for international criminal proceedings, the courts have

41 42

See the decision of the ILO Administrative Tribunal quoted supra note 15. Judgment of30 August 1924 in Mavrommatis, in PCIJ Series A. No.2 (1924), p. I ff., at 16, where the Court stated: "Neither the Statute nor the Rules of Court contain any rule regarding the procedure to be followed in the event of an objection being taken in limine litis to the Court's jurisdiction. The Court therefore is at liberty to adopt the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law," See also the 1925 judgment in Certain German interests in Polish Upper Silesia, ibid., No.6 (1925), where the Court held: "Whether this submis sion should be classified as

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exercised the power to reprimand the prosecution for failing to disclose evidence to the defence.v as well as the power to order the prosecution and defence to submit to the court the witness statements taken prior to the trial." The second advantage is that the doctrine may provide a basis for including in self-made rules of procedure those powers not envisaged by the constitutive instruments. There are many illustrations of this but it will suffice to mention the power of an international court or tribunal to interpret its own judgments or to allow for counter-claims. The inherent powers doctrine also offers potential for future application. A case in point is the Statute of the International Criminal Court. Article 4, para. 2, of the Statute stipulates that the Court "may exercise its functions and powers, as provided in th[eJ Statute , on the territory of any State party and, by a special agreement, on the territory of any other State" (Emphasis added.). This stipulation, taken literally, might be construed as allowing the Court to exercise only those powers expressly set out in the Statute. Under a more correct interpretation, the stipulation should be read with the proviso that the Court will also be authorized to use all those powers which, although not laid down in the Statute, are conferred by the general principle on inherent powers. This proposition is warranted, first, by the fact that Article 4, para. 2, does not take away from the Court powers already inherent in its judicial functions, and, second, by the need the Court will undoubtedly feel to resort to "unexpressed" powers for the proper administration of criminal justice and the safeguarding of its own judicial nature.

an 'objection' or as ajin de non-recevoir, it is certain that nothing, either in the Statute or the Rules which govern the Court's activities, or in the general principles of law, prevents the Court from dealing with it at once, and before entering upon the merits of the case; for there can be no proceedings on the merits unless this submission is overruled." 43

44

See the ICTY Trial Chamber II order of 5 June 1998, in Prosecutor v.Anto Furundijia, Case No. IT-95-17/l on file with the author. For comment, see S. Zappala, 'Censurato il procuratore dalla camera di prima istanza per la condotta predibattimentale' , in Diritto penale e processo, 1998, No. 10, p. 1256. See the ICTY Trial Chamber order of28 November 1997, in Prosecutor v. Slavko Dokmanovic, Case No. IT-95-13a on file with the author. For comment see S. Zappala, 'Trasmissione di documenti che le parti intendono presentare al processo prima del dibattimento' , ibid., 1998, No.6, p. 723 ff.

17

IS A STATE SPECIALLY AFFECTED WHEN ITS NATIONALS' HUMAN RIGHTS ARE INFRINGED? Giorgio Gaja

I. INTRODUCTION The case in which a State protects its nationals' human rights against any infringement that another State has committed, or may commit, is situated at the point of convergence of two legal institutions. Historically, these two institutions have developed in markedly different ways. One of them, which is relatively recent, is the protection of human rights. It is designed to protect all individuals: in most cases, against their State of nationality. The other, more ancient, institution is diplomatic protection . It traditionally seeks to ensure that national s or their property are given a certain treatment abroad. Part of the standard that was considered , at least by Western States, as applying to the treatment of aliens has gradually evolved into a standard that international law requires States to adopt with regard to any individual. Thus, for instance , denial of justice, the characteristic infringement of rights of aliens, partly corresponds to the violation of the right to a fair trial, as protected under Article 14 of the United Nations Covenant on Civil and Political Rights and other provisions of human rights treaties. However, these treaties also require parties to grant individuals some rights beyond those which States arguably have to ensure under rules of international law concerning aliens. A clear example is given by most political rights, which pertain to nationals and not to aliens . While the content of the obligations that a State has under the international law of aliens to some extent coincides with that of obligations under rules of international law concerning human rights, the corresponding State rights are not necessarily the same .

LiC , Vohrah et al. (eds.), Man 's Inhumanity to Man , 373-382 ©2003 Kluwer Law International. Printed in the Netherlands.

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Taking up the subject of treatment of aliens first, only the State of nationality is regarded as entitled to a right, which is exercised through diplomatic protection. According to the traditional conception, as expressed by the Permanent Court of International Justice in the Mavrommatis case, "[b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right - its right to ensure, in the person of its subjects , respect for the rules of international law". 1 This clearly implies that the State of nationality is free to make a claim for the national's benefit or to abstain from making such a claim. The same State is also entitled to settle the claim at its own discretion or even to waive it. It has more recently been held that, when exercising diplomatic protection, the State nevertheless enforces the individual's rights, not its own rights.' However, it remains established that only the State of nationality is entitled to bring a claim for the individual's benefit at the international level. Obligations concerning human rights are of a different nature. They do not give rise to a bilateral relation between the State required to give protection and the State of nationality. They are typically erga omnes obligations. Therefore a request of compliance or an invocation of responsibility may be made by any State towards which the obligation exists and, under certain conditions, also by the individual concerned. The present study intends to address the following question: when a State seeks to protect its nationals' human rights with regard to other States, does nationality have the same importance as generally occurs in the field of treatment of aliens? In other words, does the State of nationality have a special status? Nationality clearly is immaterial in so far as the applicability of the human rights standard is concerned. One and the same standard applies to all individuals irrespective of their nationality. With reference to the human rights standard, neither general international law nor treaties give any relevance to nationality, albeit with the exception of some provisions granting individuals political rights or rights of abode towards their State of nationality. This exception is of no relevance to the question under discussion here, which only concerns claims that the individual's national State may bring towards other States.

I

2

P.C.U ., Publications, Series A, No.2, at 12. See M. Bennouna, 'Preliminary report on diplomatic protection' , doc. NCNA/484 (paras 49-54) and 'La protection diplomatique, un droit de I'Etat' in Boutros Boutros-Ghali Amicorum Discipulorumque Liber, Vol. I (1998) 245-250.

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Even if the human rights standard applies irrespectively of nationality and the obligation to respect that standard in any specific case exists towards several States , the problem remains of whether a State, when requesting for the benefit of one of its nationals compliance with that standard, is in the same position as all the other States that are also entitled to put forward a claim for the same person or whether the first State enjoys a special status and in particular whether one can correctly say that the same State then acts on the basis of diplomatic protection. When considering whether diplomatic protection also applies to the protection of a national's human rights, it is not necessary to address the often debated question whether human rights treaties that establish procedures for ascertaining infringements allow States to put forward claims also outside those procedures. It is sufficient to note that the problem to be discussed here anyway arises when an obligation concerning human right s exists under general international law or under treaties that do not set up an exclusive procedure, and therefore allow the State of nationality to bring a direct claim towards the responsible State in case of breach .

II . THE RELATION BETWEEN PROTECTION OF HUMAN RIGHTS AND DIPLOMATIC PROTECTION IN THE JUDICIAL PERSPECTIVE

One may find in one of the judgments of the International Court of Justice some useful elements for answering the question raised in the previous paragraph. In the Barcelona Traction judgment on the merits, the Court distinguished between erga omnes obligations in the field of human rights and obligations concerning the treatment of aliens. The Court said that: an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. In view of the importance ofthe rights involved, all the States can be held to have a legal interest in their protection; they are obligations erga omnes ? This statement was meant to make the point that the claim then before the Court did not involve the application of a standard affecting the international community as a whole and thus was within the domain of diplomatic protection.' Had the

3

I.C.l. Reports 1970 at 32 (para. 33).

4

I.e.J. Reports 1970 at 48 (para . 91).

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obligation existed toward s the international community as a whole, it would have been outside "the field of diplomati c protection". Thu s the requirement of nationality of claims , which is essential when a State exercise s diplomatic protection, would not have been relevant. The Court could have still concluded, as it did, that the rights affected by the Spanish measures were Barcelona Traction 's rather than its shareholders' , but would not have failed to note that Belgium was entitled to protect the company's rights, irrespective of the compan y's Canadian nationality. It is important to stress that the Court appeared to establish a sharp distinction between the exercise of diplomatic protection , on the one hand, and a State's claim with regard to an obligation toward s the international community as a whole. In the latter case , diplomatic protection does not come into play, nor would nationality be a relevant factor for the purpose of the admissibility of the claim. All States would be entitled to put forward a claim when an obligation towards the international community was infringed: when one such obligation in particular is in question, in a specific case , [. ..] all States have a legal interest in its observance.' The Court expressly referred to obligations under "the principle s and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination"." As the Court found that human rights had not been infringed in the case and also that the affected rights did not pertain to the applicant State' s national s, there was no need for the Court to discuss whether the State would have been in a special position had it brought a claim for its nationals' benefit with regard to an obligation existing towards the international community as a whole. However, there is nothing in the judgment suggesting that, outside the field of diplom atic protection , the State of nationality has a status that differs from that of any other State which is equally entitled to put forward a claim for protecting an individual's human rights.

5

I. C.l . Reports 1970 at 32 (para. 35) .

6

I.C.!. Reports 1970 at 32 (para . 34).

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III. THE CURRENT APPROACH TAKEN BY THE INTERNATIONAL LAW COMMISSION ON THE TOPICS OF DIPLOMATIC PROTECTION AND STATE RESPONSIBILITY

The International Law Commission has been considering the question at issue in two different contexts. One is the topic of diplomatic protection, on which the Commission has not yet adopted any draft articles . In his first report, the present Special Rapporteur viewed diplomatic protection as an essential instrument for safeguarding human rights. He wrote inter alia: As long as the State remains the dominant actor in international relations, the espousal of claims by States for the violation of the rights of their nationals remains the most effective remedy for the promotion of human rights. Instead of seeking to weaken this remedy by dismissing it as an absolute fiction that has outlived its usefulness, every effort should be made to strengthen the rules that comprise the right of diplomatic protection.' Some members of the Commission expressed similar views, considering that diplomatic protection also covers the protection of human rights." However, it is not clear what is meant when it is said that a State exercises diplomatic protection for protecting its nationals ' human rights. Does this opinion imply that the definition of diplomatic protection as given in the Mavrommatis case? also applies when the individuals ' human rights are at stake? Would it not be necessary to distinguish between the case in which the treatment of an individual is the object of a bilateral obligation towards the State of nationality and that in which a State is under an obligation concerning human rights, because in the latter case the obligation exists in any specific instance towards either a great number of States or the international community as a whole? Moreover, would it not be necessary to recognize that individuals, when their human rights are affected, have a greater role concerning their protection than when they may only be protected by their national States under the rules of international law concerning aliens? All these questions have not yet been examined by the International Law Commission. The implications of

7

8

9

J.R . Dugard , ' First report on diplomatic protection ' , doc . A/CNA/506 at 10 (para. 32). See espec ially the interventions of Mr. Rodriguez Cedeno (doc. AlCNA/SR.2616 at 19), Mr. Brownlie (doc. AlCNA/SR.2617 at 17-18), Mr. Luka shuk (doc. AlCNA/SR. 2618 at 16) and Mr. He (doc. AlCNA/SR.2619 at 7).

Supra note I.

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considering diplomatic protection as comprising the protection of nationals' human rights need further analysis. The second context in which the Commission has dealt with the question here under discussion is that of State responsibility . According to the draft articles as adopted on first reading, States were either injured by a wrongful act or they were not. Article 40 (2)(e)(iii) did not appear to make a distinction among States in the case that human rights were infringed: all States other than the responsible State were equally regarded as "injured" and the State of nationality was not singled out.!?

The draft articles on State responsibility, as adopted on second reading, II consider that only some States are among those entitled to invoke responsibility as "injured States", in certain cases because they are "specially" affected even if the obligation breached also exists towards other States or the international community as a whole (Article 42). However, the draft articles do not provide in their new version clear guidance about whether States of nationality should be regarded as "injured" when a national's human rights are infringed. First of all, the draft articles do not directly take the individuals ' position into consideration when individuals' rights are infringed by a wrongdoing State. According to Article 33 (2), the part of the draft articles dealing with the "content of the international responsibility of a State" does not cover "any right, arising from the international respon sibility of a State, which may accrue directly to any person or entity other than a State". Thus, the draft articles do not examine either the existence of individuals ' rights as a consequence of a wrongful act or the way in which any such right would affect the States' rights towards the responsible State or the implementation of responsibility. Second, while in the case of obligations erga omnes the draft articles envisage the possible existence of a "specially affected" State, it is not said what makes a State fall into that category. The Special Rapporteur referred in his report to the case of the breach of the prohibition of the use of force: while the obligation not to use force exists towards the international community as a whole and is breached

10

11

For critici sm of this provision under different aspects see G. Gaja, 'Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?', 10 Europe an Journal of International Law (1999) 365-370 and J. Crawford, 'The Stand ing of State s: A Critique of Articl e 40 of the ILC's Draft Articles on State Responsibility' , in M. Andena s (ed .), fiber Amicorum in Honour ofLord Slynn of Hadley . Judicial Review in International Perspe ctive (2000) 25 at 38. Doc. A/56/1O.

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whenever force is used in any specifie case, the State against which force is used is "specially affected".'? Maya similar conclusion be reached when an alien's human rights are infringed? Could the national State be then considered as "specially affected"? Would this necessarily mean that the national State is entitled to put forward a claim in the same way as if the responsible State had breached a bilateral obligation concerning aliens? The draft articles offer an alternative solution to considering the national State as "specially affected". When human rights are infringed, the individuals' national State could alternatively be regarded as entitled to invoke responsibility as a State other than an "injured State" under Article 48 (1). The national State would then be in the same position as all the other States to which the breached obligation was due. According to Article 48 (2), the responsible State would be under an obligation towards all these States to cease the wrongful act, to provide assurances and guarantees of non-repetition and to make reparation "in the interest [. ..] of the beneficiaries of the obligation breached". The entitlement of States other than those "injured" to claim reparation greatly reduces the importance of the distinction between these States and the "specially affected" States. True, there is some controversy with regard to the idea that States other than those "injured" may request compliance with the obligation to make reparation.'! However, this entitlement can hardly be dispensed with. First of all, the fact that there is a national State does not affect the obligation for the protection of human rights towards other States. Moreover, should only the national State be entitled to claim reparation, no State would be in a position to request compliance with the obligation to make reparation in all the cases in which the individual whose human rights are infringed is, as generally occurs, a national of the responsible State. The very existence of the responsible State's obligation to make reparation would then be put in jeopardy. According to the draft articles on State responsibility, the position of injured States is not identical to that of the other States that are entitled to invoke responsibility . In the case of an obligation towards several States or the international community as a whole, only a "specially affected" State would have, as

12

13

J. Crawford, 'Third report on State responsibility' , doc. AlCNA/507 at 47 (para. 106). A few critical views were expressed in the General Assembly's Sixth Committee. For instance , the delegate of France , Mr. Abraham held that "States with only a legal interest could seek cessation of another State's violation but could not seek reparation for damage caused by an internationally wrongful act by which they were not directly affected" . See doc. AlC.6/ 55/SR .15 at 2 (para . 7).

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an injured State, the right to claim reparation in its own interest (see Article 48 (2)(b) ).14 Furthermore, it is controversial whether States other than the injured State may take countermeasures at the request and on behalf of any State injured by the breach (see Article 54 (I» . It is doubtful whether these differences between injured States and the other States entitled to invoke responsibility are pertinent when an individual's human rights are infringed . Reparation would then have to be made in the individual's, not the national State's interest. As far as countermeasures are concerned, it does not seem congruous that in the case of an infringement of human rights a State may take measures only when the individual has the nationality of a State other than the responsible State and the State of nationality requests that they should be taken .

IV. A CRITICAL APPRAISAL Should one accept the distinction traced by the International Law Commission between injured States and other States entitled to invoke responsibility, would the national State have to be considered as injured when a national's human rights are infringed? A positive answer would have to be given if one followed the views expressed to the effect that, unlike other States, the State of nationality is "directly" injured by the infringement." It is true that when human rights are infringed, a State may be likely to focus on the breaches affecting its nationals. This is not always the case: one may refer, for instance , to the position taken by the member States of the European Union with regard to the disappearance of persons in Argentina." Any

14

The same applies , under Article 42 (b)(ii), in the case, of no relevance here, of the breach of an integral obligation.

15

For instance, according to B. Simma, 'From Bilaterali sm to Community Interest in International Law ' 250 Recueil des Cours (I 994-VI) 217 at 296, "in the instance of their violationexcept in cases where human right s of foreign nationals are concerned - there simply exists no directly inj ured other State" . Similarly, K. Zemanek, 'New Trends in the Enforcement of erga omn es Obligations' , 4 Max Planck Yearbook of United Nations Law (2000) I at 29 wrote: "Except in the case where the victim has the nationality of the claimant, no other state is directly affected".

16

See the interventions by Mr. Boel and Mr. Ghikas reproduced in 6 Italian Yearbook of International Law (1985) 273-274 .

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way, even if States gave particular weight to nationality when deciding whether to bring a claim , this is not necessarily significant from a legal point of view. I? I have already noted that the rules of international law concerning human rights have developed without giving relevance to nationality - whether of the claimant State, of the responsible State or of any other State . All the States are held to be equally interested in the respect of human rights . This point was clearly made by the International Court of Justice in its advisory opinion on Reservations to the Genocide Convention, when the Court said: In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d 'etre of the conven-

tion." In the same line of reasoning, the Court gave no relevance to the nationality of the victims of the alleged genocide when Yugoslavia's counter-claim against Bosnia and Herzegovina was admitted.'? The difficulty of considering the State of nationality as "specially affected" by the infringement of human rights is particularly clear when the State committing the breach is, as is most likely to occur, the individual's national State . How can one assume that this State is at the same time the responsible State and the injured State? Could a State be regarded as "specially affected" when the infringement of its nationals' human rights is committed by another State and not affected when the first State is the author of the breach?

17

18 19

See G. Arangio-Ruiz, 'Fourth report on State responsibility' Yearbook of the International Law Commission (1992) Vol. II, Part One at 47 (para. 134). W. Geck, ' Diplomatic Protection' , in R. Bernhardt (ed.), Encyclopedia ofPublic International Law, Vol. I (1992) 1045 at 1060 noted that, in the case of human rights treaties , as State parties "are all on an equal footing , none has been violated in the person of the individual". The same may be said with regard to obligations under general international law in the same field.

I.C.!. Reports 1951 at 23. l.Cd. Reports 1997 at 19 (paras . 34-35). It is to be noted that referring to the main claim in the same case in an intervention at a conference, P.H. Kooijmans said that, since Bosnia's nationals were victims, Bosnia was "directly injured by the alleged violations of the Genocide Convention by Yugoslavia" and could "claim compensation", unlike other States "not directly injured by the violation". See A. Randelzhofer and C. Tomuschat (eds.), State Responsibility and the Individuals - Reparation in Instances of Grave Violations of Human Rights (1999), 192.

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Even if one considered the State of nationality as "specially affected" , it would be unacceptable to transform human rights into State rights according to the approach taken in the Ma vrommatis case with regard to diplomatic protection. The last Special Rapporteur on State responsibility made the following remark: What does seem to be special about human rights obligations [...] is that they are specifically formulated in terms of the right s of individuals, whereas, for instance, international environmental instruments speak of the obligations of States. By contrast, international law rules relating to the treatment of aliens in the field of diplomatic protection were deliberately articulat ed as involving the rights of States , as the Permanent Court stressed in Mavrommatis Palestine ConcessionsP Some aspects of the protection of human rights do not tally with the institution of diplomatic protection as developed with regard to the treatment of aliens. It may be sufficient to point to one or two features of the rules of international law concerning human rights. As damage caused by the infringement of these rights is inflicted to the individual, reparation only makes sense if it is given , directl y or indire ctly, to the individual concerned," Moreover, a settlement reached between the national and the responsible States would not depriv e the individual of any remedy available to him or her at the international level. Thu s, for example, if in the Russian debt case the French creditors' human rights were infringed, the settlement between the Fren ch and Russian Governments would not deprive the holders of the bond s from applying to the European Court of Human Rights. Should one nevertheless wish to use the term "diplomatic protection" with regard to the protection of human rights, it would be necessary to specify the essential elements distinguishing protection in this field from those pertaining to the case of breaches of obligations concerning alien s. It would be certainly clearer if one followed the lead given by the International Court of Justice in the Barcelona Traction judgment' ? and refrained from using the term "diplomatic protection" when a State makes a claim for the protection of human rights. 20

J. Crawford, 'Third report on State responsibility ' [supra note 12) at 39 (para. 89).

21

K. Doehring, 'Handelt sich bei einem Recht, das durch diplomat ischen Schutz eingefordert wird , urn ein solches, das dem die Protektion ausiibenden Staat zusteht, oder geht es urn die Erzwin gung von Rechten des betroffenen Individuurns?', in G. Ress and T. Stein (eds.), Der diplomatische Schutz im Volker- und Europarecht (1996 ) 13 at 19, held that, should compensation be given to the national State, international law would require the State to pay the individual the sum received.

22

Supra.

18

INTER-STATE RESPONSIBILITY FOR COMPLIANCE WITH HUMAN RIGHTS OBLIGATIONS Louis Henkin

In these pages I reflect on an aspect of contemporary international human rights law that has not been sufficiently addressed - the responsibility of states under international law to ensure respect for human rights by other states. I dedicate these reflections to a distingu ished scholar, who is also a friend .

I. INTRODUCTION In my view, human rights obligations and respon sibilities have been too narrowly conceived. Of course, every state party to any of the principal international human rights conventions is legally bound to respect the agreed rights of persons who are subject to its own jurisdiction; in my view, every state party has the right, and has also assumed responsibility, to seek compliance by other states for their undertakings under such treaties . In addition : Every state is obligated to respect the rights of human beings protected by the principles of customary international law. In my view, every state is responsible also to seek compliance by all other states with their obligations under the customary international law of human rights. Like other internat ional legal obligations, human rights law and obligations result largely from treaties and custom. I Like other international law, human rights

I

A third reco gnized "source" of international law, "gen eral principles", has not figured prominently in the development of human rights law. On the "sources" of international law, see Article 38 of the Statute of the International Court of Just ice . And see Restatement of the Law (Third) of Foreign Relations Law of the United States 702, Comment I (herea fter Restatement) .

LiC, Vohrah et al. (eds.), Man 's Inhuman ity to Man, 383-398 ©200 3 Kluwer Law International. Printed in the Netherlands.

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law creates obligations between (or among) states, though the subjects of these obligations, and their true beneficiaries, are individual human beings.vThe obligations and the responsibilities of states parties pursuant to international human rights agreements, and those of all states under customary human rights law, are no different from, and surely no less than, those resulting from multilateral treaties and customary law generally. States parties to human rights treaties have rights and obligations under those agreements similar to those which states have under treaties generally, unless otherwise clearly indicated. If a particular human rights treaty provides for special rights, obligations, remedies, or responsibilities, those - unless otherwise indicated - are in addition to, not instead of, those that inure to states parties pursuant to the law of treaties. My particular concerns here are the principal multilateral human rights covenants and conventions,' and the principles of customary law that have established obligations for all states to respect and to ensure defined human rights .' In their principal purpose, international human rights treaties include undertakings by every state party to respect and to ensure rights of persons subject to their jurisdiction, and to provide remedies for any violations." Human rights treaties sometimes also create institutions, notably a "treaty body," and establish procedures to implement the underlying human rights undertakings. By such treaty provisions , states parties commonly assume obligations to join in establishing and maintaining these institutions and to comply with their institutional and procedural requirements."

2

These obligations, I have suggested, seek to promote "human values", as distinguished from "state values". See Henkin, International Law: Politics and Values (1995) Chapters X-XII.

3

In particular: The International Covenant on Civil and Political Rights (ICCPR) ; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Prevention and Punishment of the Crime of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) ; the Convention on The Elimination of all Forms of Discrimination Against Women (CEDAW); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAD; the Convention on the Rights of the Child .

4

See Restatement 702, and in note 31 infra. Some ofthe principles of customary human rights law have acquired the character of ius cogens . See Restatement 702, Comment n.

5

E.g., ICCPR, Article 2, as discussed infra.

6

See, e.g., ICCPR, Part IV, as discussed infra. The Covenant on Economic, Social and Cultural Rights did not establish a treaty body, but experience with the Human Rights Committee established by the Civil and Political Rights Covenant led to a Committee on Economic, Social and Cultural Rights, established pursuant to a resolution of the Economic and Social

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Beyond debate, every state is required , in law, to carry out its international undertakings to respect and ensure the human rights of persons subject to its jurisdiction. In my view, states parties to international human rights agreements are entitled, in law, to require of every other state party that it fulfill its obligations under the treaty to respect and ensure the specified rights of persons subject to its jurisdiction. Moreover, every state party is legally obligated to take the necessary steps, and to cooperate with other states parties , to establish and maintain any agreed treaty body. And every state party is entitled, in law, to require of every other state party that it do what is necessary and cooperate to establish and maintain the indicated treaty body. Treaties apart, every state is required, in law, to respect and ensure the rights of individuals mandated by customary law. And every state is entitled , in law, to require of every other state that it comply with the human rights obligations of all states under customary law,? States have the right to respond to, and to take appropriate remedial steps against, violation s of human rights obligations whether these are established by treaty or by customary law;"and, I suggest, states that are enti-

Council of the United Nations General Assembly. ECOSOC Res. 1985/17. The Economic , Social and Cultural Rights Committee was given responsibilities very similar to those of the Human Rights Committee but those derive from the ECOSOC resolution , and are not obligations assumed by the treaty parties. See Human Rights (Henkin , Neuman, Orentlicher, and Leebron , eds 1999) pp. 515-519 . 7

See discussion infra.

s 1do not consider here the permissibility of "humanitarian intervention" by force in order to address violations of human rights in another state. See generally International Law, Cases and Materials (Damrosch, Henkin , Pugh, Schachter, and Smit, 4th ed. 2(01), (hereafter Damrosch et al.) chapter 12; Henkin , 'Humanitarian Intervention' , in Human Rights: An Agendafor the Next Century (Henkin and Hargrove eds 1994) at 383. See also, Schachter, International Law in Theory and Practice (1991) 117-119; Henkin, International Law, Politics and Values (1995) c. VIII; Essays by Verwey and Brownlie, in The Current Legal Regulation ofthe Use of Force (A. Cassese ed. 1986), at 57 and 491. Also, a recent collection of essays on the NATO intervention in Kosovo in 1999, 93 AJIL 824 et seq. (1999) and, on the same topic, A. Cassese , 'Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Communit y?' 10 European Journal of Internati onal Law 23 (1999) . States have also, indirectly, and in effect, assumed other legal obligations and responsibilities, in different contexts , which support measures designed to secure respect for human rights by all states, or to remedy human rights violations . For extraordinary examples, under the Charter of the United Nations, members of the United Nations are legally obligated to respond to decision s of the Security Council pursuant to Chapter VII of the Charter, when the Council has determined that human rights violation s threaten international peace and

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tied to seek compliance by, and to pursue remedies against other states , have a responsibility (if not a legal obligation) to do so. Under some multilateral human rights treaties , notably the regional human rights conventions of Europe and the Americas, and the African Charter," the right of states to act against violations by other states is clear and explicit. For example, the European Convention, in its original form, set up a commission and a court, both of them under the ultimate supervision of the Committee of Ministers and the Council of Europe (in which all states parties to the Convention were represented). The European Convention, in addition to providing for complaints to the Commission by or on behalf of alleged victims, declared that "Any High Contracting Party may refer to the Commission ... any alleged breach of the provisions of the Convention by another High Contracting Party".10 And a "High Contracting Party" that referred a case to the Commission could later bring the case to the European Court . I I The Amendment to the Convention (by Protocol II), which aboli shed the Commission and expanded the Court, provides that "Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols by another High Contracting Party"." Under the American Convention on Human Rights, both the Inter-American Commission and the Inter-American Court have jurisdiction over case s brought by states parties against other states parties. States parties may bring complaints to the Inter-American Commission of violations by other states parties , and these complaints may ultimately be referred to the Court for consideration."

security. States also attend to recommendations, whether by the Security Councilor by the United Nations General Assembly, of measures to meet human rights violations by other states. 9

10

11

12

13

European Convention for the Protection of Human Rights and Fundamental Freedoms, entered 3 September 1953; American Convention on Human Rights, entered into force 18 July 1978; African Charter of Human and Peoples ' Rights, entered into force 21 October 1986. Article 24, European Convent ion. Ibid. Article 48(c). A high contracting party whose national was alleged to be a victim could also bring a case to the Court . (Article 48 (bj),

Article 33 of the European Convention, as amended by Protocol II . Article 45 of the American Convention provides that a state may agree to the jurisdiction of the Inter-American Commission over complaints of violation of the Convention by other states parties. After the consideration of such complaints by the Commission , the Inter-American Court may be seized by way of a referral by the Commis sion or by one of the states parties (Article 61). See also Article 62 of the Convention, which provides that a state party

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The African Charter established an African Commission on Human and Peoples' Rights. The Charter provides that "if a state party to the present Charter considers that another state party has violated the provisions of the Charter, it may refer the matter directly to the Commission ... " .14 A protocol to the African Charter to establish an African Court of Human Rights provides, in Article 5, that cases may be submitted to the Court by the state party which has lodged a complaint with the Commission, or by the state party against which the complaint has been lodged at the Cornmission ." Under these regional conventions, jurisdiction over a complaint by a state party that another state party is violating the relevant treaty has been subjected to safeguards , discouragements and obstacles, presumably designed to assure reciprocity and to mitigate political tension between the states involved; but clearly states have the right to bring proceedings against other states, and such proceedings have been brought, but rarely. 16 The right of states to monitor each other is clear in law, even if it has not been frequently exercised in fact.

II. INTER-STATE MEASURES UNDER THE PRINCIPAL INTERNATIONAL CONVENTIONS By the principal international conventions established under United Nations auspices, the right of a state party to monitor and to seek compliance by other states is less explicit but it is nonetheless clear. The International Covenant on Civil and Political Rights and the principal human rights conventions established under United Nations auspices differ in

may recognize the binding jurisdiction of the Court on all matters relating to the interpretation or application of the Convention, without the need for a special agreement. 14

15

16

Article 49 of the African Charter. See generally Ankumah , The African Commission on Human and Peoples' Rights: Practices and Procedures (1996) . Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights, OAUfLEGIMINIAFCHPRlPROT.1 rev.2 (1997). The Commission may also refer a case to the Court . See Naldi and Magliveras , 'Reinforcing the African System of Human Rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights', 16 Netherlands Quarterly of Human Rights , 431 (1998) .

E.g., Ireland v. United Kingdom, 25 Eur.Ct.H.R. (Ser. A), 2 E.H.R.R. 25 (1978), confirming a report by the European Commission.

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important respects, but they have much in common. They are multilateral treaties among states in which each state party assumes international obligations to respect and ensure enumerated rights of individuals subject to its jurisdiction. Each of these treaties also establishes a "treaty body" - a committee of independent experts elected by the treaty parties - and states parties agree to report to that treaty body on their compliance with the treaty.'? There are provisions also, optional in some of the treaties, for bringing to the committee disputes between state parties as to the interpretation or application of the treaty. Consider, as an example, the International Covenant on Civil and Political Rights. Article 2 of that treaty requires every state party to respect and ensure the rights, set forth in Part III of the Covenant," of persons subject to its jurisdiction;'? each state has an obligation also to provide the individual with remedies for any violation of any right." The state's obligations under Article 2 inure to the benefit of individual human beings - the persons subject to its jurisdiction. Article 2 does not explicitly declare that the obligations of that Article run to the other states parties (for the benefit of individuals), but the Covenant clearly implies reciprocal obligations between state parties to carry out their treaty undertakings."

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19

20 21

The treaty bodies are provided staff and facilities by the United Nations . States parties are obligated also to respect the rights of peoples to self-determination and "economic" self-determination (Part 1). That Part was added late during the drafting of the Covenant and is not included among the obligations to respect and ensure the rights of individuals under Article 2. But Part I contains its own undertaking "to promote the realization of the right of self-determination and to respect that right in conformity with the provisions of the Charter of the United Nations ." Article 2 refers to individuals "within its territory and subject to its jurisdiction." It is accepted that the obligation should be read as referring to individuals "within its territory or subject to its jurisdiction." See Buergenthal, 'To Respect and to Ensure ' , in The International Bill of Rights, (Henkin ed. 1981), p. 74. Article 2(3) ICCPR .

It is relevant that all those obligations are set forth in a treaty - an international agreement among states - not in a unilateral declaration by any state, or in a series of unilateral state declarations. The character of the Covenant as a treaty between states and the responsibility of every state party for compliance by other state parties is also reflected in article 4 of the Covenant permitting derogation from some rights in time of national emergency. Article 4 (3) provides: "Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated

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That becomes clear from Article 41. By that provision, a state party may subject itself to complaint by another state party (on a reciprocal basis) before the Human Rights Committee, the treaty body to be established pursuant to the Covenant, that the accused state is not complying with the obligations under the Covenant; and an elaborate procedure is established for resolving such a complaint. Clearly, this procedural provision implies, and builds on the implication, that the underlying obligation of a state party to respect and ensure the human rights in question is an obligation to other states parties. The character of the Covenant as a treaty, the history of the years -long process of converting the Universal Declaration of Human Rights from declaration to treaties , and the provisions of Article 41, confirm that the Covenant establishes reciprocal obligations between states (in addition to the obligation by each state party to individual human beings to respect their rights and to provide them remedies). But states parties have not acted on that basis . Indeed, they appear not to have assumed any responsibility to assure compliance by other states partie s - for example, by invoking the authority granted to the Human Rights Committee under Article 41 of the Covenant. As of January 2001, 47 states have declared their submission to that procedure, but no state has brought any such complaint against any other state party. The failure to recognize, and to accept and act upon, the reciprocal character of Covenant obligations is reflected also in how states interpret and respond to other undertakings in the Covenant. Under Article 40, states are required to report "on the measures they have adopted which give effect to the right s recognized herein and on the progress made in the enjoyment of those rights". But no state has reported on compliance by other states parties , on measures those states have adopted to give effect to the Covenant rights ; or about efforts - by the reporting state or by others of which the reporting state is aware - to induce such compliance, or about progress in the enjoyment of rights in the jurisdiction of other states parties. Nor has any state party to the Covenant recognized the reciprocal character of treaty obligations by bringing a proceeding against another state party before the International Court of Justice. That an issue as to the interpretation or the application of provisions of a human rights convention may constitute a legal dispute between states partie s is clearly implied in those human rights conventions that

andof thereasons bywhich it was actuated. A further communicationshall bemade, through the same intermediary, on thedate on which it terminates such derogation". Thereports of thederogating states areto allotherstate parties; theUnited Nations Secretary-General is merely the intermediary.

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expressly include an "ICJ clause". The Covenant does not include an explicit "ICJ clause" comparable to those found in many treaties , including several other human rights conventions.> Such a provision gives any state party to the convention the right to bring a complaint before the International Court of Justice charging that another party is not carrying out its obligations under that treaty. Clearly, then, those conventions assume reciprocal obligations between states parties to respect the rights of individuals covered by the convention. But the Covenant too implies reciprocal obligation between states parties, which may properly come to the International Court of Justice. Failure to include an "ICJ clause" in the Covenant, in my view, was not intended to deny an underlying reciprocal obligation to respect the rights indicated. And, as in respect of disputes arising under treaties generally, a state party to the Covenant, that has also declared under "the optional clause" of the Statute of the International Court of Justice, may institute proceedings against another state party that has declared under that provision." I know no evidence that the inclusion in the Covenant of Article 41 intended to substitute the Human Rights Committee for the International Court of Justice and to foreclose resort to that Court."

22

23 24

Convention on the Prevention and Punishment of the Crime of Genocide, Art. IX. (This provision has recently been invoked in cases brought to the ICJ alleging the commission of genocide in Bosnia and Herzegovina and in Croatia . See Application of the Republic of Bosnia and Herzegov ina, 20 Mar. 1993; (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), and Application of the Republic of Croatia, 2 July 1999, (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia)) , at .) See also CERD, Article 22; CEDAW, Article 29; CAT, Article 30; Convention relating to the Status of Refugees, Article 38. For example , Article 22 of CERD provide s: "Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expres sly provided for in this Convention, shall, at the request of any of the parties to the dispute , be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement". See Article 36 (2) of the ICJ Statute . CERD provides, in Article II , that: "If a State Party considers that another State Party is not giving effect to the provisions of the Convention , it may bring the matter to the attention of the Committee". This provision is in addition to the ICJ clause contained in Article 22, indicating the intention of the drafters of the Convention that the treaty body and the International Court of Justice might operate in parallel.

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There are also reciprocal obligations among state parties with regard to the "treaty bodies" established in the International Covenant and under analogou s parts of human rights convention s. Consider, for example, Part IV of the Covenant. That Part is not couched in terms of state obligations. But the preamble to the Covenant begins "The State Parties to the Present Covenant", and concludes "Agree upon thc following article s" . The article s agreed upon clearly refer to all that follows, including all of Part IV. Part IV of the Covenant provides, inter alia: "There shall be established a Human Rights Committee". 25 States parties have thereby assumed obligations - to each other - to fulfill their respective roles in doing what is necessary to establish the Committee, in accordance with Article s 28 et seq. I have noted Article s 41 and 42 of the International Covenant. A declaration under Article 41 recognizing the competence of the Committee to consider a complaint by a state party that another state party is not complying with the Covenant, makes clear that there is an underlying obligation by each state party to all other state parties. Article 42, which provides for an ad hoc Conciliation Commission if a matter is referred to the Committ ee under Article 41, confirms that a complaint under Article 41 engend ers a dispute between the complaining state and the accused state. Other provisions of Part IV imply incidental reciproc al obligations among states parties. For example, Article 35 provides that the members of the Committee shall "with the approval of the General Assembly of the United Nations receive emoluments . .." . As membe rs ofthe United Nations General Assembl y, then, states parties to the Covenant would seem to have a special obligation to vote for such emoluments, and to support other measures to maintain the Committee, for example, the facilities, privileges, and immunities contemplated in Article 43. States parties may also have a special obligation to monitor and assure the various responsibilities imposed by Part IV on the United Nations Secretary-G eneral.l" There are other intimations of reciprocal state party obligations under Part IV of the Covenant. For example , Article 40 (4) requires the Committe e to transmit its reports (on its consideration of state reports) to all states parties, not to the reporting state alone. And "the States Parties" - all states parties - "may submit to the Comm ittee observations on any comments" - i.e., comments on reports by other states partie s that may be made by the Committee."

25

I have been a member of the Human Rights Committee since my election in fall 1999, for a term scheduled to end in December 2002. The views I express here are, of course, my own.

26

See, for example, Articles 30, 33, 34 and 36.

27

Article 40(5) ICCPR . Other states parties are involved, and maintain a continuing responsi-

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Article 40 suggests an additional avenue for asserting reciprocal state responsibilities for compliance. As I have noted, by that Article, state parties undertake to submit reports for consideration by the Committee on the measures they have adopted which give effect to the rights recognized in the Covenant and on the progres s made in the enjoyment of those rights. The obligation of states to report on compliance, and the Committee's examination of such reports , are recognized as the Covenant's principal inducements for states to comply. It has been commonly assumed that the obligation in Article 40 require s a state to report only on its own compliance with Article 2 of the Covenant, but there is no compelling indication that the report required must deal only with its own compliance, and only in respect of rights of persons subject to its own jurisdiction. Would it be inappropriate - and undesirable - for a state party to report on compliance by other states, or on the efforts of the reporting state to promote compliance in other states generally, or in some other state? Would it be inappropriate for the Human Rights Committee to inquire into measures taken by State Party X to induce respect for rights by, and within the juri sdiction of, State Party Y? There seems little reason to doubt that a state party to a human rights treaty such as the International Covenant is entitled to concern itself with compliance by other states parties. I see no reason to infer that such concern can be expressed only in ways explicitly provided in Part IV of the Covenant and only in respect of rights within the j urisdiction of the reporting state party."

bility, at various stages, e.g., considering the acceptability of reservations (cf. General Comment 24) in the preambular reference to "the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms;" in the right to be informed of declarations of emergency and of derogations under Article 4 of ICCPR, and of the termination of derogation . Compare the rights, responsibilities and obligations of states parties under the International Covenant on Economic, Social and Cultural Rights, e.g., Art. 23; CERD Preamble, Articles 9, 11, 22; CEDAW Article 29; CAT, Articles 19,21 ,30; CRC, Article 44. Compare also Articles 55 and 56 of the United Nations Charter. See note 33 inf ra. 28

This appears to be confirmed also by the terms of Article 44 of the Covenant. That Article states that the provisions for the implementation of the Covenant "shall apply without prejudice to the procedure s prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them". That Article emphasizes that the specific terms of the Covenant were not intended to exclude the application of international law, and the international law of treaties, generally. The reciprocal rights and obligations of states parties to the ICCPR

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Other human rights conventions reflect the same legal assumptions by providing similar mechanisms for ensuring compliance by the states parties, and thus lead to the same conclu sions. Under some conventions such as the Convention on the Elimination of Racial Discrimination, a state party can charge that another state party is violating obligations under the convention.s? The Convention against Torture establishes a Committee to receive reports from the states parties about their measures to implement the Convention, and these reports are circulated to all states parties." In addition , under Article 20 of the Convention, the Committee can receive information "which appears to it to contain well-founded indications that torture is being systematically practiced in the territory of a State Party" and can enter a dialogue with the state party concerned about such information. Thus, each state party to the Convention can provide information to the Committee concerning violations by other states parties of their substantive obligations. (The Torture Convention, in Article 21, also provides a procedure for making state to state complaints similar to that found in Article 41 of the International Covenant).

III. GENERAL RESPONSIBILITY FOR COMPLIANCE WITH THE CUSTOMARY LAW OF HUMAN RIGHTS I have discussed the responsibility of every state party to a human rights treaty for compliance by other states parties. The international law of human rights includes also a growing corpus of customary human right s law, some of it, at least, even having the character of ius cogens" The customary law of human rights does not

are confirmed in related agreements such as the Optional Protocol to the Covenant by which states agree to be subject to complaints before the Human Rights Committee from victims . The Protocol adds a procedure to the Covenant; it does not modify the underlying obligations of the states parties under the Covenant itself. The Human Right s Committee has held failure by a state party to respect the Committee's order for interim measure s to be a violation of the Protocol. See Piandiong v. The Philippines. Communication No. 86911999. 29

Article II CERD. See footnote 24 supra.

30

Article 19 CAT.

31

The Restatement, Section 702, identifies seven principles of the international law of human rights (as of 1987, the date of publication) but suggests that the list may not be complete and is not closed. See ibid. Comment a. Comment n declare s six of the principle s identified as customary human right s law to have the character of ius cogens.

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directly involve the interests of any particular state and, as regards violation by a state of the human rights of its own inhabitants, generally no other state is directly or particularly affected. That a person whose human rights are violated is a national of another state may encourage that state to intercede but, unlike the traditional customary law as to international justice for foreign nationals, the customary law of human rights does not distinguish between rights of nationals and those of non-nationals, or of persons of particular nationality. The customary law of human rights creates obligations erga omnes, and every state is entitled to seek compliance by other states."

IV. STATE RIGHTS AND STATE RESPONSIBILITIES

In sum, every state party to each human rights treaty has the right, in law, to seek compliance by any other state party with that state's treaty obligations to respect and ensure the rights of persons subject to its jurisdiction. A state party can resort to remedies that are explicitly provided, utilizing the bodies established in the treaty itself. There ought to be little doubt that a state party has the right to include a complaint of violation against another state party in its report to a treaty body. Or it can have recourse to the International Court of Justice where such recourse is provided in the convention, or under the "optional clause" of the Statute of the International Court of Justice. The right to make a complaint seems clear. But, is there not also a legal obligation to do so? Or, if there is no explicit language of obligation, is there not a responsibility implicit in the particular treaty, or in the obligation erga omnes under customary law? There is also the pledge by all states in Articles 55 and 56 of the United Nations Charter 'l" But no state appears to have considered it a legal

32

33

In the Barcelona Traction Case, the International Court of Justice declared : "In view of the importance of the rights involved , all States can be held to have a legal interest in their protection; they are obligations erga omnes". Case Concerning the Barcelona Traction , Light and Power Company, Limited (Spain v. Belgium), Second Phase , [1970] I.C.J. 4, 32, at para. 33. See Restatement 702, Comment 0 , and 703 , Comment b, and Reporters' Notes 3,4. Article 55 of the United Nations Charter declares that the United Nations shall promote, inter

alia, "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion". Article 56 states that "All Members pledge themselves to take jo int and separate action in cooperation with the Organization for the achievement of the purpo ses set forth in Article 55" .

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obligation to calI other states to account; hardly any state has in fact acted to calI other states to account , whether before the Human Rights Committee or another treaty body, or before the International Court of Justice. It may be too much to expect every state to intercede on behalf of every human being whose rights under customary law, or under a covenant or convention, are violated in any other country. But, in principle , every state is responsible for the condition of human rights of every human being in every country, at least in respect of gross violation s of those rights. Responsibility that is spread too wide may be diluted and ineffective. But if there is responsibility in principle, that principle should provide some impetus for ass uming respon sibility in fact, even if only selectively, if only for gross violations, if only in respect of violations in countries where a concerned state has other interests or has special reasons or means of exerting influence. We have seen manifestations of such responsibility during and in the aftermath of the Cold War, in the conversion of the Helsinki movement into the Organization for Security and Cooperation in Europe , in the inclusion of post-Communi st countries in Eastern and Central Europe in the Council of Europe, in the requirement of a decent human rights record as a condition of entry into the Europe an Union, in the universal response against apartheid, in the requirement of human rights improvements as a condition for important trade relations, e.g., with Communi st China or North Korea. In the quarter-c entury since the International Covenant on Civil and Political Rights has come into effect, state parties have reported on their compliance with their obligation "to respect and ensure" the rights of persons subject to their jurisdiction. They have not reported on, or otherwise addressed, compliance by other states parties with their obligations under that Article, or on whether they have carried out the undertakin gs implied in Part IV. States parties have gathered once a year to elect members of the Committee but have given little other indication of other responsibility under that part of the Covenant. In October 2000, during its 70th session, the Human Rights Committee initiatcd a step toward remind ing states parties of their reciprocal rights and responsibilities. The Committee convoked a meeting of states parties to discuss issues of common interest. Although on short notice and at less than convenient time and place, some 50 states (of the 144 states parties to the Covenant ) were represented at the meeting - a promising beginning for what may prove a new recognition of state responsibility and an important contribution to the implementation system."

34

The agenda included seven items:

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In the discussion that ensued, members of the Human Rights Committee and representatives of states parties, I believe, recognized the reciprocal obligations of states parties for compliance with all the provisions of the Covenant by all states parties. It is time for states parties to multilateral human rights treaties to recognize and to act on their responsibility, and for all states to recognize their mutual responsibility for compliance with international human rights norms generally. States parties to human rights treaties should be encouraged to include, in their reports to "treaty bodies", their efforts to induce compliance by other states with international human rights norms. Scrutiny, concern, and reporting on the condition of human rights in other countries should be the norm, not the exception ." And, despite increasing numbers of ratifications of human rights conventions, and a tendency to interpret conventions to include fundamentals of customary law, the customary international law of human rights continues to be a principal source of international human rights law, and it does not require or depend on ratifications. But customary law has no institutions with direct responsibility to implement it as law. Universal and continuing vigilance remain essential to induce compliance with human rights norms. Much depends on governments, on NGGs, on the media, to inform all human beings of their rights and to help them act upon them." Govern-

1. Current difficulties with, and possible solutions to, the country reporting process; 2. Minimizing duplication and overlap with other treaty bodies in reporting and consideration of reports ; Areas in which the Human Rights Committee can work together with the other treaty bodies to identify and achieve useful practical improvements to those systematic problems affecting all treaty bodies; 3. Current difficulties with, and possible solutions to, the communications procedures; 4. Need for better resourcing; 5. Other opportunities for dialogue between the Committee and States Parties; 6. Dialogue with States. 35

36

The annual country reports by the United States Department of State are not focused on and do not purport to address human rights obligations under international law and are sometimes charged with bias. Except in the extraordinary and infrequent circumstance where a violation of human rights becomes the responsibility of the United Nations Security Council because it threatens international peace and security. See note 8 above. Compare the penultimate paragraph ofPrincipie VII, of the Final Act of the Helsinki Conference on Security and Co-operation in Europe, 1975.

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ments have the legal right to attend to the condition of human rights in other countries; in my view, they have the duty and the responsibility to do so. They have that responsibility, at least, by virtue of their pledge as a member of the United Nations to take "joint and separate action" to achieve "universal respect for, and observance of, human rights and fundamental freedoms" .J7 Treaty parties have a particular responsibility by virtue of their participation in the human rights network and in the international state system of the Rule of Law. Compliance with the international law of human rights is becoming , slowly but increasingly, recognized as a universal concern. Every human being's rights now have a claim to international responsibility and protection . The extent of human rights that are enjoyed by individual human beings under international law will depend on maintaining a human rights culture around the world, which depends in tum on the commitment and responsibility of governments, institutions, peoples , non-governmental organizations, and dedicated individuals. It depends on all of US. 38

37

38

See footnote 34 supra. Addre ssing the International Covenant on Civil and Political Rights in particular, Profes sor, now Judge, Rosalyn Higgins wrote: "there comes a critical moment in the life of successful internat ional instituti ons, a moment at which they can go forward or begin to disintegrate. And among all the generous words, I see dangers for the International Covenant on Civil and Political Rights . It would be bitterly ironic if, having won the battle to place human rights at the legitimate centre of international concern, the liberal democracies throwaway the fruits of that victory by a failure to recogniz e that, in large part, the integrity of the Covenant lies now in their own hands" . (In 'The United Nations: Some Questions of Integrity' , (1989) 52 MLR , pp. 1-21 at pp. 20-21). See my article in Realizing Human Rights: Moving From Inspiration to Impact (Powers and Allison eds 2000) at p. 3.

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LES EXCEPTIONS PRELIMINAIRES A LA LUMIERE DE LA JURISPRUDENCE DE LA COUR INTERNATIONALE DE JUSTICE (1994-2000) Geza Herczegh

I. NOMBRE GRANDISSANT DES EXCEPTIONS PRELIMINAIRES DEVANT LA COUR Parmi les arrets recents de la Cour, un grand nombre ont ete prononces sur des questions de competence et de recevabilite suscitee par les exceptions preliminaires des etats defendeurs. Au cours des sept dernieres annees, du Ier janvier 1994 au 31 decembre 2000 : - la Cour a rendu un avis consultatif, Ie 8 juillet 1996, sur la question de la Liceite de la menace ou de l 'emploi d'armes nucleaires sur requete de I' Assernblee generale des Nations Unies, et elle a refuse, ala meme date, de donner un avis consultatif sur une question analogue posee par I' Organisation rnondiale de la Sante (OMS). - un autre, Ie 29 avril 1999 sur Ie Differend relatif a limmunite de juridiction d'un rapporteur special de la Commission des droits de l'homme. Dans Ie cadre de sa fonction contentieuse, elle a juge les affaires suivantes : - l'affaire du Differend territorial (Jamahiriya arabe libyenne/Tchad), qui a fait I' objet de son arret du 3 fevricr 1994 ; - l'affaire relative au Projet Gabcikovo/Nagymaros (Hongr ie/Slovaquie), qui a fait l'objet de son arret du 25 septembre 1997 .

- I' affaire de I'lie Kasikili/Sedudu (BotswanalNamibie) faisant I' objet de I' arret du 13 decembre 1999

L.c. Vohrah et al. (eds.), Man's Inhuman ity to Man , 399-422 ©2003 Kluwer Law International. Printed in the Netherlands .

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Ces affaires ont ete soumises ala Cour par la notification d'un compromis conclu entre les Parties. Par ailleurs, la Cour a ecarte, par son ordonnance du 22 septembre 1995, la "Demande d' examen de la situation" que la Nouvelle-Zelande avait presente contre la France "au titre du paragraphe 63 de l'arret rendu par la Cour Ie 20 decembre 1974 dans l'affaire des Essais nucleaires (Nouvelle-Zelande c. France)". Concernant les demandes en indication de mesures conservatoires, la Cour a indique, par une ordonnance du 15 mars 1996, des mesures conservatoires en l' affaire de la Frontiere terrestre et maritime entre le Cameroun et le Nigeria (Cameroun c. Nigeria) . Elle a fait de rneme, par son ordonnance du 9 avril 1998, en l' affaire de l' Application de la Convention de Vienne sur les relations consulaires (Paraguay c. Etats-Unis d 'Amerique) (dite "affaire Breard"), puis par son ordonnance du 3 mars 2000 dans l'affaire dite LaGrand concernant l'application de la merne convention (Allemagne c. Etats-Unis d'Ameriquey . La Yougoslavie a presente des requetes contre dix pays de l'OTAN "pour violations de l' obligation de ne pas recourir a I' emploi de la force" , en demandant en meme temps ala Cour d' indiquer des mesures conservatoires. Les Etats defendeurs ont presente des exceptions preliminaires. La Cour par ses ordonnances du 2 juin 1999 a rejete les demandes de la Yougoslavie concernant l'indication des mesures conservatoires, faute d'une competence prima facie pour connaitre ces affaires. Dans deux cas (Btats-Unis d' Amerique et Espagne), la Cour a constate qu'elle n'a manifestement pas de competence et elle les a rayes de son role general. Les huit autres affaires sont restees inscrites au role de la Cour, en attendant que celle-ci se prononce sur les exceptions preliminaires presentees par les Btats defendeurs, a savoir l' Allemagne, la Belgique, Ie Canada, la France, l'Italie, les Pays-Bas, Ie Portugal et Ie Royaume-Uni. Au ler janvier 2001 , date a laquelle cet article a ete acheve, la Cour n'avait pas encore rendu sa decision sur ces exceptions preliminaires. Durant la periode 1994-2000, la Cour s'est prononcee pas moins de dix fois sur des questions de competence ou de recevabilite, com me suite au depot d' exceptions preliminaires. - Arrets du Ier juillet 1994 et du 15 fevrier 1995 dans l' affaire de la Delimitation maritime et des questions territoriales entre Qatar et Bahrein. (En l' espece, apres que Bahrein eut con teste la base de competence invoquee par Qatar, il avait ete convenu qu'il serait statue separement sur les questions de competence et de recevabilite.) C'est apres ces deux arrets que la Cour a commence a examiner Ie fond du differend.

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- Arret du 30 juin 1995 en l' affaire relative au Timor oriental (Portu gal c. Australie). (En l' espece , apres que l'Australi e, dan s son contre-rnemoire, eut souleve des questions relatives a la competence et a la rece vabilite, les parties sont co nvenues que ces questions etaient inextricablement liees au fond et devra ient etre tranchees da ns Ie cadre de l'examen de celui-ci.)

- Arret du 11 ju illet 1996 dan s I' affaire relative a I'Application de la convention pour la prevention et la repression du crime de genoci de (BosnieHe rzegovine c. Yougoslavie). (La Yougo slavie a presente pas moin s de sept exce ptions preliminaire s dont ce rtaines con cemaient la competence de la Cour , d'autres la recevabilite de la requete, La quatrieme exception de la Yougoslavie a ete retiree en cour s de procedure .) - Arret du 12 decernbre 1996 dans I' affaire des Plates-form es petrolieres (Republique islamique d '/ran c. Etats-Unis d 'Am erique). (Lcs Etats-Unis ont presente une exce ption prelirninaire d'incornpetence. ).

- Arret du 27 fevrier 1998 dan s I'affaire rela tive a des Questions d ' interpretation et d' appli cation de la conve ntion de Montreal de 1971 resultant de l' incident aerien de Lockerbi e (Jamahiriya arabe libyenne c. Royaum e-Uni). (Le Royaum e-Uni a formell ement souleve deu x exce ptions prelirnin aires ; I'une relative a l' Incompetence de la Cour, et I'autre a l'irrecevabilite de la requete ; il a ega lernent fait valoir une exc epti on tend ant a ce que la Cour prononce un non-lieu.)

- Arret du 27 fevrier 1998 dans l' affaire relative a des Que stion s dinterpretation et d' application de la conve ntion de Montreal de 1971 resultant de l'i ncide nt aerien de Lockerbie (Jamahiriya arabe libyenn e c. Etats -Unis d'A merique) (Les Etats-Unis ont present e trois exc eptions prelirnin aires, concernant res pectivement I'mcompetence de la Co ur, l'Irrecevabilite de la requ ete et Ie non-li eu .) - Arre t du II juin 1998 dans I'affaire de la Frontiere terrestre et maritime entre Ie Cameroun et le Nigeria (Camero un c. Nigeria). (Le Nigeria a souleve huit exceptions prelirninaires dont certaines concernaient la comp etence et d' autres la recevabilite), II est a noter que la Cour a rendu un arret, Ie 25 mars 1999 sur la Demande en interp retation de I'arret du / / juin /998 en l'affaire de la Frontiere terrestre et maritime entre Ie Cameroun et le Nigeria (Came roun c. Nigeria), exceptions preliminaires. - Arret du 4 decernbre 1998 dans l'affaire de la Competence en mati ere de pecheries (Espagne c. Canada). En l'espece, apres que Ie Canada eut exprime la positi on se lo n laquelle la Co ur etait man ifestement dep ourvue de

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Chapter19 competence, il avait ete convenu qu'il serait statue separernent sur la question de la competence de la Cour. - Arret du 21 juin 2000 dans I'affaire de l'Incident aerien du 10 aout 1999 (Pakistan c. lnde) . Le Pakistan - pour etablir la competence de la Cours' est refere a. l' article 17 de l' Acte general de 1928, les declarations des Parties faites en vertu du paragraphe 2 de l' article 36 du Statut et Ie paragraphe premier du meme article. L'Inde a conteste les trois. Nous pouvons done parler de trois exceptions preliminaires, toutes a. cause du defaut de consentement.

La remarque a etc faite il y a plus de trente ans deja, a. propos des exceptions preliminaires, que "leur champ d'application s'[etait] progressivement etendu" et que "la frequence de leur invocation [allait] grandissante".' La pratique recente des Etats vis-a-vis de la Cour confirme la rneme ten dance, mais plus accentuee qu 'autrefois. Dans toutes les affaires introduites par voie de requete, la Cour a dfi se prononcer d'abord sur des exceptions avancees par les Etats defendeurs, ayant pour but d' empecher que la Cour se prononce sur Ie fond. On les considere comme "preliminaires" dans la mesure ou la Cour doit statuer sur ces exceptions in limine litis, c'est-a-dire avant d'examiner Ie fond de I'affaire. Cette phase preliminaire constitue en realite "une affaire dans l'affaire" - comme l'a caracterisee Ie luge Bedjaoui,? Ce sont les exceptions preliminaires sou levees - souvent en grand nombre - par les Etats defendeurs et les arrets rendus par la Cour a cet egard que nous allons examiner dans les pages suivantes. L' etendue modeste de cet article ne nous permet pas de developper des questions theoriques. Nous nous limiterons aux motifs invoques par les defendeurs et a. ceux sur lesquels la Cour a fonde ses decisions. Pour la meme raison nous avons renonce a. l'examen des opinions individuelles et dissidentes des Membres de la Cour.

I

2

Abi-Saab, G. : Les exceptions preliminaires dans la procedure de la Cour internationale. Paris , Pedone 1967, p. 15. "This phase amounts in reality to a case within the case and goes through all the stages, whether written or oral, adversarial or deliberative, of proceedings on the merits, ending with a judgment on jurisdiction and perhaps admissibility." Bedjaoui, M. : The Manufacture of Judgments at the International Court of Justice . Pace Yearbook of International Law 1991, p.

34

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II . BASES JURIDIQUES

La procedure sur les exceptions preliminaires est reglee par un seul article du Reglement de la Cour, I'article 79. Le premier Reglement du predecesseur de la presente Cour, la Cour permanente de Justice intemationale, ne contenait aucune disposition sur les exceptions prelirninaires, mais leur problerne est apparu tres tot, a I'occasion de I'affaire des Con cessions Mavrommatis en Palestin e, et dan s celle de Certains interets allemands en Haute-Silesie polonaise. En 1926, lors de la premiere revision du Reglement, un article sur les exceptions, l' article 38, fut inclus, puis, en 1936, cette dispo sition fut modifiee et devint l' article 62 du Reglement. II fut repris sans changement par la cn en 1946, mais fut revise en 1972 pour devenir, en 1978, avec des modifications minimes, I'article 79. Son paragraphe premier se lisait comme suit : [tjoute exception a la competence de la Cour ou ala recevabilite de la requete ou toute autre exception sur laquelle Ie defendeur demande une deci sion avant que la procedure sur Ie fond se poursui ve doit etre presentee par ecrit dans Ie delai fixe pour Ie depot du contre-rnemoire. Toute exception soulevee par une partie autre que Ie defendeur doit etre deposee dans Ie delai fixe pour Ie depot de la premiere piece de procedure ernanant de cette partie.'

3

Ce para graphe a ete modifie et elargi par la Cour en 2000. Son nou veau texte formant trois para graphes separes a maintenant la teneur suiv ante :

" \. Toute exception a la competence de la Cour ou a la recevabilit e de la requete ou toute autre excepti on sur laquelle Ie defendeur demande une decision avant que la procedure sur le fond se pour suive doit eire presentee par ecrit de s que possible, et au plus tard trois mois apres Ie depot du mem oire. Toute exception soulevee par une part ie autre que Ie defendeur doit etre depo see dan s Ie delai fixe pour Ie depot de la premi ere piece de procedure ernanant de cette parti e.

2. Nonobstant les dispo sition s du paragraph e I ci-de ssus, apres Ie depot de la requ ete et apre s consultation des parties lors d'une reunion avec le president, la Cour peut decider qu'il est statue separernent sur toute question de competence et de recevab ilite. 3. Lor sque la Cour en decide ain si, les parties depo sent toutes pieces de procedure relatives a la competenc e et a la recevab ilite dan s les delais fixes par la Cour et dan s l'ordre determine par celle-ci, nonobstant les dispositions de I' articl e 45 , para graphe I". Le texte des autre s paragraphes de I'article 79 reste inchan ge, L'article modifie sera en vigueur

acompter du Ier fevri er 200 \. Bien entendu toute affaire soumise ala Cour avant cette date ou toute pha se d'une telle affaire, restera regie par Ie Reglernent applicable avant Ie ler fevrier 200 \.

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Les exceptions preliminaires peuvent etre classees en trois categories, scion qu' elles concernent plus particulierement : a) la competence de la Cour; b) la recevabilite de la requete; et c) "toute autre exception" (cette expression n'est pas definie ni circonscrite de maniere plus precise par le Reglement). Distinguer les exceptions relatives a la competence de la Cour de celles ayant trait ala recevabilite de la requete pose souvent des problemes. L'Btat lui-rneme qui les souleve ne les distingue pas necessairement, ou tout au moins pas de maniere coherente. Les Btats presentent parfois une exception preliminaire portant tout a la fois sur la competence de la Cour et sur la recevabilite de la requete, Par exemple, Bahrein avait prie la Cour de dire et de juger "qu'elle n'a pas competence pour statuer sur le differend qui lui a ete soumis dans la requete deposee par Qatar". La Cour a considere cette conclusion comme concernant tant la competence que la recevabilite. Dans I' affaire du Timor orientaL, I' Australie a entre autres dernande a la Cour de "dire et juger qu' elle n' a pas competence pour statuer sur les demandes du Portugal ou que les demandes du Portugal sont irrecevables". Que peut-on entendre par la notion de "recevabilite des dernandes" Cela ne vise-t-il pas, en fin de compte la simple recevabilite de la requete ? N'insistons pas sur ce detail. Dans l' affaire de I' Application de La Convention sur le genocide, la pretention selon laquelle la guerre civile ravageant Ie territoire de la Bosnie-Herzegovine ne pouvait constituer un differend international, et tout specialement un diffcrend international au sens de I' article IX de la Convention sur Ie genocide, a ete presentee par la Yougoslavie d'abord comme une exception dirrecevabilite de la requete (premiere exception) , et plus tard comme une exception d'incompetence (cinquieme exception). La Cour a fait des lors observer que les deux exceptions etaient tres proches et, qu'en repondant a la cinquierne, elle avait du meme coup repondu ala premiere. La Cour a declare, il y a trente cinq ans, qu'elle ne juge pas necessaire "de determiner si [les exceptions] portent toutes sur la competence ou la recevabilite ou si elles sont fondees sur d'autres motifs".' Elle n'a pas modi fie son approche et elle n'a pas cherche a definir les criteres qui pouvaient distinguer les unes des autres dans les arrets qu'elle a prononces au cours de la periode 1994-2000, laissant ala litterature scientifique Ie soin de s'occuper d'une telle distinction. La Cour se

4

Cameroun septentrional, exceptions preliminaires, Cl.J. Recueill963, p. 27.

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limite aexaminer les exceptions telles qu' elles sont presentees et prend les decisions qu'elle juge appropriee s. Selon l'avant demier paragraphe de l'article 79 du Reglernent [l]a Cour, apres avoir entendu les parties, statue dans un arret par lequel elle retient I'exception, la rejette ou declare que cette exception n'a pas dans les circonstances de I' espece un caractere exclusivement preliminaire. Si la Cour rejette I'exception ou declare qu'elle n'a pas un caractere exclusivement prelim inaire, elle fixe les delais pour la suite de la procedure . Les dispositions procedurales en cause sont a placer dans le cadre du systeme etabli par Ie chapitre XIV de la Charte des Nation s Unies et le Statut de la Cour. La mission de la Cour est de regler conformement au droit intemationalles differends qui lui sont soumis. La competence de la Cour - comme le precise l'article 36 de son Statut - "s' etend a toutes les affaires que les parties lui soumettront, ainsi qu' a tous les cas specialement prevus dans la Charte des Nations Unies' ou dans les traites et conventions en vigueur .. . En cas de contestation sur Ie point de savoir si la Cour est competente, la Cour decide". La Cour a observe tout recemment "qu'etablir ou ne pas etablir sa competence n'est pas une question qui releve des parties; elle est du ressort de la Cour elle-meme" , en ajoutant qu'il n' y a pas de charge de la preuve en matiere de competenc e" ." De quels differend s s' agit-il ? Au sens admis dans la jurisprudence de la Cour, "un differend est un desaccord sur un point de droit ou de fait, un conflit, une opposition de theses juridiques ou d'interets" entre des parties. Cette definition, qui remonte a l'affaire des Concessions Mavrommatis en Palestine, a ete reprise et confirmee dans les arrets recents. L' existence du differend doit etre etablie objectivement. "II faut demontrer que la reclamation de I'une des partie s se heurtc a l'opposition manifeste de l'autre." La simple affirmation ne suffit pas aprouver son existence, comme Ie fait que I' existence d'un differend soit contestee par l'une des parties ne prouve pas son inexistence","

5

6

La Cour a observe dans I' affaire de /'Incident aerien du 10 aoia 1999 (Pakistan C. Inde) que "la Charte des Nation s Unies ne contient aucune clau se specifique conferant par elle-meme, juridiction obligatoire a la Cour". Voir Ie paragraphe 48 de I' arret du 21 juin 2000 .

Competence en matiere de pecheries (Espagne C. Canada), competence de la Cour , de l'arret du 4 decernbre 1998, paragraphes 37-38 .

7

8

Timor oriental (Portugal c. Australie), C.l.J. Recueill995. pp. 99-100 , par. 22. Plates-formes petrolieres (Republique islamique d'lran c. Etats-Unis d 'Amerique), C.l.J. Recueill996, p. 810 , par. 16.

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En ce qui concerne sa competence, Ie principe fondamental constamment applique par la Cour est qu ' elle "ne peut trancher un differend entre des Etats sans que ceux-ci aient consenti a sa juridiction" . Les bases de la competence de la Cour sont done I'existence d'un differend d'ordre juridique entre les parties et Ie consentement de celles-ci pour que Ie differend soit tranche par la Cour. Les exception s prelirninaires d'incompetence nient, ou bien I'exi stence d'un differend international d'ordre juridique, ou bien I'exi stence du con sentement des partiesou les deux a la fois.

III. COMPETENCE DE LA COUR : L'EXISTENCE D'UN DIFFEREND

La competence de la Cour dans une affaire peut etre contestee sous differents aspects : ratione personae, ratione materiae, et ratione tempori s. Ratione personae tout d'abord : rappelon s que dans les affaires contentieuses, l'acces a la Cour est reserve aux Etats, parties a son Statut .? Certains auteurs distinguent la competence general e et la competence speciale ratione personae - ce second aspect visant la question meme du consentement de I' Etat de se soumettre a la Cour. Ce consentement peut etre donne sous plusieurs formes (compromis, clause compromissoire dans des traites ou des convention s, clause facultative de juridiction obligatoire de I' article 36, paragraphe 2, du Statut, "fo rum prorogatum" ),10 et il est limite aux differends auxquel s les Etats sont parties. Cette limitation nous conduit a la question de la competence ratione materiae : Ie differend so u m is a la C our est-il du type ou de la categorie de ceux pour lesquels les parties ont consenti a sa juridiction ? Entin, Ie consentement peut etre limite dans Ie temps - ratione temporis. Les reserves ajoutees aux declarations d'acceptation de la clause facultative a la suite de I' affaire du Droit de passage sur territoire indien peuvent servir d' exemple.!'

9

10

II

a

Le Conseil de securite peut fixer les conditions d' acces la Cour aux Etats qui ne sont pas parties au Statut mais de tels cas ne sont pas produits pendant la periode examinee. Tous les Etats dem andeurs ou defend eur s etaient Membres del' Organisation des Nations Unies. Rosenne , Shabtai : The Law and Practice of the International Co urt, 1920 , 96 The Hague Nijhoff, 1997, vol. II, p. 685. Douze Etats ont suivi I' exemple du Royaume -Uni . La reserve britannique avait comm e objectif de contrer les effets d'une requ ete soumise a la Cour imrnediaternent apres Ie depot d'une declaration d'accept ation de la cla use facultative. (Voir Rosenne, op. cit. Vol. II, p. 799 .)

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En essayant de resumer les decisions de la Cour en matiere d ' exception s preliminaires, des co nsiderations pratiques nous menent a prendre co mme point de depart I' existence (ou la non-existence) de differends d' ordre juridique. En effet, cette question a pris progressivem ent un relief tout particulier dans les pieces ecrites des parties, dan s leurs interven tio ns orales, et partant , dans les arre ts de la Cour. Dans I'affaire Qatar C. Bahrein , les parties n' ont pas con teste I'existence d'un differend , mais etaient en desaccord quant aleur co nsentement aporter ce differend devant la Cour. La requete que Qatar a soumise a la Cou r ne comprenait que certains elements constitutifs de I' obje t du litige. C' est pou rquoi la Co ur, avant de se prononc er sur les questions de competence et de recevabilite soulevees par Bahrein , a decide, dans un premi er arre t co nsacre a ces questions, "de donn er aux Parties I' occasion de lui soumettre I' ense mble du differend tel qu ' il est circonscri t par le proces-verbal de 1990 et la formule bahrem ite, que toutes deux ont acce ptes" .'? Dans son seco nd arret sur les memes questions, elle a constate que "Qatar, par demarc he individuelle [... j, a soumis a la Cour "l'ense rnble du differend qui oppose Qatar et Bahrein". Cela lui a permi s de se prononcer sur sa co mpetence, ce sur quoi nous reviendrons plus bas. En ce qui co nce rne I' affaire relative au Timor orien tal, I' une des exce ptions de I' Austra lie consistait a soutenir qu'il n' existait pas veritablernent de differend entre ce pays et Ie Portugal. Elle a soutenu que le veritable defendeur etait l' Indonesie (qui a occ upe Ie Timor oriental) et qu' elle avait ete assignee en lieu et place de l' Indonesie. Cette argu mentation n' a pas convai ncu la Cour. So n arre t constate que les parties etaien t "en desaccord a la fois sur Ie droit et sur les faits , quant a savoir si I' Austra lie, en negociant , co ncl uant et com mencan t a exec uter Ie traite de 1988, alvait] vio le une obligation qu ' elle avai t vis-a-vis du Portugal en vertu du droit inte rnational". La Co ur a ecarte l' exception de I' Australie fondee sur I'a bsence d' un "veritable differend" en tre les parties et a co nclu a I' existence d' un differend entre I' Australie et Ie Portugal. Dan s I'affaire de I'Appl icat ion de la Convention su r Ie genocide, la premiere exce ption de la Yougoslavie alleguait que Ie fait merne d 'une guerre civile excluait I' existenc e d'un differend intern ational. L'argument avait ete presente d' abord en tant qu ' exception d' irrecevabilite, mais - co mme nous I' avons deja vu - a ete repris par la Yougoslavie dans une redaction legerement modifiee - a savoir qu' il n'existe aucun differend intern ational au sens de I' article IX de la Convention de 1948 sur Ie genoc ide - mais cette fois-c i co mme exce ption d'inco mpetence,

12

C.U . RecueiL 1994, p. 125, par. 38

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La Cour s'est penchee d'abord sur cette derniere et a rejete l'exception car, "conformement a une jurisprudence bien etablie" elle a constate que persistait une situation dans laquelle les points de vue des deux parties quant a I'execution ou a la non-execution de certaines obligations decoulant du traite etaient nettement opposes, et que du fait du rejet par la Yougoslavie des griefs formules ason encontre par la Bosnie-Herzegovine, il existait un differend d'ordre juridique entre elles, un differend, qui - selon la Cour - entrait dans les previsions de I' article IX de la Convention sur Ie genocide. De I'avis de la Cour, la Convention etait applicable sans consideration particuliere pour les circonstances liees au caractere interne ou international d'un conflit arme , Quelle que soit la nature du conftit , les obligations de prevention et de repression du crime de genocide demeurent identiques. La Yougoslavie a pretendu aussi (troisieme exception) que la Bosnie-Herzegovine, a cause des actes relatifs a son acces sion a l'rndependance, n'avait pas qualite pour devenir partie a la Convention et, - pour etre plus explicite, nous devons l'ajouter - n'etant pas partie a cette Convention, il ne pouvait surgir entre elle et la Yougoslavie un differend concernant I'interpretation ou l'application de la Convention. La Cour n'aurait done pas competence pour connaitre de l'affaire. La Cour a toutefois constate que la Bosnie-Herzegovine etait devenue Membre de I' Organisation des Nations Unies a la suite des decisions prises Ie 22 mai 1992, et que l' article XI de la Convention sur le genocide ouvrait celle-ci a tout Membre des Nations Unies. Des son admission au sein de I'Organisation, la BosnieHerzegovine pouvait donc deven ir partie a la Convention. Peu importaient des lors les circon stances dans lesquelle s elle avait accede a I'independance. L'exception a ete ecartee. L' exception aurait pu etre classec aussi sous la rubrique ratione personae, mais la critique de la Yougoslavie etait dirigee contre la Bosnie-Herzegovine en ce que celle-ci ne pouvait etre partie a la Convention de 1948, et non pas par manque de ius standi, concernant sa place dans I'ONU. C'est pourquoi nous la traitons ici. L'existence d'un differend d'ordre juridique justiciable a ete conteste dans I'affaire des Plates-formes petrolieres. Les Etats-Unis ont soutenu que la requete iran ienne etait sans aucun rapport avec le traite de 1955 que l'Iran avait invoque, et en consequence n'entrait pas dans les previsions du paragraphe 2 de l'article XXI contenant la clause de juridiction pertinente. Les Etats-Unis ont pretendu que les demandes de l'Iran soulevaient des questions relatives a l'emploi de la force qui n'entraient pas dans le champ d'application du traite de 1955. La Cour a ete toutefois d'avis qu'elle devait rechercher si les violations alleguees du traite en question entraient ou non dans les previsions de ce traite et si, par suite, Ie differend etait de ceux dont la Cour est competente pour connaitre ratione materiae. EUe a conclu que les questions relatives al'emploi de la force n'etaient pas exclues en

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tant que telles du champ d'application du traite de 1955 et elle a ecarte I'argumentation exposee sur ce point. Ensuite, apres avoir refuse de fonder sa competence sur certains articles du traite de 1955 invoques par l'Iran, elle a declare que Ie paragraphe I de l'article X, stipulant qu"'iI y aura liberte de commerce et de navigation entre les territoires des deux Hautes Parties contractantes", garantissait la liberte de commerce et que la destruction des plates-formes petrolieres etait susceptible de porter atteinte a cette liberte. II existait done entre les parties un differend quant a l'interpretation et a l'application du paragraphe I de l'article X, et ce differend tombait sous les previsions de la clause compromissoire du traite de 1955. En consequence, la Cour s'est declaree competente pour connaitre dudit differend, Dans les affaires "jumelles" dites de "Lockerbie" (Questions d'interpretation et d'application de la convention de Montreal de 1971 resultant de l'incident aerien de Lockerbie (Jamahiriya arabe libyenne c. Royaume-Uni) et (Jamahiriya arabe libyenne c. Etats-Unis d'Ameriqueh, les defendcurs contestaient la competence de la Cour en alleguant principalement que la Libye n' avait pas etabli , premierement quil existait un differend juridique entre les parties , et deuxiemement qu'un tel differend concernait I' interpretation ou I' application de la Convention de Montreal et entrait par suite dans les previsions du paragraphe I de l'article XIV contenant la clause compromissoire de cette convention. La Cour, apres avoir analyse les dispositions de la Convention de Montreal invoquees par Ie demandeur, est arrivee ala conclusion quil existait entre les parties non seulement un differend de nature generale, mais aussi un differend specifique qui concernait I'mterpretation et l'application de l'article 7 - lu conjointement avec les articles 5, 6, 8 de la Convention -ainsi qu'un differend concernant l'article 11. Conformement au paragraphe I de I' article 14, il appartenait a la Cour de trancher ces differends. Elle etait done competente pour en connaitre. Dans l'affaire de la Frontiere terrestre et maritime entre le Cameroun et le Nigeria (Cameroun c. Nigeria), Ie Cameroun a depose une requete au sujet d'un differend entre les deux Etats portant essentiellement sur la question de la souverainete sur la presqu'Ile de Bakassi . Puis - elargissant l'objet du differend par une requete additionnelle -Ie Cameroun a prie la Cour de preciscr definitivernent la frontiere separant Ie Nigeria du Cameroun sur toute sa longueur. Le Nigeria, pour sa part, pretendait (cinquieme exception preliminaire) qu'il n'existait pas de differend concernant la delimitation de la frontiere en tant que telle sur toute la longueur entre Ie tripoint dans Ie lac Tchad et la mer. La Cour a rejete cette exception. Bien que la Cour eut estime que l'etendue exacte du differend concernant la frontiere entre Ie Cameroun et Ie Nigeria ne pouvait etre determinee au moment du prononce de son arret, elle a constate qu'un "differend n'existait pas moins entre

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les deux parties, a tout Ie moins en ce qui concerne les bases juri diques de la frontiere", et "il appartenait a la Cour d'en connaitre". Dans I'affaire de la Competence en matiere de pecheries (Espagne c. Canada) I'existence d'un differend entre les parties n'etait pas contestee, mais celles-ci s' opposaient sur I'objet de leur differend. La question n' etait ici pas de savoir si Ie differend portait sur I'interpretation ou I'application d'une ou de plusieurs dispositions d'un traite ou d'une convention liant les parties, mais si Ie differend etait exclu ou non de la competence de la Cour par I'effet de I'une des reserves que Ie Canada avait ajoute a sa declaration d'acceptation de la juridiction de la Cour. Pour statuer sur I'exception d'incompetence soulevee par Ie Canada, la Cour a d' abord circonscrit Ie "veritable differend" et precise I' objet de la demande. "C'est I'un des attributs de sa fonction judiciaire" - a-t-elle precise - en citant des arrets precedents ou en s' y referant." Elle a conclu de la rnaniere suivante : Dans son essence, Ie differend entre les parties porte sur la question de savoir si ces actions [en relation avec l'arraisonnement du navire Estai] ont viole les droits que I'Espagne tient du droit international et s'ils exigent reparation." Dans to utes les affaires soumises ala Cour par une requete, Ie defendeur a presente des exceptions, et la majorite de ces exceptions touchait directement ou indirectement I'existence d'un differend au sens des dispositions du droit international invoquees par Ie requerant. L' examen de "I' ensemble du differend", du "vrai differend", de "l 'objet du differend" , a pris une place majeure dans les activites de la Cour. Le concept du differend d' ordre juridique, defini dans I' arret de I' affaire des Concessions Mavrommatis en Palestine, suivi et applique de maniere constante dans lajurisprudence recente, a permis a la Cour de s'acquitter des taches que lui a conferes son Statut. Dans toutes les affaires traitees durant les sept dernieres annees au niveau de la competence et de la recevabilite, la Cour a constate I'existence d'un differend d'ordre juridique entre les Parties. Les divergences concernant I'interpretation ou l'application des dispositions d'un traite ou d'une convention ont ete considerees comme suffisantes pour conclure a I'existence d'un differend,

13

14

Essais nucleaires (Australie C. France), C.I.J. Recueill974, p. 262, par. 29 ; Essais nucleaires (Nouvelle-Zelande C. France), C.U. Recueill974, p. 466, par 30 .. Delimitation maritime et questions territoriales entre Qatar et Bahrein, competence et recevabilite, arret, C.I.J. Recueil 1995, pp. 24-29 ; Demande d'examen de la situation au titre du paragraph e 63 de l'arret rendu par la Cour le 20 decembre 1974 dans I'affaire des Essais nucleaires (Nouvelle-Zelande c. France), C.U. Recueill995, p. 304, par. 55. Competence en matiere de pecheries, arret, par. 35-36.

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rneme quand ces dispositions avaient un caractere plutot general, com me par exemple dans Ie cas de I' article X du traite de 1955 conclu entre I'Iran et les EtatsUnis : "il y aura liberte de commerce et de navigation entre les deux Hautes Parties contractantes", Cette notion du differend d' ordre juridique a foumi une base solide et assez large quand la Cour a ete amenee ase pencher sur les questions generalement plus complexes, du consentement des parties. II est a noter que les decisions de la Cour quant a l'existence des differends ont ete pris souvent a une tres grande

majorite."

IV. COMPETENCE DE LA COUR : QUESTION DU CONSENTEMENT DES PARTIES

II convient maintenant de se toumer vers Ie probleme du consentement, ou en d'autres termes, vers la question de l'application du principe selon lequella Cour ne peut trancher un differend entre les Etats sans que ceux-ci aient consenti a sa juri diction. Le consentement des parties peut manquer completement ou n' exister que partiellement, en fonction de la realisation de conditions dont I' existence peut etre contestee. La Cour a rappele tout recemment que "I' interpretation des declarations faites en vertu du paragraphe 2 de l'article 36 du Statut et des reserves qu'elles contiennent a pour but d'etablir si un consentement mutuel a ete donne a sa competence"." La question du consentement a ete au centre de I' affaire de la Delimitation maritime et des questions territoriales entre Qatar et Bahrein. Bahrein pretendait qu' elle n'avait pas donne son accord pour porter Ie differend devant la Cour. La solution de ce probleme dependait avant tout du caractere juridique de l' echange de lettres

15

16

Par exemple, dans l'affaire de l'Application de La Convention du genocide, la Cour a rejete les premiere, deuxieme et troisieme exceptions prelirninaire s de la Yougoslavie par quatorze voix contre une ; la cinquieme par onze voix contre quatr e ; dans I'affai re des PLates-formes pet rolieres, l'exception preliminaire selon laquelle Ie traite de 1955 n'aurait pu d' aucune maniere fonder la competence de la Cour a ete rejetee par onze voix contr e deux (en d' autres terrnes, Iedispositif a precise qu'il yavait un differend quant al'interpretation ou al'application du traite de 1955 pour laquelle la Cour etait competente) ; Ie point l/al du dispositif de I' arret dans I'affaire dite de "Lockerbie" (Libye/Etats-Unis} a ete adopte par treize voix contr e deux. Competence en matiere de pecheries (Espagne c. Canada), competence et recevabilite, arret, c.u. Recueil 1998, par. 44.

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intervenu entre les souverains interesses -Ie roi d' Arabie Saoudite, l'Emirde Qatar et l' Emir de Bahrein - et du proces-verbal de Doha de 1990, ainsi que de I'interpretation de ses dispositions, en particulier du point de savoir si Qatar et Bahrein s'etaient engages a saisir la Cour separement ou seulement conjointement. Dans son arret du ler juillet 1994, la Cour a declare que les instruments en question constituaient des accords internationaux creant des droits et des obliga tions pour les parties et qu'aux termes de ces accords, les parties avaient pris I' engagement de soumettre a la Cour I' ensemble du differend qui les opposait. La Cour a decide de donner aux parties l' occasion d' agir a cette fin conjointement ou individuellement. Quand I' ensemble du differend a ete soumis a la Cour par une demarche individuelle de Qatar, la Cour s' est declaree competente et la requete de Qatar a ete consideree comme recevable . Dans l' affaire du Differend frontalier et maritime entre le Cameroun et le Nigeria, la premi ere exception du Nigeria alleguait qu'en deposant sa requete prematurement, Ie Cameroun n'avait pas agi de bonne foi et n'avait pas tenu compte de la condition de reciprocite prevue par Ie paragraphe 2 de l' article 36 du Statuto Les termes de la declaration du Nigeria n'etant pas remplis, la Cour n'aurait pas ete competente. Selon la deuxieme exception du Nigeria, les parties, par leur comportement commun, avaient accepte I' obligation de regler toutes les questions frontalieres au moyen des mecanismes bilateraux existants. A titre subsidiaire ajoutait-il -dans ces circonstances Ie Cameroun etait prive de son droit d'invoquer la competence de la Cour. La Cour a rejete ces exceptions et - s'appuyant sur un arret precedent- a declare que si Ie principe de la bonne foi "est l'un des principes de base qui president a la creation et a l'execution d'obligations juridiques [.. .] il n'est pas en soi une source d'obligations quant il n'en existerait pas autrernent". Concernant Ie probleme d'un delai raisonnable avant qu'une declaration puisse prendre effet, elle n'a pas trouve de raisons convaincantes pour s' ecarter du principe enonce dans l' affaire du Droit de passage sur territoire indien . Le membre de phrase "sou s la seule condition de reciprocite" invoque par Ie Nigeria devait aussi etre considere comme explicatif, ne posant aucune condition supplementaire et "ne [devait pas] etre regarde comme une reserve ratione temporis ", En reference au role des mecanismes bilateraux eventuellement disponibles, la Cour a remarque que c'etait precisement l'epuisement et l'inefficacite de ces mecanismes qui avaient pousse Ie Cameroun asaisir la Cour. Les exceptions preliminaires sc referent ala competence concurrente, presumee etre exclusive de celie d'autres organes ou organisations, peuvent constituer une categorie d'exceptions a examiner a part. La troisieme exception preliminaire du Nigeria a pretendu que Ie reglement des differcnds frontaliers dans Ie lac Tchad

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relevait de la competence exclusive de Ia commission du bassin du lac Tchad , et que la competence de la Cour ne pouvait des lors etre invoquee. La Cour a rejete cette exception en declarant que la commission du bassin du lac Tchad ne pouvait etre regardee comme un tribunal. Ladite commission ne rend ni sentence arbitrale, ni jugement, et de ce fait, n'est ni un organe arbitral, ni un organe judiciaire. De surcroit, aucune disposition de la convention du 22 mai 1964 etablissant la commission ne donnait competence - et a fortiori competence exclusive - a celle-ci en matiere de reglement des differends frontaliers . L' exception du Nigeria ne pouvait done rendre inoperant le consentement donne par la declaration de cet Btat acceptant la clause facultative de juridiction obligatoire de la Cour. Dans I' affaire de la Competence en matiere des Pecheries (Espagne c. Canada), la question du consentement se presentait sous la forme de l'intcrpretation d'une reserve que Ie Canada avait ajoute a sa declaration d' acceptation. Par la reserve, Ie Canada voulait exclure de la competence de la Cour d) les differends auxquels pourraient donner lieu les mesures de gestion et de conservation adoptees par Ie Canada pour les navires pechant dans la zone de reglementation de I'OPAN , telle que definie dans la convention sur la future cooperation multilaterale dans les peches de I' Atlantique Nord-Ouest, 1978, et I' execution de telles mesures. Le differend qui s'cst concretise en consequence de l'arraisonnement du navire Estai et du harcelernent d'autres navires espagnols appartient au type defini dans la reserve . La Cour a retenu cette exception. Elle a conclu que le diffcrend que lui avait soumis l'Espagne constituait un differend auquel avaient donne lieu des mesures de gestion et de conservation, etc., et quil entrait dans Ics previsions de la reserve canadienne . En I' absence manifeste de consentement d'une des parties au differend, la Cour s' est declaree incornpetente pour connaitre de I' affaire. Dans I'affaire de l'Incident aerien du 10 aoia 1999, les exception s preliminaires de l'Inde portaient sur Ie defaut de son consentement a lajuridiction de la Cour, en soutenant que la requete du Pakistan ne renvoie a aucun traite ou convention en vigueur entre les deux pays et qu'elle ne tient pas compte des reserves formulees dans la declaration que I'Inde a faite Ie 18 septembre 1974 conformernent aux dispositions du paragraphe 2 de l'article 36 du Statut o Les Parties s' opposaient sur la question de savoir si I' Acte general de 1928 est encore en vigueur. La Cour n'a pas tranche cette question, comme elle l'a evite dans des instances precedentes. Elle a repete ce qu' elle a dit dans I' affaire relative a Certains emprunts norvegiens :

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quand sa competence est contestee pour des motifs distincts, la Cour est Iibre de baser sa decision sur Ie motif qui, selon elle, est plus direct et decisif. (C.U. Recueill957, p. 25; arret du 21 juin 2000, par. 26.) ElIe a examine en premier lieu la communication de I'Inde du 18 septembre 1947 : A supposer meme - a-t-elle dit - que I' Acte general de 1928 ait lie l'Inde, en tout etat de cause eUe aurait cesse d'etre Me par I' Acte general [. .. ] au plus tard, Ie 16 aoilt 1979, la communication ayant rempli les memes fonctions juridiques que la notification de la denonciation, Le prob 1erne des reserves a occupe une place plus importante dans I' argumentation des Parties et en consequence parmi les motifs de l'arret de la Cour. La declaration du 18 septembre 1974, par laqueUe l'Inde a reconnu la juridiction de la Cour, contenait une reserve concernant les differends avec le Gouvernement d'un Etat qui est ou a ete membre du Commonwealth of Nations et une autre concernant les differends relatifs a l'interpretation ou l'application d'un traite multilateral. Les differends appartenant a cette seconde categorie ont ete exclus de la juridiction obligatoire de la Cour, a moins que toutes les Parties au traite ne soient egalement parties a I' affaire. Le Pakistan a argumente que les reserves qui - tel1eque la reserve dite Commonwealth - n'entreraient pas dans les categories autorisees par Ie paragraphe 3 de l'article 36 du Statut, devraient etre considerees comme extrastatutaires qui ne sont pas opposables a I'Etat requerant que s'il ne les con teste pas . La Cour a rejete cette exception. Elle a declare que Ie paragraphe 3 de I' article 36 du Statut na jamais ete regarde com me fixant de maniere exhaustive les conditions selon lesquel1es des declarations pourraient etre faites. II a ete reconnu que les Etats faisant des declarations d' acceptation de la juridiction de la Cour, ant la faculte de les assortir de reserves determinant I' etendue de cette acceptation. EUe a done estime superftu de poursuivre I'examen de la question des reserves extra-

statutaires.

Par rapport a la reserve dite "Commonwealth", la Cour a precise que les raisons historiques qui ont explique a l'origine I'apparition de la reserve, ont pu evoluer ou disparaitre, Toutefois, de tel1es considerations ne sauraient prevaloir sur l'intention d'un Etat declarant, tel1e qu' elle trouve son expression dans Ie texte merne de sa declaration. L'Inde a indique a plusieurs reprises qu 'elle souhaitait limiter de cette maniere la portee ratione personae de son acceptation de la juridiction de la Cour. Quel1es qu'aient pu etre les raisons de cette limitation, ceUe-ci

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s'impose ii la Cour. (Incident aerien du 10 aoia 1999 (Pakistan c. Inde) arret du 21 juin 2000, par. 44.) Elle a retenu I'exception preliminaire basee sur la reserve dite "Commonwealth", precisement formulee et reiterce d'une maniere consequente (elle figurait dans toutes les declarations de l'Inde admettant la juridiction obligatoire de la Cour). Elle a conclu qu' elle n' a pas competence pour connaitre de la requete du Pakistan. En consequence, elle considerait ne pas devoir examiner I'exception tiree par l'Inde de la reserve aux traites multilateraux et elle a rejete l' argument du Pakistan tire en I'espece de l'estoppel. Finalement, elle a observe que la Charte des Nations Unies ne contient aucune clause specifique conferant par elle-rnerne juridiction obligatoire a la Cour.'? Dans I' affaire du Timor oriental, ce n'etait pas Ie consentement des deux parties (toutes deux ayant accepte la clause facultative du paragraphe 2 de l'article 36 du Statut) mais l'absence d'un Btat tiers - l'Indonesie - directement interesse qui posait probleme. En se referant a son arret en l'affaire de l'Or monetaire (Cl.I. Recueil 1954, p. 32), selon lequel "la Cour ne peut exercer sa juridiction a I' egard d'un Etat si ce n'est avec Ie consentement de ce dernier", elle a souligne dans son arret" qu'elle n'[etait] pas necessairement empechee de statuer lorsque I'arret qu'illui est dernande de rendre est susceptible d'avoir des incidences sur les interets juridiques d'un Btat qui n'cst pas partie a l'instance", mais a mis en exergue qu'en l'cspece, I'arret demande par Ie Portugal "aurait des effets equivalant a ceux d'une decision declarant que l' entree de l'Indonesie et son maintien au Timor oriental sont illicites", l'Indonesie n'ayant pas Ie droit de conclure Ie type de traites en cause en I' affaire. "Les droits et obligations de I' Indonesie constitueraient des lors l'objet meme d'un tel arret, rendu en l'absence du consentement de cet Btat".18 La Cour en a conc1u qu'elle ne pouvait, en l'espece, exercer la competence a elle conferee par les declarations faites par les parties conformement au paragraphe 2 de l'article 36 du Statuto II est a noter qu'il ne s'agissait point Iii d'une question d'Incompetence de la Cour, mais de l'irnpossibilite d'exercer une telle competence du fait de l'absence du consentement d'un Btat tiers dont les droits et les obligations auraient constitue I' objet de I' arret dernande . II est necessaire de pretcr attention au raisonnement

17

18

Aucune clause de ce type ne figure en particulier au paragraphe 3 de I'article I, aux paragraphes 3 et 4 de I'article 2, aI'article 33, au paragraphe 3 de I'article 36 et aI'article 92 de la Charte des Nation s Unies invoques par Ie Pakistan. Voir C.U. Recueifl998 , pp. 104-105.

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ainsi suivi par la Cour, car un argument similaire a ete utilise dans la quatrierne exception preliminaire du Nigeria en I' affaire de la Frontiere terrestre et maritime entre le Cameroun et le Nigeria . Selon cette exception, la Cour "ne devrait pas determiner en l'espece I'emplacement de la frontiere dans Ie lac Tchad dans la mesure ou cette frontiere constitue Ie tripoint dans Ie lac ou est constituee par celui-ci", Le Nigeria faisait valoir acet egard que la localisation du tripoint affectait directement un Etat tiers, a savoir la Republique du Tchad. La Cour a rejete cette exception en declarant que proceder a une nouvelle determination du point ou la frontiere entre Ie Cameroun et Ie Nigeria rejoint celle entre Ie Tchad et Ie Cameroun ne pourrait conduire en I'espece qu'au deplacement du tripoint Ie long de la ligne de la frontiere entre Ie Tchad et Ie Cameroun. Ainsi, les interets juridiques du Tchad, en tant qu'etat tiers non partie a l'instance, ne constitueraient pas l'objet de la decision a rendre. Des lors I'absence du Tchad n'empecherait nullement la Cour de se prononcer sur le trace de la frontiere. La Cour n'cst pas empechee d'exercer sa competence dans Ie cas ou l'arret est susceptible d'avoir des incidences sur les interets juridiques d'un Etat tiers, mais elle l'est dans les cas ou les droits et les obligations d'un Etat tiers deviendraient l'objet merne de l'arret. La ligne rouge que la Cour ne peut pas franchir dans l' exercice de sa competence se dresse ainsi dans la zone qui se trouve entre les deux definitions. C' est sur une base analogue a celie de sa quatrieme exception que la huitieme exception du Nigeria a ete fondee , Le Nigeria a soutenu notamment que la ques tion de la delimitation de sa frontiere maritime avec Ie Cameroun mettait necessairement en cause les droits et interets des Etats tiers et que la demande correspondante etait pour ce motif irrecevable. La Cour n' a pas considere cette exception comme ayant un caractere exclusivement preliminaire, Pour pouvoir determiner quel serait Ie trace de la frontiere maritime prolongee au-dela d'un certain point et comment et dans queUe mesure, elle se heurterait aux revendications eventuelles d'autres Etats, la Cour a considere qu'"il serait necessaire [qu'elle] examine la demande du Cameroun au fond", tout specialement en ce qui conceme la question de la souverainete sur la presqu'Ile de Bakassi. En consequence, la Cour a conclu que I'exception du Nigeria n'avait pas, dans les circonstances de I' espece, un caractere exclusivement preliminaire. Finalement, nous devons mentionner les exceptions d'incompetence ratione temporis. Dans I'affaire de I'AppLication de La Convention sur le genocide, la Yougoslavie a pretendu (sixieme exception) que la Bosnie-Herzegovine n'etait devenue partie a la convention de 1948 que Ie 29 mars 1993, et que done la Cour n' etait pas cornpetente pour connaitre des demandes du requerant relatives aux actes ou faits allegues intervenus anterieurement a cette date . La Yougoslavie a

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developpe une argumentation similaire dans sa septieme exception : "sans prejudice de la sixieme exception preliminaire " - a-t-elle soutenu - si la Bosnie-Herzegovine devait etre consideree comme etant devenue partie ala convention de 1948 sur Ie genocide a compter du 6 mars 1992, laditc convention n' aurait pas etc applicable entre les parties avant Ie 29 decernbre 1992. En consequence, la Cour ne serait pas competente pour les actes et faits allegues anterieurs a cette date . La Cour a rejete ces exceptions en observant que la Convention sur Ie genocide ne comportait aucune clause qui aurait eu pour objet ou pour consequence de limiter de la sorte l'etendue de sa competence ratione temporis, et que les parties eIlesmemes n' avaient forrnule aucune reserve a cet effet. Dans ce contexte on ne peut pas laisser sans mention la deuxierne exception du Royaume -Uni et des Etats-Unis dans les affaires dites de "Lockerbie", Ces deux exceptions ont ete presentees comme visant la recevabilite des requetes de la Libye; toutefois, leur sort dependait d'un factcur temporcl, asavoir de la relation entre les dates des requetes de la Libye et celles des decisions du Conseil de securite invoquees par les Etats defendeurs . Nous y reviendrons. Au cours de ces sept dernieres annees, la Cour s'est declaree deux fois incompetente du fait de I' absence manifeste du consentement de I'une des parties. Le Canada ainsi que I'Inde pouvaient se prevaloir d'une reserve excluant la competence de la Cour et redigee de maniere suffisamment precise et englobante. En revanche, elle a rejete I'exception du Nigeria alleguant que les termes de sa declaration "sous la seule condition de la reciprocite" devaient etre consideres comme une reserve ratione temporis et conduire la Cour ase declarer incompetente. Le sens normal du texte des declarations du Canada et de I'Inde n'a pas permis d'autre conclusion, tandis que dans la declaration du Nigeria, les termes "sous la seule condition de reciprocite" apparaissaient trop vagues pour etre consideres comme constituant une reserve a une declaration exprimant Ie consentement a la juridiction. La Cour - comme nous I'avons vu - a elabore des criteres de distinction entre les affaires ou les droits et les obligations d'un Etat tiers constituent I' objet de la demande et les affaires dans lesquelles sa decision est susceptible d'avoir des incidences sur les interets juridiques d'un Etat tiers, distinction ayant des consequences decisives quant aI' exercice ou au non-exercice de la competence de la Cour. Cette distinction pourrait etre rendue plus precise encore, si la Cour est arnenee, dans de futurs arrets, a la mettre en eeuvre.

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V. EXCEPTIONS D'!RRECEVABILITE Au sujet des exceptions d'irrecevabilite, on se referera aux remarqu es faites apropos des difficultes concernant la distinction et la separation a operer entre ces exceptions et celles d'incompetence. II est superflu de les repeter ici. De l'examen des exceptions d'irrecevabilite presentees par les defendeurs, on peut toutefois degager certains criteres. Reprenons maintenant celles auxquelles la Cour a ete confrontee. Requete ne provenant pas d'un organ e autorise ou competent Selon la deuxieme exception preliminaire de la Yougoslavie presentee en I'affaire de I'Application de La convention sur Le genocide, Alija Izetbegovic n' occupait pas les fonction s de president de la Republique a I' epoque oil il a donne I' autorisation d'introduire une instance devant la Cour. La requete de la Bosnie -Herzegovine n'aurait done pas ete recevable. La Cour a rejete cette exception en declarant qu'elle ne devait pas examiner les dispositions du droit interne invoquees a l'appui ou a I'encontre de ladite exception. Conformement au droit international, il ne faisait pas de doute que tout chef d' etat est presume pouvoir agir au nom de son Btat dans ses relations internationaIes. Au moment du depot de la requete, M. Izetbegovic avait ete reconnu par I'ONU comme etant Ie chef de I'Btat de la Bosnie-Herzegovine, La Cour a done considere, de ce chef, la requete comme recevable. Confiit des demandes avec des normes superieures Dans les affaires dites de "Lockerbie", Ie Royaume-Uni, tout comme les EtatsUnis, ont pretendu que la requete Iibyenne n'etait pas recevable, car les mesures auxquelles s' opposait la Libye avaient ete prises par Ie Conseil de securite aux termes des resolutions 731 , 748 et 883 . La Cour a rejete ces exceptions d'irrecevabilite en arguant que la date critique a retenir pour determiner la recevabilite d'une requete est celie de son depot. Lcs resolutions 748 et 883 du Conscil de securite ne pouvaient des lors etre prises en consideration acet egard, ayant ete adoptees ades dates ulterieures, La resolution 731 - prise avant Ie depot de la requete de la Libye - ne constituait pas un obstacle juridique ala recevabilite , etant une simple recommandation sans effet contraignant. Le probleme d'un conflit avec une norme superieure ne se posait done pas en rapport avec la recevabilite de la requete. En ce qui conccrne Ics resolutions du

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Conseil de securite ulterieures, la Cour a envisage ce rapport dans Ie cadre de l' exception pertinente des defendeurs. Defaut dans le contenu de La requete.

Le Nigeria a presente une sixieme exception en soutenant que la requete deposee par Ie Cameroun ne satisfaisait pas aux criteres exiges quant al' expose des faits sur lequel elle se fondait (dates, circonstances et lieux precis, etc., d'incidents frontaliers) . La Cour a rejete cette exception en rappelant que, selon la pratique etablie, les Etats qui deposent une requete se reservent Ie droit de presenter ulterieurement des elements de fait et de droit supplementaires, des lors toutefois que Ie differend porte devant la Cour "ne se trouv[ait] pas transforme en un autre differend dont le caractere nc serait pas Ie meme .. ." .19 La Cour a ensuite declare: C' est au demandeur de subir les consequences d' une requete qui ne contiendrait pas un expose satisfaisant des faits et des motifs sur lesqueis repose sa demande.

VI. " A UTRES EXCEPTIONS"

Entin , qu'en est-il des "autres exceptions" qui ne sont pas definies ni precisees dans Ie Reglement ? Selon les exceptions pertinentes soulevees par Ie Royaume-Uni et les EtatsUnis - de substance equivalente, mais soulevees de maniere differente - dans les affaires dites de "Lockerbie" , il n'y aurait plus eu lieu 11 statuer sur les demandes de la Libye, car les resolutions du Conseil de securite auraient privees celles-ci de tout objet. Tout arret aurait des lors etc condamne aetre depourvu d' effet pratique . Ces arguments n'ont pas convaincu la Cour. Ainsi formulee - disait-elle dans chacune des deux affaires -1'exception du defendeur se presente comme une exception de non-lieu. II s'agit d'une "toute autre exception" dans Ie sens de l'article 79 du Reglement, mais celle-ci doit etre exclusivement preliminaire. Selon la Cour, Ie Royaum e-Uni et les Etats-Uni s en tentant d' obtenir une decision de non-lieu , en

19

Cf. Activites militaires et parami litaires au Nicaragu a et contre celui-ci (Nicaragua c. EtatsUnis d 'Amerique ), competence et recevabilite, arret, c.u. Recueill984, p. 427, par. 80.

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sollicitaient en realite deux autres : "d'une part, une decision etablissant que les droits revendiques par la Libye sont incompatibles avec les obligations decoulant des resolutions du Conseil de securite et d' autre part, une decision faisant prevaloir ces obligations sur ces droits par Ie jeu des articles 25 et 103 de la Charte [. .. J". "Les droits de la Libye au fond - poursuit chaque arret - seraient non seulement touches par une decision de non-lieu ace stade de la procedure , mais constitueraient, a mains egard s, l'objet meme de cette decision. L'exception soulevee [. .. ] sur ce point a Ie caractere d'une defense au fond" . La Cour a conclu que l'exception du Royaume-Uni ainsi que celie des EtatsUnis precitees n'avaient pas dans les circonstances de l'espece un caractere exclusivement preliminaire. Elle a decide de connaitre de cette question dans Ie cadre de l' examen du fond de I' affaire. 20

VII . CONCLUSIONS II ressort de ce bref apercu que dans toutes les affaires introduites par une requete, les Etats defendeurs ont souleve des exceptions de nature prelirninaire parfois fort nombreuses. II n'y en a pas une seule dans laquelle la partie defenderesse n'a pas mis en quest ion la competence de la Cour et/ou la recevabilite de la requete. La Cour a rejete la majorite des exceptions soulevees, Au cours des sept annees envisagees, la Cour s' est declaree incompetente quatre fois acause de l'absence du consentemcnt d'une des parties. Deux fois dans Ie cadre des procedures suivant Ie depot des exceptions preliminaires (Comp etence en matiere de pech eries (Espagne, c. Canada) ; Incident aerien du 10 aout 1999 (Pakistan c. Inde) et deux fois en rejetant des demandes en indication de mesures conservatoires pour violations de l' obligation de ne pas recourir aI' emploi de la force (Yougoslavie c. EtatsUnis d'Amerique, Yougoslavie c. Espagne) en con statant qu'elle n'a pas manifestement de competence. Une fois elle a refuse d'exercer sa competence a cause de l'absence du consentement d'un Etat tiers directement affecte . Les exceptions

20

Dans I'affaire de la Competence en matiere de pecheries. Ie Canada a soutenu dan s son contre-rnernoire que Ie differend avec I'E spagne avait ete regle depuis Ie depot de la requete ; mai s 11 l'audience, l'agent du Canada a precise que son Gouvernement ne contestait la competence de la Cour que sur la seule base de sa reserve. La Cour etant arrivee 11 la conclusion qu 'elle n'avait pas competence pour statuer sur Ie differend, elle a estime ne pas avoir 11 examiner Ie rapport entre ce differend et I' objet de I'accord de la Cornmunaute europeenne ni d' enquerir "si elle aurait dO prononcer Ie non-lieu".

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concernant l'effet des resolutions du Conseil de securite dans les affaires dites de "Lockerbie" , et celle concernant les interets possibles des Etats tiers dans l'affaire de la Frontiere terrestre et maritime entre le Cameroun et le Nigeria ont ete considerees chacune comme ne presentant pas, dans les circonstances de l' espece, un caractere exclusivement preliminaire. Les autres exceptions ont etc rejetees par la Cour, qui va proceder a l' examen du fond dans les affaires en question. Certes, Ie stade preliminaire ainsi cree allonge la duree des affaires, mais permet d'eviter les procedures inutiles, et donne a la Cour la possibilite de developper ses regles sur les questions de competence et de recevabilite, Sept annees constituent une periode assez courte pour pouvoir degager des tendances a long terme dans la jurisprudence de la Cour. Toutefois, il est certain que la Cour est restee fidele a ce qu'elle a l'habitude d'appeler" une pratique constante", qui comprend celie de sa devanciere, la CPJI aussi. Ses arrets sont pleins de references aux arrets precedents et de citations exprimant des positions de principe ou des regles generales. La Cour n'a manifeste aucun desir de les ecarter ou de les reviser, bien qu'il y ait eu des tentatives individuelles dans cette direction . La Cour, elle-merne, n'a voulu ni elargir ni restreindre Ie systeme etabli par son Statut, mais renforcer le cadre de ce systeme et l' ameliorer d'une maniere a la fois constante et coherente. Au cours des sept dernieres annees, la Cour a contribue au developpement du droit international en clarifiant et precisant d'une maniere considerable les regles sur sa competence et sur la recevabilite des requetes introduites par les parties demanderesses.

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THE EUROPEAN CONVENTION FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT Building an Effective Human Rights Accountability Mechanism; Work in Progress Pierre-Henri 1mbert and Mark Kelly (Article originally drafted 13 June 200 I)

I. INTRODUCTION The past decade has been a particularly challenging time for international human rights lawyers. At a theoretical level, it has been a period marked by continued clashes between the "legalist" vision of international human rights law as an effective means of constraining States from engaging in human rights abuses, and the "realist" position (held by many policy-makers and politicians), whereby strategic interests must often be allowed to prevail over human rights considerations. Given that this debate has taken place against a well-known backcloth of continued gross violations of human rights by States, finding an effective means of reconciling legalist and realist view s of the role of international human rights law is a question of more than academic interest. One promising tendency which has emerged is to re-cast the debate between realism and legalism in terms of the notion of accountability, a tendency which has been accompanied by international efforts to build effective human rights accountability mechanisms. As Shattuck has put it, "the term accountability must be turned from an idea into a reality by developing a spectrum of institutional responses to human rights abuse, supple enough to respond to a range of issues, and concrete enough to actually bring about change in troubled societies, and not just

LiC, Vohrah et al. (eds .), Man 's Inhumanity to Man. 423-442 ©200 3 Kluwer Law International. Printed in the Netherlands.

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burden the workload of the International Court of Justice or add new volumes to the statute books".' Antonio Cassese is an international human rights lawyer who has spent the last ten years engaging not only with the theoretical aspects of this debate, but also (to borrow one of his own favourite English phrases) "getting down to the nitty-gritty" of attempting to bring international human rights law to bear upon real violations of human rights. He has done so inter alia as the first President of two institutions which aspire to become effective human rights accountability mechanisms: the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the International Criminal Tribunal for the former Yugoslavia. The authors knew Cassese before and during his Presidency of the former body and, in what follows, we record his valuable contribution to the work of (re) drafting the Convention on which the CPT's work is based, and to the subsequent implementation of the Convention. However, we also suggest that, if such a record is to be of more than historical interest , it should be placed in perspective, as a contribution to the "work in progress" of turning the CPT into an effective human rights accountability mechanism . We contend that the essential components of such a mechanism should include not only effective monitoring but also meaningful machinery to ensure that action is taken to implement the recommendations of the mechanism concerned. Given that it is questionable whether the necessary machinery currently exists, we conclude by suggesting some additional ways in which the CPT - as a monitoring body with a distinctive status in international human rights law - might do more to ensure that its recommendations are implemented by Council of Europe member States .

II . ANTONIO CASSESE'S CONTRIBUTION

A. (Re) drafting the European Convention for the Prevention of Torture The best laid schemes 0' mice an ' men gang aft a-gley2

1

2

J. Shattuck, ' Human Rights and Democracy in Practice : the Challenge of Accountability' , in Koh, H.J., and Slye, R.C. (eds .), Deliberative Democracy and Human Rights (New Haven, Yale University Press, 1999) at pp. 301-306. Robert Bums, "To a Mouse, On Turning Up Her Nest With the Plough", 1785.

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On 28 September 1983, the Consultative Assembly of the Council of Europe - the body now known as the "Parliamentary Assembly" - adopted Recommendation 971 (1983) on the protection of detainees from torture and from cruel, inhuman or degrading treatment or punishment. Appended to this Recommendation was a draft European Convention on the Protection of Detainees from Torture and from Cruel , Inhuman or Degrading Treatment or Punishment, which had been prepared with the assistance ofthe International Commission of Jurists and the Swiss Committee Against Torture .' The Assembly recommended that the text of this draft Convention be adopted by the Organisation's Committee of Ministers. The process of drafting a new multilateral Convention is frequently a very lengthy one; however, in this case, the Assembly chose to present the Committee of Ministers with an "off-the-peg" text which, in its view, was "ready to adopt". This approach rendered it more difficult for the Committee of Ministers to procrastinate and, in January 1984, it conferred the following mandate on the Steering Committee for Human Rights (CDDH)4: Consider Assembly Recommendation 971 with a view to submitting to the Committee of Ministers, after consultation of the European Committee on Crime Problems (CDPC), the text of a draft Convention or other legal instrument on the protection of detainees from torture and from cruel, inhuman or degrading treatment or punishment. In its tum, in March 1984, the CDDH instructed one of its subordinate bodies - the Committee of Experts for the extension of the rights embodied in the European Convention on Human Rights (DH-EX) to undertake this work, under the authority of the CDDH. The membership of the CDDH (and of subordinate bodies such as the DH-EX) includes senior civil servants who have been appointed by their governments to scrutinise proposals for new Council of Europe human rights projects. Naturally, the background and training of such members predisposes them to pay particularly

3

The latter organisation is now known as the "Association for the Prevention of Torture" (APT).

4

The CDDH is one of a number of "Steering Committees" set up by the Committee of Ministers, which are answerable directly to it. Each steering committee is responsible for a substantial portion of the Organisation's Intergovernmental Programme of Activities (human rights, gender equality, social protection, etc) . The governments of all the member States are entitled to designate persons to the steering committee, who may include senior national officials .

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close attention to proposal s designed to render States more accountable to international human rights standards. In this connection, it is not unknown for wellintentioned human rights projects submitted to the CDDH to slowly expire during lengthy technical discussions of their "feasibility". " Happily, this has never been true of all members of such bodies, and one such exception was a certain Antonio Cassese, who served as the Italian member of both the CDDH and the DH-EX during the period in question . The DH-EX took six meetings, and a little over two years (from May 1984 to June 1986) to complete its consideration of the draft Conventi on; by Council of Europe standards, fast work. In November 1986, on the basis of that work, the CDDH transmitted a new draft European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment to the Committee of Ministers, which adopted it in June 1987. One of the authors- knew Antonio Cassese throughout this period , and closely followed the progress of the DH-EX/CDDH work on (re) drafting the text which had been presented by the Assembly. The Explanatory Report to the Convention record s that this work included consultations with the European Commi ssion and Court of Human Rights, hearings with bodies such as the International Committee of the Red Cross, and granting appropriate weight to various other anti-torture pronouncements by the Commit tee of Ministers and the Parliamentary Assembl y.' Since the work of the DH-EX/CDDH forms part of the "travaux preparatoires" to the Convention (which are not readily available), it is difficult to provide much more specific detail about the "real" process of (rc) drafting the text. However, no one who was associated with that work would deny that the process was, on occasion, considerably more fraught than is suggested by a reading of the Explanatory Report alone. At the core of the draft text which had been presented by the Assembly was the notion of creating a body - the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) - which would enjoy virtually unfettered rights of access to places of detention in Council of Europe

5

See further, P.-H. Imbert, 'L'action intergouvemementale du Conseil de I'Europe en matiere de droit s de l'homrne : sauvegarde ou developpement?' in "Protection des droits de l'h omm e: la dimension europeenne", Melanges en I'honneur de Gerardi. Wtarda, (Koln, Carl Heymanns Verl ag KG, 1988), pp. 259-27 1.

6

Pierre-Henri Imbert .

7

See paras 8 to 10 of the Explan atory Report to the Convention.

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member States, with a view inter alia to monitoring the behaviour of law enforcement officials. Given the membership profile of the DH-EXlCDDH, it would be surprising if certain of their number were not to have viewed (or, more accurately, to have been instructed to view), the creation of a body with such powers as a thoroughly unwelcome intrusion upon State sovereignty. Aimed, as it was, at granting the widest possible margin of manoeuvre to the CPT, the draft Convention presented by the Assembly could only have provided "grist to the mill" of any such pro-State-sovereignty lobby within the DH-EXlCDDH. If such views did prevail among some of those charged with (re)drafting the Convention, they were certainly not shared by Antonio Cassese. As his subsequent actions demonstrated (see below), Cassese was quick to see the potential of this new Convention to challenge the use of the doctrine of State sovereignty to cloak acts of torture and ill-treatment. However, he also recognised the need to provide some measure of reassurance to States which would eventually be called upon to ratify the Convention. Throughout the (re) drafting process, Cassese made judicious use of his legal and diplomatic skills to help ensure that the final text , while being acceptable to States, would nonetheless preserve the essence of creating a system of independent monitoring by an autonomous treaty body. Although he was not alone in this endeavour, his work on the DH -EXlCDDH certainly entitles Antonio Cassese to regard himself as one of the "architects" of the Convention which was finally adopted. In many ways , the text of the adopted Convention is deliciously vague, but it includes a number of normative and practical elements which were highly influential in maximising the impact of the work of the Committee which it created. At the normative level, the Convention grants the Committee a broad mandate," and extensive powers ." However, it contains no definition of torture or inhuman or degrading treatment or punishment, a recipe which has left it open to the CPT to

8

9

''The Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthen ing, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment." Convention, Article 1. In terms of Article 8 of the Convention, the CPT enjoys unlimited access to the territory of the State concerned and the right to travel without restriction ; unlimited access to any place where people are deprived of their liberty, including the right to move inside such places without restriction; access to full information on places where people deprived of their liberty are being held, as well as to other information available to the State which is necessary for the Committee to carry out its task. The Committee is also entitled to interview in private persons deprived of their liberty and to communicate freely with anyone whom it believes can supply relevant information.

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develop its own standards or "measuring rods" on the basis of its findings during visits to places of detention. At a more practical level (and in common with certain other Council of Europe "control bodies") ,'? the Convention specifies that the members of the CPT "shall serve in their individual capacity, [and] shall be independent and impartial"." Moreover, it grants the CPT the possibility to appoint, on an ad hoc basis, additional independent experts to assist it during visits .'? The success of this redrafted text in striking an effective balance between "realism" and "legalism" would seem to be borne out by the rapidity with which Council of Europe member States ratified the new Convention. Opened for signature in October 1987, little more than a year later, it had attracted the seven ratifications necessary for it to enter into force." By the end of 1990, 20 of the Council's then 24 member States had ratified the Convention, and today it binds 41 of the Organisation's 43 member States.

B. Implementing the Convention

Implementing this Convention is like trying to make bricks from straw .. . (Anonymous) The first elections of members of the CPT were held in September 1989, and among those appointed was a new member in respect of Italy : Antonio Cassese. Less than two months later, at the CPT's first formal meeting, Cassese was elected as the Committee's first President. He was to hold that post, without interruption, until 1993, when he left the CPT. Both of the authors knew Cassese throughout this period, and one of them!'

10

For example, the Advisory Committee on the Framework Convention for the Protection of National Minorites, the European Commission against Racism and Intolerance and the European Committee of Social Rights .

II

Convention , Article 4, para . 4.

12

Convention, Article 7, para . 2.

13

14

The Convention entered into force on I February 1989, with eight ratifications (by Ireland , Luxembourg, Malta , the Netherlands, Sweden , Switzerland, Turkey and the United Kingdom) . Turkey was the first of these "founder" State s to ratify the Convention (on 26 February 1988). Mark Kelly.

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worked closely with him, both during CPT visits in the field, and Committee sessions in Strasbourg. In what follows, we chart his contribution during three crucial phases of implementing the Convention : the development of the CPT's Rules of Procedure; the first visits by the Committee; and the consolidation of the CPT's early work. J. The development of the CPT's Rules of Procedure

The new Committee's draft Rules of Procedure were drawn up by its Secretariat, based on the model of the Rules of Procedure of the (then) European Commission and the European Court of Human Rights . The CPT's first General Report records that the draft Rules "granted a major role to the President of the Committee. In addition to taking all important decisions when the Committee was not in session, it was foreseen that the President would also have the main role in the conduct of business while the Committee was not in session"." However, the new President had other ideas, and "on the proposal of the President himself, the CPT instead assigned the task of directing its work to the Bureau, consist ing of the President and the two Vice-Presidents". 16 Cassese was very keen on this arrangement, which he liked to term "the collegial direction " of the Committee's work, for two main reasons . First, he considered that a multi-disciplinary treaty body should have multi-disciplinary leadership . In this respect, the Committee's first Bureau also consisted of a retired surgeon with experience in the rehabilitation of torture victims, and a specialist in forensic medicine and psychiatry. Secondly, he felt that, particularly in the early stages of the Committee's work, it was undesirable that so much ostensible authority should be vested in a single person. It is characteristic of Cassese that he should insist upon introducing a "collegial" arrangement which was hardly calculated to make his own life easier. His colleagues in the first (and subsequent) Bureau each considered themselve s - not without justification - to be equally as eminent in their chosen fields as was Cassese in his own. Thus, although meetings of the Committee's Bureau were invariably "civilised" affairs, the new President was compelled to engage in a great deal of inter-disciplinary debate which he might equally easily have avoided .

15

Para. 14 of document CPTlInf (91) 3.

16

Ibid.

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The wisdom of this approach would seem to have been vindicated by members of the CPT during subsequent Bureau elections, in which they have consistently voted for office-holders who reflect the spread of professions among their number. Further, the creation of the Bureau undoubtedly facilitated the process of securing the agreement of other Committee members to the many measures which Cassese subsequently proposed from the chair during plenary sessions. For those measures were seen to be "those of the Bureau, not the President alone" Y The CPT 's Rules of Procedure" also came to incorporate a number of other novel elements which had not explicitly been foreseen in the Convention, including an "alarm system" designed to enable it to "react expeditiously and effectively when it receives disturbing reports, but when the facts at its disposal are not sufficient in themselves to justify an ad hoc visit"!"; a procedure for notifying visits to countries, designed to give advance notice yet retain "a considerable measure of surprise'F" ; the exclusion of the so-calIed "national member" from CPT visits to his/her own country," and provisions to penalise any breach of confidentiality by Committee members or others associated with its work." By no means alI of these measures were designed by Cassese himself but, as President, he played a leading role in their adoption by the CPT. Taken as a whole, the Committee's Rules of Procedure are characterised by an evident intention to co-operate with States , coupled with a stout defence of the Committee's independence. Their adoption served to provide the CPT with a solid framework within which to carry out its first visits. 2. The first visits by the Committee

Readers interested in a detailed description of the approach employed by the Committee during its first visits to State Parties to the Convention should consult the chapter on this subject in the CPT 's First General Report." However, for our present

17

18

Ibid., para. 15. Document CPTlInf/C (89) 3 rev. I

19

Para. 23 of document CPT/lnf (91) 3. The procedure concerned is set out in Rule 30 of the CPT's Rules of Procedure.

20

Ibid., para. 28. The procedure is set out in Rule 35 of the Rules of Procedure .

21

Rule 37.

22

Rules 47 and 48.

23

Chapter V of document CPT/lnf (91) 3.

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purposes , it is interesting to note that, some ten years after the First General Report was written, the practices developed during those first visits remain largely unmodified. There is good reason to believe that this is attributable not only to whatever inherent soundness those practices may possess , but also to the manner in which delegations charged with the first visits were encouraged to carry out their task. Here again, the Committee's first Bureau and, more particularly , its first President played a central role in ensuring that, while fully respecting the formal provisions of the Convention, the modus operandi of visiting delegations was pragmatic and results-orientated. This is important since, while in the field, CPT visiting delegations are frequently called upon to balance the competing interests inherent in the Convention. For example, while Article 3 of the Convention specifies that "the Committee and the competent national authorities of the Party concerned shall co-operate with each other" in the application of the Convention, the CPT has recorded that, on occasion , national authoritie s have failed to expeditiously grant "unlimited access" to places of detention (as is required by Article s 2 and 8 (2) (c) of the Convention). In such situations , just how "cooperative" should a visiting delegation be in seeking to resolve an on-the- spot difficulty of this nature? In practice , when confronted by young policemen who gave every appearance of being spectacularly ignorant of the CPT 's very existence, Antonio Cassese's reaction was to brandish a copy of the Convention, cite the CPT 's mandate and powers and, often to the surprise of everyone except himself, succeed in securing access to the place concerned. The on-the -spot resolve displayed by Cassese and other Heads of delegation s during the CPT 's first visits helped set the tone for the Committee's modus operandi during the years to follow. Similarly, visiting delegation s have occasionally encountered difficulties as rcgards access to documents in detained persons ' files held by police or judic ial authorities and/or access to medical records of detainees . The legal basis for the CPT's access to such information is set out in Article 8 (2) (d) of the Convention: "A Party shall provide the Committee with [. .. J other information available to the Party which is necessary for the Committee to carry out its task". However, the same provision stipulates that, "In seeking such information, the Committee shall have regard to applicable rules of national law and professional ethics". Given that the supervening purpose of the Convention is the prevention of ill-treatment, how much regard should a delegation have to "applicable rules of national law and professional ethics" in the event of a denial of access to documentation which it regards as vital?

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The approach proposed by the Bureau, and adopted by the Committee, was that although the caveat requiring a delegation to have regard to applicable rules of national law and professional ethics "clearly allows for certain conditions to be attached to the provision of the information sought [. .. ] it cannot be used to justify an outright refusal to grant access to the information reque sted, nor access under conditions which would be tantamount to a refusal"." In short , active low-level diplomacy coupled with firmness of purpose was the hallmark of the Committee's approach during its first visits.

3. Consolidating the CPT's work a) Reporting Among the most important elements of the process of consolidating the CPT's work was the elaboration of the CPT's reporting system. The Convention simply provides that "after each visit, the Committee shall draw up a report on the facts found during the visit, taking account of any observations which may have been submitted by the Party concerned. It shall transmit to the latter its report containing any recommendations it considers necessary. The Committee may consult with the Party with a view to suggesting, if necessary, improvements in the protection of persons deprived of their liberty" ." At an early stage , the CPT decided that it could breathe more life into this reporting mechanism if it were "to include in its report to the Government of the country visited a request that it report back to the Committee, within a certain period of time, on the measures taken to implement the recommendations contained in the report . The State concerned is expected to give an account not only of the legislative and administrative measures taken, if any, but also of the implementation, in actual practice, of the Committee's recomrnendations'V" The major difference between this reporting mechanism and the majority of those created by (or for) other human rights treaty bodies is that CPT visiting delegations systematically return to States visited - Government responses- in-hand - in order to ascertain whether purported improvements have actually been made . Thus, written responses by Governments to the Committee's visit report s provide

24

Para. 5 of the CPT's Fourth General Report (document CPTlInf (94) 10).

25

Convention, Article 10, para. I.

26

Para. 32 of the CPT's First General Report, supra note 23.

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an additional, formal, benchmark against which visiting delegations can monitor a State's performance in implementing the Committee's recommendations. The creation of this reporting process was designed, inter alia, to enable the CPT to implement the provisions of Article 10, para. 2 of the Convention, which provides that if a State Party "fails to co-operate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter". The Explanatory Report to the Convention stresses the "importance" of this decision , which is the only one of the Committee's treaty-based powers which is in any way analogous to a sanction against a State Party to the Convention. It adds that "before using this remedy in the case of a State 's refusal to improve the situation, the Committee should pay full regard to any difficulties in the way of doing so"." Readers familiar with the inner workings of international organisations will recognise that there may indeed be many "difficulties in the way" of a human rights treaty body publicly highlighting the failings of a member State of the Organisation concerned. Chief among these is the risk of alienating the State, which may be a significant contributor to the Organisation's budget (or a strategic ally of one or more significant contributors). Such an action might also be perceived, both within and outside the Organisation as jeopardising a delicate balance between human rights considerations, and what politicians like to term "the bigger political picture" (in which trade considerations usually loom large). In consequence, the use of such a power, especially by a fairly recently-formed (and under-funded) treaty body requires a measure of courage and, in particular, the capacity to "stand up to States". In this context , it may be considered to the credit of the CPT that, little more than two years after it became fully operational, it was prepared to make use of the power set out in Article 10, para . 2 of the Convention to make a public statement on Turkey." The statement was made on the basis of the CPT's findings-in-fact during three visits to Turkey (all of which were carried out with Antonio Cassese as Head of delegation), and the Committee's consideration of a plethora of Turkish Government replies . Notwithstanding any "difficulties" which may have lain in the way of making such a statement, the CPT unequivocally concluded that "the practice of torture and other forms of severe ill-treatment of persons in police

27

Para. 74 of the Explanatory Report .

28

First Public Statement on Thrkey (CPT/lnf (93) I), 15 Dec. 1992. The CPT' s Second Public Statement on Turkey (CPTllnf (96) 34) was published on 6 December 1996.

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custody remain s widespread in Turkey and that such methods are applied to both ordinary criminal suspects and persons held under anti-terrorism provisions'V? b) Resources Cassese's tenure as President of the CPT was also characterised by a sustained effort to consolidate the human and budgetary resources available to enable the Committee to carry out, and follow-up, its visits. As regards, more particularly, human resource s, it should be stressed that, while members of the Committee attend plenary sessions in Strasbourg three times a year, and may participate in one or two visits annually, the remaining burden of planning visits, preparing first drafts of visit reports and managing the follow-up process falls squarely upon the CPT's Strasbourg-based Secretariat of Council of Europe officials. As President of the CPT, Cassese proved an indefatigabl e lobbyist for additional resources, both at the level of the Organisation's Secretary General (who has responsibility for drawing up the Council of Europe's draft budget) and before the Committee of Ministers (which considers and adopts the budget). The CPT undoubt edly benefited from the excellent relation s which Cassese enjoyed with the then Secretary General , Catherin e Lalumiere.v who became an ardent supporter of its early work. Cassese's efforts to convince the Organi sation 's Committee of Ministers to be similarly supportive were rewarded with an invitation to address the Mini sters' Deputies during a formal hearing, an event which has become an annual fixture in the diaries of successive CPT Presidents. Cassese was equally happy to engage in less formal lobbying for resources (and to encourage the more diplomatically adroit among the CPT 's member ship to do likewise), to such an extent that - by the end of his Presidency - there was no basis on which any of the Ambas sadors accredited to the Council of Europe could reasonably claim ignorance of the Committee's human and budgetary needs.

C. Some core qualities of the effective accountability builder

Steiner and Alston have described the CPT as being "far more innovative and intrusive in its approach" than other mechanisms operating in this field." The same

29

Para. 2 1 of the CPT 's First Public Statement on Turkey, supra note 28.

30

Secretary General of the Council of Europe from I June 1989 to 3 1 May 1994.

31

H.J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals, (2nd Edition, Oxford, OUP, 2000) , at p. 795.

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words could very wel1be applied to Antonio Cassese himself who, in the experience of the authors, combines a ceaseless ferment of ideas with apparently endless energy. To these qualities, Cassese adds personal courage , including a demonstrated capacity to stand up to States and other powerful interests , diplomatic skills, and an acute sense of the potential of international human rights law to operate as a force for good in eminently practical ways. Taken together, this bundle of ski11s could be seen as a working template for the core qualities which ought to be required of those who seek to build effective human right accountability mechanisms. Consequently, however much he may be enjoying his sojourn amongst the Florentine cloisters, the authors harbour the hope that Cassese might yet, one day, be tempted to return to the fray ...

III. MONITORING: THEN WHAT? It seems entirely appropriate, in a volume such as this, to highlight Antonio Cassese's very considerable contribution to the early work of the European Committee for the Prevention of Torture. However, as already indicated, the authors also wish to take the opportunity to place it in perspective, as a contribution to the "work in progress" of turning the CPT into an effective human rights accountability mechanism. In the years since Cassese's departure, the CPT 's work under the Convention has frequently been lauded by academics and others . Morgan and Evans, for example, have characterised it as "a considerable innovation in international human rights protection [.. .] the Convention is not merely seen practical1y to work: no one in Europe rejects it" .32 It seems to be widely accepted that the Comm ittee has become an effective human rights monitoring mechanism. Nevertheless, both of the authors have recently had occasion to ponder whether this alone is sufficient to entitle the CPT to regard itself as an effective accountability mechanism." For,

32

33

M. Evans, and R. Morgan, Preventing Torture: A Study of the European Committee for the Prevention of Torture (Oxford, Clarendon, 1998) at p. 381. See P.-H.- Imbert , 'Complementarity of Mechanisms within the Council of Europe : Perspec tives of the Directorate of Human Rights ' , and M. Kelly, 'Complementarity of Mechanisms within the Council of Europe: Perspectives from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment' in Vol. 21, No.8 Human Rights Law Journal at, respectively, pp. 292-295 and 301-306.

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"however effectiv e a monitoring body may be [. .. ] monitoring is not an end in itself. If monitoring is to be credible, it must be linked to an effect ive means of ensuring that States implement measures to rectify the problems which monitoring identifies"." Regrettably, there is ample evidence that such means do not yet exist within the Council of Europe. Topical examples can be found in the Organisation's response to the CPT's findings regarding ill-treatment by law-enforcement officials in Turkey and in the Russian Federation. As regards Turkey, reference has already been made to the CPT 's two public statements, each of which presented clear evidence of the practice of torture of persons held in police custody. Further, following the decision of the Turkish Government to publi sh material concerning the CPT's visits to Turkey in 1999 and 2000 , it is also public knowledge that, during a visit to the Anti-Terror Department at Istanbul Police Headquarters in February 1999, many of the detainees alleged that they had been subjected to various forms of torture and ill-treatment at the hands of police officers . The allegations concerned, in particular, prolonged standing, blows to the body, squeezing of the genitals and suspension by the arms; a few allegations were also heard of the infliction of electric shocks. In other words, the panoply of methods of illtreatment alleged was much the same as that encountered during previous CPT visits to this police establishment. Certain of the persons alleging illtreatment were found on examination by medical members of the delegation to display marks or conditions which were con sistent with their allegations ." The preliminary observations made by the CPT 's delegation after the 2000 visit to Turkey suggest that resort to the most severe methods of physical ill-treatment encountered in the past by CPT delegations - for example, suspension by the arms and the infliction of electric shocks - has diminished in recent times in the Istanbul area [. .. ] However, it would appear that resort to methods such as deprivation of sleep over periods of days, prolonged standing, and threats to harm the detainee and/or his family remain commonplace, for example in the Anti-Terror Department at Istanbul Police Headquarters. Further, in the light of both medi cal reports gathered and interviews with prisoners, the delegation has strong

34

M. Kelly, ibid., at p. 305.

35

Para. 9 of document CPT/Inf (2000) 17.

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reason to believe that persons held in the Narcoti cs Section at Istanbul Police Headquarters are still on occasion beaten and sprayed with cold water. Moreover, the informati on gathered indicates that persons suspected of offences against property - such as theft and fraud - are still at risk of being beaten on the soles of their feet and/or their hands in the course of questioning. Allegations of falaka were heard in relation to both district police establishment s and the Law and Order Department at Istanbul Police Headquarters." The publication of these findings has produced no discernable political reaction within the Council of Europe . In particular, it has given rise to little if any debate in the Parliam entary Assembly, and no tangible action been taken against Turkey at the level of the Committee of Ministers. Turning to the Russian Federation, within the last year, the CPT has carried out three visits to the North Causasian region and, more specifically, to the Chernokozovo detention facility in the Chechen Republic. The Russian authorities authorised the publication of observations made by the CPT delegation which carried out the first such visit, in FebruarylMarch 2000. According to those observations, the information gathered by the delegation strongly indicate s that many persons detained at Chernoko zovo were physically ill-treated in the establishment during the period Decemb er 1999 to early February 2000 . In different locations, the delegation has interviewed individu ally and in private a considerable number of persons who were held at Chernokozovo during that period . A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usuall y when prisoners were taken to an investigator's room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physicall y ill-treated in the investigators' rooms. Investigators were said to have been fully aware of the ill treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegati on has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned."

36

Document CPTlInf (2000) 19.

37

See the appendix to the CPT's press release of 3 April 2000 .

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It added that it was

of crucial importance, in the interests of the prevention of ill-treatment, for what happened in the establishment during the period December 1999 to early February 2000 to be the subject of a thorough and independent inquiry and for appropriate sanctions to be imposed on those responsible for ill-treatment." The CPT carried out a second visit to the North Caucasian region in April 2000 ; however, the Russian authorities have not authorised the publication of the observations made at the end of that visit. Some two weeks after that visit, the Organisation's Committee of Ministers held its 106th Session in Strasbourg. In the press communique issued at the end of that session, the Ministers "welcomed [. . .] the fact that delegations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had just paid two visits to the North Caucasus and had visited a number of places of detention in the Chechen Republic, including in Chernokozovo. In particular, the Ministers welcomed the publication of the preliminary observations made by the delegation which carried out the first visit" . However, their communique made no reference to the CPT's call for a thorough and independent inquiry into events at Chernokozovo, nor did it call upon the Russian authorities to authorise publication of the observations made by the CPT's delegation at the end of its second visit to the region." The decision of the Russian authorities not to publish the observations made at the end of the CPT's third visit to the Chechen Republic (March 2001) was met with silence by the Committee of Ministers. Given the existing framework of intra-institutional relationships within the Council of Europe, the most straightforward remedy for these failings would be "the exercise of political responsibilities by the Committee of Ministers and governments of member States [. ..] the fundamental responsibility of the Committee of Ministers as a political organ of an international organisation founded on the common values of human rights, democracy and the rule of law, and [.. .] the responsibilities of the governments of states as members of this organisation". 40 However,

38

Ibid.

39

CMlPress (2000) I (unclassified), 16 May 2000. For a more detailed critique of the inactivity of the Committee of Ministers during this phase of the conflict in the Chechen Republic see S. Magennis, An Audit a/Compliance with International Human Rights Standards, (Dublin, Amne sty International, 2(01), at pp. 65-73 .

40

P.-H. Imbert, supra note 33, at p. 295.

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as matters stand, even the most ardent legalists must reluctantly concede that, in an intergovernmental organisation such as the Council of Europe , "realist" considerations tend to mitigate against effective action being taken at a politicalleveI. The question therefore arises as to whether the CPT itself - as a monitoring body with a distinctive status in international human rights law - could be doing more to ensure that its recommendations are implemented by States. In the view of the authors, there are at least three areas in which additional efforts by the CPT might well bear fruit: the management of end-of-visit observations; press and public relations and co-operation with other international organisations. The publication ofobservations made by CPT delegations at the end of visits is a relatively recent phenomenon. Interestingly, in the light of the above-mentioned examples, it has happened on only four occasions: thrice at the request of Turkey, and once at the request of the Russian Federation. In the view of the authors, the CPT may have a strategic interest in gently encouraging all States to publish its delegations' end-of-visit observations on a systematic basis. Given that the vast majority of the visit reports drawn up by the Committee are eventually published , it is conceivable that many States would see no objection to such a measure . The publication of a delegation's observations in the period immediately following a visit by the Committee could well lend extra momentum to the process of remedying defects identified by the delegation. Moreover, if the publication of end-ofvisit observations were to become the norm, it could become untenable for a State to request the publication of observations perceived as advantageous, while suppressing those considered more damning . Press and public relations is another area in which the CPT 's performance could conceivably be enhanced. The Committee has already made considerable strides in this direction, from an original stance of regarding the press as virtually an enemy (the First General Report refers to the Committee taking action to "tackle the problem of the media?") to the organisation of an event to celebrate the Committee's 10th anniversary which was expressly designed to solicit positive media attention (and which succeeded in securing extensive coverage on television, radio and in print) ."

41 42

Para. 80 of document CPT/lnf (91) 3. The programme of the event - the Prevention of Torture at the Dawn of the New Millenium - remains availahle on the CPT 's website , at the following addre ss: http://www.cpt.coe.intl mIlIO/prog-en .htm.

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Of course, unless a State authori ses the publication of end-of-visit observation s and/or a visit report , the CPT is not entitled to breach the confidentiality which surrounds a visit; however, once material concerning a visit enters the public domain, more could be done to ensure that its impact is maximised. The press release issued after the CPT ' s most recent visit to Turkey (April 2001), which resemble s an "open letter" to the Turkish authoritie s, is an interesting example of innovation in this area. More generall y, the authors consider that the time is ripe for the Committee to benefit from its own distinctive media strategy, with a view to harnessing the forces of public opinion to the implementation of its recommendation s. Finally, given that it is doubtful whether other sectors of the Council of Europe can marshal the political will (or the budgetary means) to assist in the implementation of the CPT's recommendations, enhanced co-ope ration between the Committee and other international organisations might provide a more viable alternative. The findings-in-fact of a monitoring body such as the CPT could be a valuable resource for a number of international organisations which, for their own purposes, seek to assess the human rights climate in countrie s in which they have an interest. For example, in the context of the possible accession of new member States, the European Union might find much of interest in the CPT 's visit reports. Similarly, when compiling assessments of the "good governan ce" of borrower nations, the World Bank might discover useful material among the CPT' s descriptions of the situation in certain Council of Europe member States. In principle , the CPT's published reports are already freely available to any institutional reader ; however, more could be done to identify key interlocutors in other international organisations and to ensure that, in a targeted fashion, they are made aware of the CPT 's most pertinent published findings. One potential benefit of such an arrangement is that it could multiply the institutional leverage applied to encourage States to implement CPT recommendations. Another possible advantage is that certain organisations - and, in particular, the European Union - might be encouraged to assist in the financing of the Committee's recommendations. The CPT itself has alluded to this latter possibility, stating that it "is keen to explore the idea of developing channels through which certain of its recommendations with substantial financial implications - in particular those relating to a country's infrastructure - could be submitted for the consideration of international organisations which may have the requisite funds at their disposal";" serious thought should now be given to the development of an inter-

4)

Para. 23 of the Eighth General Report, document CPTlInf (98) 12.

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institutional mechanism with the specific aim of buttressing the implementation of the CPT's recommendations in this way.

*** The history of the CPT, under the presidencies of Antonio Cassese and his succes sors, has been one of constant innovation. Crafting an effective human rights monitoring mechanism from the skeletal framework set out in the European Convention for the Prevention of Torture has been a major achievement, for which great credit is also due to the Committee's first and only Executive Secretary, Trevor Stevens and his colleagues in the CPT's Secretariat. However, if the Committee is to comply with its own guiding maxim to "extend the widest possible protection against abuses, whether physical or mental";" then more must be done to ensure that its recommendations are actually being implemented in Council of Europe member States . The authors hope that at least certain of the ideas set out above may make their own modest contribution to the "work in progress" of attempting to turn a valued monitoring body into a truly effective human rights accountability mechanism.

44

Quotation from the 1979 United Nations Code of conduct for law enforcement officials as well as from the 1988 Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, both adopted by the General Assembly, cited with approval by the CPT in the prefaces to its first reports to States .

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THE WORK OF THE INTERNATIONAL BAR Sir Robert Jennings

The International Court of Justice (ICJ) now has almost a bigger case list than it can manage, and there is more international arbitration of many different kinds going on than ever before, not least under the organisation of institutions such as the PCA, ICSID, the ICC and the like. Since Professor Cassese has several times shown himself not only to be an outstanding scholar and judge but also a highly effective advocate, it seems not unfitting in this tribute to look generally at the work of those who are called upon to act as counsel before international tribunals . Although there is quite a literature already on the subject of how the international bench looks from the point of view of the advocates , there is relatively little on how the advocates look from the bench, which is rather the point of view of the present essay.' There is no doubt that the quality of the advocacy before an international tribunal is a crucial part of the process of the administration of justice. The reason is that these tribunals employ an adversarial procedure which by definition assumes that the arguments matter a great deal, and that what was said in argument will be reflected in the content and the structure of the eventual decision. Nor is this merely theoretical. Those who sit on the bench of an international tribunal cannot but be aware of how much they depend upon good and adequate arguments being presented, not just to them, but before them; for it is the oral argument, when both

I

It should be made clear at the outset that the ideas here set out arc derived from the writer 's own experience in the International Court of Justice and in ad hoc arbitrations. He has had no experience of international criminal tribunals such as the Hague Tribunal dealing with the former Yugoslavia, where many of the problems are manifestly in important respects quite different and of which Professor Cassese has had a probably unsurpassed experience.

L.C. Vohrah et al. (eds.), Man 's Inhum anity to Man, 443-466 ©2003 Kluwer Law International. Printed in the Netherlands.

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parties are present and confronting each other as well as the court , that is usually especially helpful and often enlightening, and which can sometimes subtly change the shape and direction of a case in a way that may be beyond the reach of the mere distant exchanges of written pleadings.

I. THE INTERNATIONAL BAR AT THE PRESENT TIME There is no lack of persons willing and probably eager to appear before international tribunals, for the rewards, financial and other, are attractive . And there is an effective filter for ensuring reasonable quality because normally the only way one can get to appear before any international tribunal is to be chosen as counsel by a litigant who will surely be aware of the importance of his case being explained and argued by someone with the necessary knowledge , skill and experience. Moreover, in an established court like the ICl, there is to some extent a built-in safeguard of professional standards because the contentious cases are all between governments who naturally tend to rely upon their legal advisers or law officers to take the lead in organising the team, and who will often , though by no means always, themselves have had useful experience in these matters. That is all very well for the developed State, which will probably have that sort of experienced assistance already in place and at its disposal. But many poorer litigant States do not have persons in their domestic legal teams who have the required training in international law or who have had the necessary experience, or can be spared from their other and proper work. Such States often feel therefore that they have little choice but to recruit counsel from other countries; counsel who can work quickly and easily in one of the two languages of the Court and who will preferably already have had considerable experience of the peculiar require ments of this kind of work. One result of this, at least in the ICl, is well known : that the judges can confidently expect to see mostly the same faces in the principal places on the benches of counsel, whatever the geographical or political provenance of the case . In this sense there is already therefore an informal international bar in existence, though it is sometimes one in some danger of appearing to be a small club of the more familiar names . The judges can therefore often make a good guess at the names of leading counsel even before the list of names is provided; and the only question remaining may well be just to learn on which side they will respectively appear. Yet it cannot be regarded as wholly satisfactory that the principal membership of that nucleus of an international bar, at least of that part of the bar that provides most leading counsel before the World Court, is of so few members . This may be

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partly because the great increase in the number of cases before the World Court is a fairly recent development. Previously the cases were so few and far between that correspondingly few counsel were required and it could be that the list of favoured leading counsel has been relatively slow to respond to the increase of available work. This observation would also apply probably to those taking part in ad hoc international arbitrations, and also before the several other permanent tribunals and courts. For the expansion of work in this field too has been relatively recent; and furthermore those well-known faces that appear before the World Court are also most of them equally well-known in these other fora. There is also another factor. Most if not all of the cases that come before international tribunals and courts are of considerable importance at least to the governments involved. Accordingly governments tend to insist on being represented in court by counsel who have appeared before the chosen tribunal or court at least once before, and preferably several times. This means that it is not easy for wouldbe counsel to find a way of being permitted to do it for the first time. Nevertheless one must not be misled by the appearance of things in court . The counsel who address the court may appear to be doing all the work, but a great deal will have been done in the back rooms by junior assistants or counselor civil servants; and that work provides a good way for some of those with less experience to get a look in, especially in very big cases, where a great deal of such work is involved, and this is a very good way of learning the job and getting valuable experience.

II. WHAT CHANGES WOULD BE NEEDED FOR A MORE ORGANISED AND STRUCTURED INTERNATIONAL BAR? An international bar, if it were organised along the lines of a typical national bar, would, one supposes, involve the creation of some sort of structured organisation along guild lines with a procedure governing and restricting membership, and with some safeguards of quality standards and discipline , and perhaps schemes for training. It could hardly, however, have a monopoly of work, and the degree of exclusivity that most domestic bars do have, where one normally has to be a member of the local bar in order to be permitted to plead at all in the local courts . This sort of more or less restricted international bar would also entail problems of finance, of subscriptions to pay for an organisation; and at least some degree of bureaucracy ; and these costs would as usual ultimately fall on the client, that is to say the litigating governments or private parties. The establishment of such an institution or organisation seems hardly possible in the foreseeable future, even supposing it to be desirable or useful. Nevertheless

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if some leading counsel could find the energy and spare time to create an unofficial and voluntary association, this might be possible (there has been no lack of tentative proposals of this sort). There are of course already such organi sations for lawyers with a practical interest in arbitrations. Another promi sing line of action would be for dom estic bar asso ciations - or at least some of them - to take a greater interest in the work before international courts and tribunals and to form branch associations for interested members (this happens it is believed, in the American Bar Association). There is much to be said for any method that would get more practising counsel of wide experience involved in the work before international tribunals. There is a great deal of such work at the present time. It is not, however, the aim of this writer to attempt any kind of detailed investigation of the possible organi sational problems of the international bar, but rather to ask what sort of qualitie s one would hope to find in members of an international bar, however it be organ ised or not organi sed; and to discu ss what is involved in at least maintaining the present standards which , it must be said, are very high and probably a good deal higher than the general standard to be found in many domestic courts.

III. THE Q UALIFICATIONS NEEDED IN CO UNSEL APPEARI NG BEFOR E INTERNATIONAL TRIB UNALS A particular problem th at w ill arise in so me cases is th at of lan guage . In the Ie] th e

working languages are, as laid down by the Statute, Engli sh and French, and since both languages are always to be used in all cases, including all the decision s of the Court, it is useful , even given the con stant availability of interpretation and translation, if counsel working in one of the languages have also at least a passive knowledge of the other. Agreements for an international arbitration usually specify the working language of a case, sometimes a single language or sometimes two . The main pitfall to be aware of - apart from the elementary matter that it is important that both the judges and counsel on both sides should know what has been said with some accuracy - is the great cost of providing simultaneous interpretation during the oral pleadings, and the great cost , in time as well as of money, of routine translation of written pleadings and documents; and also the difficulty it must be said of ensuring that an interpretation, or a tran slation, is accurate and of good quality, and preferably reasonably plea sant to read. In the World Court most of the translation costs and all of the simultaneous interpretation costs are provided from the Court's own budget. But in ad hoc arbitrations these costs can be co nsiderable, so there is

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every reason to have where possible counsel on both sides working in a single language. The language requirements inescapably mean that the list of possible candidates for appointment as counsel in a given case is reduced drastically, for one generally needs counsel who are native speakers of the chosen forensic language or who are virtually or actually bilingual. This no doubt gives an unfair but inescapable advantage to would-be counsel who can work in one of the major languages. Another restricting factor is that, except perhaps for some questions of fact, which might lend themselves to separate treatment, or occasionally for some particular highly specialised legal question where an expert may be required, it is essential to find advocates who are thoroughly acquainted with the principles and rules of public international law, and in some cases possibly also with private international law; and advocates moreover who have had at least some experience of the procedures and practices of international tribunals. These considerations again much reduce the list of names to be considered. A member of the bench who is not trained as an international lawyer, if already a good and experienced lawyer, can probably pick up a useful amount of the relevant international law in the course of a well-argued case . There has been no shortage of judges of the IC] who, on appointment, knew very little international law but who became quite quickly respected authorities on the subject. It is entirely different for an advocate, who must, at the very outset of any case in which he or she hopes to be able to playa useful role, already have an intimate knowledge of international law, and also have had some experience of working before an international tribunal. There is, however, another possible requirement where the necessary legal qualifications sometimes need to be suited to a particular case, or to the chosen way of pleading it. The system of public international law, and even to some extent of private international law, means that, for the purposes of the substantive legal argument, there is the common international legal working language of international law itself. There may well be differences of view about the principles and rules of international law - as happens in all systems of law - but international law is a common system at least in the sense that different points of view can be expressed and perfectly well understood even between opponents . To a large extent therefore it makes little difference if, for instance, judges working together, as of course they do on the bench of the IC], come from very different domestic legal systems. Therefore those coming from a common law background and those coming from a civil law background, though the approach may be different, usually find no technical difficulty in working together on questions of public international law.

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But there is one aspect of some international legal cases in which a common international law language seems conspicuously to be lacking, and that is in respect of the radically different methods and traditions of finding and testing facts and alleged facts. There are two well-recognised systems for doing this even in the west, the common law one and the civil law one; and these two ways of tackling the problem are very different. These practical as well as theoretical differences may be crucial in cases which tum on an appreciation of the facts, if only because international law - which ought to provide a common understanding on this as on other legal questions - has very little to say about methods of establishing the facts in a case. The differences between the common law and the civil law approaches on this matter have arisen to a large extent because the common law was historically designed for trial by jury and many of the procedural rules and the rules of evidence have been shaped to suit jury trial. Where there is a jury it is the jury, and not the judge, that decides questions of fact. The judge decides the law and instructs the jury on the law, but it is the jury alone which decides the questions of fact. This meant, in the common law system, that the arguing, questioning and the testing of allegations of fact must be done in open court and in the presence of the jury. Hence the common law tradition of testing allegations of fact, and the probity of witnesses to fact, in more or less long examination and cross-examination sessions during the actual trial. It is true that in the modem common law courts there is no longer a jury for civil , as opposed to the more serious criminal, cases other than in defamation cases. But procedures have, as always , long outlived their historical reasons . In the civil law system , without ajury, there has not been the same need to have everything of importance concerning questions of fact and evidence of fact happen in court at what a common lawyer calls "the trial" (a quite different concept from the civil law "proces" by which trial tends wrongly to be translated). Accordingly in the civil law system there has been, and still is, another and often more convenient possibility of inquiring into allegations of fact before the proceedings which common lawyers would call the trial. This civil law way of doing things was essentially the system preferred and used by the K'J, with great success, in its first case, the Corfu Channel case, where very important and quite specific questions of fact, which had been devised by the Court, were then put by the Court to a special Committee of neutral maritime experts, appointed by the Court, and who met separately and independently, visited the site, decided under their own chairman on the texts of the answers to the questions, and reported through their chairman to the Court, and all this well before what the common lawyer calls

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"the trial" , that is to say, in terms of IC] procedures, before the oral proceedings

began." This matter of appointing experts also illustrates another crucial difference between the two systems, the common law and the civil law. In the civil law system the expert witness is appointed by the court itself (as indeed the Committee of experts was so appointed by the IC] in the Corfu Channel case) to advise the court on a matter requiring expert knowledge and skill. Such expert or experts may be set to work independently and to report to, and be answerable to, the judge or judges. It is indeed usual for the IC] to appoint an expert adviser to work with the judges in highly technical matters such as hydrography or cartography (see Article 66 of the Rules of Court). But in the common law system each party will appoint its own expert witnesses; and since experts often rather dramatise in their own minds their part in a trial, and almost unavoidably get involved in the merits of the dispute, this system tends to provide the sorry spectacle of rival experts, or groups of experts, each prepared to give evidence upon oath of opposed and partisan views about the very subject matter of their expertise. But the most obvious difference between the two systems is the well-known one that, in the common law system, the examination, cross-examination and possibly re-examination of any witness, whether an expert or just an ordinary witness to facts, is the task of counsel at the trial. The counsel who calls the witness examines him or her: that is to say asks questions designed to elicit the facts to which the witness is able to testify. But the counsel who "called" (produced) the witness is not allowed to ask " leading questions", that is questions which suggest the desired answer. The opponent's counsel will then cross-examine, i.e., ask questions designed to test the validity of the witness's evidence. The cross-examination of a witness, whether expert witness or just an ordinary witness to certain facts, can be, when skilfully conducted, an effective and even revealing test when performed by experienced counsel. After the cross-examination, then the counsel who "called" the witness may, if he or she wishes, "re-examine", perhaps in an attempt to repair some of the damage done in the cross-examination or perhaps to emphasise an aspect of the evidence which that side considers important.

2

SeetheOrderof theCourtof t7 December 1948, in IC] Rep. 1947-1948, p. 124, setting out 8 specific questions on which the Committee of Experts wereto report theiranswers to the Court and in doing so should "bear in mind that their task is not to prepare a scientific or technical statement of the problems involved, butto giveto theCourt a precise andconcrete opinion upon the points submitted to them".

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This common law art of questioning in examination and cross-examination of a witness is one of those skills which can only be learned by doing it. It is, one may say with conviction, not one that the academics and professors of international law who so often plead in the ICJ would be well advised to attempt. The few times it has been attempted have not shown the professors at their best. Good cross-examination has indeed happened in the ICJ but that has been only when a party has been wise enough to include in its team some experienced and proven practising counsel, often not an international lawyer at all, but who is used to dealing with witnesses and with the art of examination and of cross-examination. A large proportion of the cases in the ICJ are about questions of pure law and the question of evidence and fact does not arise; or is not crucial to the decision of the court. But there are others where it certainly does arise. The Nicaragua v. The United States case' was one such, as nobody who has read the dissenting opinion of Judge Schwebel could fail to be aware. In that case unfortunately neither the common law method nor the civil law method was used either at or before the trial, and the Court itself undertook the task of deciding questions of fact during its deliberation and presumably on the basis of such evidence as was proffered during the oral proceedings. The Court in that case was of course in the unhappy position where the defendant party, the United States of America, had decided not to appear. Had it appeared there would doubtless have been a common law crossexamination of witnesses by experienced and able counsel. As things were, however, evidence was given against the United States and the witnesses escaped any possibility of cross-examination. The method probably inevitably employed by the Court placed in this very unsatisfactory situation , was that it was, in this situation at least, for the Court itself to assess and decide on the relevant facts in course of its own deliberations, of course after the oral hearings had been completed. The Judgment of the Court does indeed provide several impressive and very quotable pronouncements on the principles governing the finding and assessment of questions of fact; pronouncements presumably devised by the drafting committee. This was, however, though not the fault of the Court but rather of the respondent, an inadequate and unsatisfactory method of dealing with facts when judged according to either of the traditional methods of the common law or of the civil law. For according to either of those two system s, the principal procedures for the testing of allegation s and witnesses of fact, will have been done and the results

3

See IeJ Rep. 1984, p. 392 at p. 558.

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made available to the court well before the court enters upon its deliberation and drafting phases . Certainly the Court, under either or indeed any system, must, in its deliberation, make the final decision about relevant facts but that is not a suitable stage for the testing and proving of the evidence, long after the witnesses have departed. One need only think how absurd it would have been if the Court in the Corfu Channel case had left the assessment of crucial facts to the final deliberation, basing that assessment only upon what the parties have respectively averred in their arguments , and without the benefit of that definitive factual report of the Committee of experts which had been appointed by the Court for that purpose. So on questions of fact the IC] at least seems to exist in a kind of limbo. It might follow the civil law system as in the Corfu Channel case (but seems not to have done so subsequently); or the common law system, to which the stage of crossexamination is vital, may be followed if it so happens that at least one of the parties before the Court has had the wit to appoint a counsel who can effectively cross-examine a witness. So this potentially serious ambivalence in the IC] procedures on questions of fact is one to be borne very much in mind by parties when choosing counsel .' If the investigation and testing is to be done in court by the common law method (as it might well be if the Court is not minded to employ, as in the Corfu Channel case, something along the lines of the alternative civil law method of establishing essential facts), then it is eminently desirable - one might indeed say essential- to have at least one counsel who is already a member of a domestic common law professional bar and experienced in dealing with witnesses to fact by the common law method, including the examination or cross-examination of any expert witnesses . Such a person will need both experience and a great deal of self-confidence; for the judges who are not from the common law and do not understand the method which may take quite a long time, and may be very boring and sometimes appear quite pointless to those who have had no experience of it - may become very impatient of what might seem to them an inexplicable waste of time by counsel. But the method when well done can produce impressive and sometimes decisive results . There is not usually a like problem about these different systems in arbitrations, and especially in commercial arbitrations, where the counsel are frequently prac-

4

Again it should be emphasised that the present writer is not qualified to comment on the practice of the international criminal courts in their dealing with evidence . Obviously it is a matter which is crucial in those courts. One's impression is that it is the common law which has had the more influence in the tribunal for the former Yugoslavia.

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tising counsel rather than professors who sometimes practise, and where the parties will probably have had either the need for skilful cross-examination of witnesses in mind or will have devised, with the help of the tribunal, some other way of investigating disputed facts.

IV. THE NATURE AND PURPOSE OF WRITTEN PLEADINGS IN THE DIFFERENT LEGAL TRADITIONS

There is another matter where the common law and the civil law traditions differ and which may sometimes be important to understand in relation to international tribunals and for the selection of counsel. In the traditional common law system, the written pleadings in the case were not employed to serve the purpose of setting out the legal arguments about the principal issues in the case . They dealt princi pally with questions of procedure, the issues involved , and evidence and fact rather than with the substantive legal arguments in the case. It used indeed to be quite contrary to traditional common law pleading to provide anything in the way of even a skeleton legal argument at the written pleadings stage. The basic notion was again that anything of that importance must be done at the trial in open court. This system has broken down somewhat in recent years. The House of Lords, the final court of appeal, has now long required a written statement of the expected lines of argument; and this good and useful change has been seeping down to some of the lower courts. Even so, the nature and purposes of common law written pleadings no doubt seem strange to those trained in a different tradition . The written pleadings before the IC] and other international tribunals provide a full and elaborately documented legal argument over the principal issues, often in two distinct but cumulative stages of the exchanges between the parties , with copies to the Court, of memorial and counter-memorial and then of reply and rejoinder. But there are some aspects of the traditional preparation of cases in the common law which could in practical terms be very useful in international tribunals (and are actually used, if only out of habit, in some commercial arbitrations when the place of arbitration is London and the lawyers involved tend to be much influenced by the practices of the London Commercial Court). A part of this process that would to a large extent be an innovation in most international cases is the notion that the written pleadings stage might be used to get some preliminary aspects of the case properly, or at any rate better, organised by the parties themselves before it goes before the court or tribunal. This necessarily calls for constant communication and even cooperation between the lawyers of

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both parties; i.e., in the common law system, mainly between the briefing solicitors on both sides. For example , it is assumed that there will be a joint and earnest endeavour even at this early stage to get from both parties a list of the issues which divide the parties, and moreover, as far as possible , an agreed list at any rate of the main issues which divide the parties. Considering how much time the ICJ and other international tribunals nearly always have to spend at a much later stage deciding what the issues in the case are, there is much to be said for having the parties make some effort to tackle it, even at the earliest stage. This preliminary written pleadings stage can also be used - has to be used in the common law system - to get some agreed basis for the later examination and testing of facts and for dealing with evidence whether of fact or of expert witnesses. There is therefore an examination by each party of the sufficiency or completeness of the evidence materials that the other has submitted in the written pleadings as being relevant to the case. Where one party is not satisfied that everything has been stated that needs to be stated, or has a feeling that the stated evidence is insufficient to support what is sought to be inferred from it, then a request is made by a formal letter, probably with a copy for the tribunal, requesting "further and better particulars" in respect of that matter. These further and better particulars of the evidence materials and documents mayor may not be supplied, but there is in either event useful pressure on a party at least to endeavour to comply with the request. And the request for further and better particulars, if not satisfied, can be backed, and often is backed as a matter of course , with threats to go if necessary to the court or tribunal asking for, and arguing for, an order of the court requiring the production of further and better particulars. Such a court order no doubt has less force in a system like the international one where ultimately there is normally little or no requirement of "discovery" of documents; but even so the court or tribunal has a very powerful weapon in the possibility of damaging comment or indeed tacit inferences. Thus, even in the common law system of dealing with factual problems, there is this useful possibility, as part of the common law process of written pleadings, of trying to ensure a proper and adequate organisation of the evidence materials, before the case reaches the stage of trial. Also, in the common law system of written pleadings, there will be - should be - an agreed statement of "admissions"; that is an agreed list of the matters on which there is an admission by a party, or indeed of both parties, of certain facts. In this way, with a reasonably comprehensive list of admissions, much of the time of the court can be saved, and court time is not spent on discovering and establishing, usually a fairly long list, of allegations by either side that are, or seem to have been, "admitted" .

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These preliminary structural modifications of the case before it goes to the court, and logically even before the strictly legal argument is begun, will normally, as already mentioned, be undertaken in the common law system of pleading principally by the solicitors respectively acting for the parties, but if necessary also with the cooperation of counsel and even of senior counsel. The system does therefore assume the availability of constant communication and even constructive cooperation between the solicitors and counsel of both parties; and this stage is usually conducted by exchanges of somewhat formal letters between them but meetings are not unusual. The letters, the texts of which may have been agreed at a meeting, go onto the file of the case with, of course, copies to the judges. In these days of instant and easy communication, such preliminary close cooperation might be thought reasonable and useful even between counsel acting for governments in international arbitration cases (it might of course be difficult to reconcile such preliminary case preparations with the present Rules of the ICI). It will be said no doubt that one cannot in any event expect to adopt this kind of cooperation when dealing with sovereign States. It is time this excuse for inefficient procedures be laid to rest. For one thing sovereign States submit to this kind of procedure all the time in commercial courts where there is usually no longer a sovereign immunity in matters concerned with commercial matters. Moreover they put up with it quite happily in commercial international arbitrations when it so happens that both parties are represented by common law solicitors. Also it must be said that a lot of the former objections to requiring communication between litigants who are sovereign States were practical ones, about the difficulties and delays in getting instructions, which have disappeared as a result of the communications revolution. There is another common law practice which the writer firmly believes ought to be carried over to most, if not all, arbitrations and indeed even to the cases before the ICI; that is the practice of requiring the representatives of the parties and their counsel jointly to create a separate single bundle of documents of any kind the text of which is agreed by both parties and which will be, or may be, needed during the oral hearings in the case . In the ICI the judges, on the contrary, are now normally provided with two separate copies of virtually every important document, one having been supplied by each party. Each party makes up its own volumes of such documents, invariably arranged in quite different orders and in differently headed sections or chapters, and with different coloured bindings quite probably also of a different size from the documents supplied by the other party. This tends to be the case even with maps or charts, or treaty texts, that are already in the public domain .

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This is a cumbersome, tiresome, and utterly pointless compl ication and also an extremely costly way of proceeding. When the judge consults a document in one party's pleadings , there is usually nothing in either set of pleadings to alert him to the fact that that document also appears, or indeed perhaps more significantly does not appear, in the written pleadin gs of the other party. But the duplication of documents that are used and provided by both parties is normall y further compounded during the oral hearing. The parties then almost invariably also provide all jud ges with usually large loose-leaf files called "judges' folders", which are daily distributed or fed with supplements, which contain in the proposed order of presentation, the documents , maps or charts , which the judges may want to have in front of him or her in the course of that day 's argument from that party. These judges' folders are of course very convenient at the time; but they also mean that, by the end of the oral proceeding s, a jud ge will probably then have at the very least two extra copies of all the important documents, in addition to the two separate copie s already in the written pleadings volumes, making very likely at least four copies, and often several more, of any documents important enough to have been cited by both parties during the oral proceedings. Moreover all these copies of the same document will again be in different places, often with different references, probabl y with a absence of adequate cross-references, and arranged in different orders in different types and colours of inconvenient binders; there might or might not be references in the jud ges' folders to the place where these documents appeared even in that party' s own memorial or counter-memorial. Thi s plethora of extra copies is obviously produced only at considerable expense. It ought to be possible to improve on this expensively produced chaos even in international litigation . A considerable mitigation of the position could be achieved simply by adopting something like the common law system by which the parties' lawyers, before the trial starts, will have got together and will have produced and distributed one "bundle" of all agreed documents that are being used by both parties (it may in a large case be more than one volume ) of documents which both parties want to produce and use, and with texts that are agreed (sometimes there are disputes about translations, when the presentation of two copies is justifiable). This common bundle is convenient and efficient and relatively cheap for both judges and for counsel because, to the extent that the documents are common to both sides, there is then only one bundle of them, and this will be in the hands of everybody on either side who is concerned in the case and it can be brought into court every day of the hearing. Moreov er a judge can make personal notes on his common bundle copy of the document, knowing that a complete set of his notes, and not just the ones inspired by one party's case, will be in front of him whichever party is pleading in

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the oral hearing s; and indeed when he or she has to use the document in deliberation or in drafting stages.

V. VIS UAL AIDS

There is now a great variety of visual aids available and, in accord with the spirit of the age, they tend to be used whether they help or not. Where maps, charts and diagram s are involved it can be of great assistance if counsel can point to a large, screen-projected copy of such a document as he discusses it; always provided that counsel has a microphone on him which works at least as well and at the same volume as the microphones at the lectern. It seems now however to be generally accepted that it is useful and even essential to project onto the screen any phrase or words which are being discussed. This can again be useful where the discussion is about a given text - say a clause of a treaty - provided the members of the tribunal do not for some reason also have the text in front of them on the desk. And of course provided the discussion of the projected phrase does not result in its being discussed in isolation from its context. But the visual aid cult may now go much further than providing these aids where they are genuinely useful and even necessary. Some speakers and even counsel appear nowadays to be comfortable only if their own specially favoured sentences are projected onto the screen. Th is needless distraction can be extremely annoying to those addressed. One's attention is attracted to the screen by the change of the lighting. One reads the projected text and, at that moment realises that the projected text is only what one has j ust heard counsel saying a moment ago; but having been thus needlessly distracted, one has often complet ely missed what he was saying when one was needlessly distracted into reading the earlier and already heard and digested statement on the screen. Visual aids should be, at least in this writer 's view, used with great discretion. They easily tum into visual distractions. This is still true even when the most up-to-date technology is used and each judge or member of the tribunal has his own monitor in front of him and on which these aids duly appear. The writer remembers one case where the monitors were sizeable boxes on the desk and slightly to the left so as not to interfere with the view of the speaker at the lectern . But the result was that all the counsel sitting on the left of the court were invisible. Judge s do watch the faces of counsel even when they are not speaking. To obscure the view of judges in this way is to destroy one of the many elements that make the oral arguments different from written pleadings and make it crucial to the doing of justice. One watches counsel who are not speaking at the moment, not to try and guess at their feelings or reaction s to

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what is being said, but because looking at people is part and parcel of working together. And this working together is the core purpose of the oral proceedings. Oddly enough however the provision of computers on the desk of counsel can be a great assistance in the traditional common law art of examination and crossexamination of a witness. Counsel can for example ask a witness how he reconciles his present statement with the one he made in court, shall we say, two days ago; and then continue, "perhaps it will assist you if I read out from the computer record exactly what you then said" . This on occasion very telling technique does rather call for a junior counsel sitting and operating the computer alongside the counsel who is asking the questions . There is no reason of course why judges should not also be provided with computers - and where counsel have them they are usually also offered to the judges - but again it may be far more useful to be free to watch the proceedings and especially to watch the demeanour of the witness; and indeed of counsel.

VI. THE ORAL PRESENTATIONS It is dangerous and probably unsound to attempt to lay down the requirements for good advocacy, for to a large extent it must be a matter of temperament and culture, and people fortunately are different from each other; so that as soon as one tries to think of a desirable quality one also thinks of a counsel who manages without it and yet is very good. As in so many matters it is the outstandingly good who can afford to break the rules. The ideas of good advocacy have changed a great deal, and probably for the better, during the last few decades. The famous names of those pleading before the ICJ, and no doubt also before the pcn, were often orators of the formerly much admired kind. Their speeches could be very long. The situation was very different from the present one for they then had to pause every so often for sequential translation into "the other" of the two Court languages . Presumably it sometimes gave them the opportunity to amend what they were proposing to say next. It was, however, in every sense a performance intended to be admired as such. And it could sometimes seem even a little condescending for, like actors on the theatre stage, they assumed that for the time being they were or ought to be the cynosure of all eyes in the Great Hall of Justice . That tradition of oratory has not only gone out of fashion but has in any case been killed, not by simultaneous translation, but by the microphone. The microphone is thought to be necessary in order to get a written transcript or proces verbale if possible the same evening (there are also other ways of doing it even

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better but rather more expensive). But in any event people now expect a microphone. The trouble is that counsels sometimes seem to be preoccupied with the microphone rather than the bench . And those who do address the bench and forget about the microphone often move about as a speaker often wishes to do. This sometimes means that some passages come over very loud and some almost disappear from the earphones. A possible mitigation for the judges is then to listen instead to the translation, for the interpreters do professionally know about the proper use of microphones. The grave danger is that the use of the microphone almost inevitably results in the permanent loss of the art of projecting the voice so as to carry through a large hall. This formerly very common art is even already almost confined to singers in classical opera; and nowadays very few even of those realise the importance of the audience actually hearing the words as well as the tune. It is ominous that most of those remaining singers who can articulate clearly, at least in their own language and many of them in two or three languages, belong to a previous generation. It would be a very good move if counsel could at least learn not to drop their voices or tend to gabble when they come to the closing phrases of a sentence, and that even the best microphones cannot improve poor articulation; and to bear in mind that some judges who are not experts in the language being used may still prefer on occasion, and for various good reasons, to listen to counsel rather than the translation. It is then especially that careful articulation is heard with gratitude . Another obstacle to the oratorical variety of advocacy at the IC] , and probably in some other tribunals too, is the understandable desire of simultaneous interpreters to be provided with a manuscript of the speech the night before its intended delivery. Of course they can cope with last minute change s. But the supposed need for a basic text on the evening before delivery came at one time to be virtually imposed upon counsel almost as if it were a rule of the Court. This situation does not easily make for an attention compelling kind of speech, however skilfully the manuscript be read. At least one very eminent member of the international bar has recently dealt a splendid blow on at least one occasion for a novel arrangement by simply not having a written out speech . I am told that the simultaneous interpreters coped perfectly well by actually doing what the name of their skill implies that they can do and for which indeed they are certainly paid. Of course there is also the difficulty that sometimes the party concerned, and even counsel's own colleagues at the bar, might wish for good reasons to insist on seeing and having the chance to comment on a manuscript of what it is proposed to address to the Court .

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VII. THE STRUCTURE OF ADVOCATES' SPEECHES TO A TRIBUNAL Since the ICl in particular has, for reasons mentioned above, attracted many professors of international law - and indeed some professors in other subjects - to its bar, there is sometimes not surprisingly a tendency to lecture; a tendency not unconnected with the old notions of great oratory mentioned above. This can be misplaced because the judges are not so much looking for a comprehensive exposition of the relevant law: true they may not always know it, but at least they do know where to find it. And yet one has to qualify even this criticism of the lecture from the bar, for a really good lecture, which interests and illuminates, can be very helpful and persuasive . And professors can be very good at doing precisely this if they happen to be what all good professors of law ought to be, persons with a special gift and inclination to teach. But there are certain things which ideally the bench wants and needs and which a shrewd advocate will be astute to provide. One rule that ought to be invariable, and is one must say generally observed most faithfully, is the observance of the need for courtesy ; courtesy to the bench of course , but also and at least equally important , courtesy to one's opponents and to their case. Sarcasm is above all to be avoided . This courtesy of formal manners is of the very stuff of the adversarial forensic system of dealing with disputes . It is a principal factor needful for creating and protecting its strength and its authority. One example of good manners that ought to be invariably observed is that where counsel have been personally involved in any capacity in a previous case it is desired to cite or discuss, that previous involvement should be acknowledged at the outset of any discussion of that decision. This behaviour is more than a rule of courtesy; it is a rule of good advocacy. For the good advocate should have it always in mind that there will be certain very difficult issues of law or fact or both, which the court is going to have to decide one way or the other. In any case worth taking to a higher court there will be plausible arguments for the cases being put by both parties. It is these key issues where the judges are looking for help. A clear and sound lecture on the law involved may be a useful beginning. But the advocate who understands his or her job will rather concentrate on these difficult issues. "Assisting the Court" is a phrase that one not infrequently hears from counsel and too often it seems to mean simply assisting the court to understand the argument of that particular party. Counsel can, however, readily get the full and immediate attention of the court whenever he or she begins by acknowledging that his or her opponents have a cogent argument on one of the main issues, and that it is an argument which calls for careful and respectful consideration (though it must also be borne in mind that

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an advocate mindful to do this may find opposition from the clients) . A compliment on the way the other side has put its argument will also seldom be amiss ; not only as a courtesy but because opponents who get on well together at a personal level are much more likely between them to provide a useful argument than those who allow themselves to get caught up in some altercation which sometimes involves their appearing to be addressing each other rather than the court; a way of proceeding which is almost bound to annoy the court. The advocate who gives way to the temptation to seem to scorn the opposing arguments is not likely to get the sympathy of the judges, for they know full well that they are going to have to go through the intellectual agony of deciding what is probably a genuinely difficult question and not one with any obvious solution . The stance that is likely to appeal to a tribunal already struggling to know how to decide between two good arguments is an understanding acknowledgement of the strength and importance of the opposing argument , followed nevertheless by the clear exposition of a sound, clear and persuasive alternative course of decision ; that begins by showing that the opponents' argument and its persuasiveness are well understood and appreciated, but then providing a cogent and intellectually satisfying alternative, at least equally viable, and perhaps even more attractive, solution.

VIII . THE TIME ALLOWED FOR THE ORAL HEARING It is an interesting fact that this desirable concentration on principal issues, and on

the ones that that are probably already uppermost in the minds of the judges, can sometimes be the happy product of some restriction on the time allowed for presentations. The skilful concentration of a presentation is of course more difficult to do than the longer and more diffuse kind. It probably means drafting a much longer speech and then, probably with the assistance of other members of the team, making a somewhat severe selection of matters to be dealt with in the available time. To determine the time to be allowed for the oral hearing will never be an easy task for the court or tribunal. Most tribunals will probably follow the procedure in this matter in the IC] where the President in a preliminary meeting with the parties will collect their views on that question, and also information about the intentions and desires of the parties' agents and counsel. Many very busy courts, such as the EC] at Luxembourg and the Supreme Court of the United States are by their timetables compelled to be somewhat mean about the time allowed for oral presentation. One hopes, however, that the IC] will never be reduced to the half-hour or less allowance of time for the presentation of a case that some of these other courts

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have, by the pressures of the case list, been compelled to adopt. Most of the cases before the ICJ are of considerable importance, both legal importance and political importance, to the parties and usually also to others who are not parties . They are thus hardly ever cases, like for example the ones determined by an administrative tribunal , usually after written pleadings only, and where speed is itself important to the individuals concerned. One does of course hear complaints about the time taken by the ICJ; usually these come from counsel rather than from parties . But many of the cases which might take the Court two years or more finally to decide are ones which the parties have been failing to settle by negotiation for several decades. In that context two or even three years can appear to be almost hurried. But there is another and very important reason why counsel in the Great Hall of Justice should be allowed at any rate a reasonably adequate time for presentation. The oral presentation is not just a second or third phase tacked on to the end of the written pleadings . The presence together of the parties and their counsel in the Great Hall of Justice, and their putting their arguments both publicly (the "public" will consist at least in part of diplomatic representatives of third parties), and in the presence of each other and with, within necessary limits , a right of more or less immediate reply, is something different not in degree but in kind from the leisured exchange of written pleadings . Nearly always it results in subtle but significant modifications of the two cases presented to the Court . These changes will not usually be advertised, although they mayor may not appear in changes to the submissions made at the final hearing. But it may be no more than that a certain argument persisted in throughout the written pleadings almost ceases to be mentioned or is frankly down-graded or even openly repudiated. These changes wrought by the confrontations in court are important, not least to the Court in making its decision . It is therefore in this writer's view crucial that "improvements" in the oral presentation procedures should not be allowed to prejudice the importance and the efficacy of that essential stage of the traditional oral hearings . It is an aspect of the oral proceedings for which the old orator school of pleaders has a strong instinctive appreciation. We have spoken mainly of the ICJ; and quite other considerations may apply to other kinds of cases and other tribunals. The problems of, for example, a typical arbitration tribunal of five, or of three, or even of one arbitrator are obviously very different for questions of procedure , though what has been said about the tone of good advocacy probably applies also in these other quite different situations.

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IX . QUESTIONS FROM THE BENCH

In the matter of counsel being interrupted in mid-flow by comments , remarks or questions from the bench, there may again be an important difference between the common law tradition and other traditions ; and the way things are trending there may now already be an even greater difference between international tribunal practices and those of the domestic courts of both the civil and the common law traditions. In a common law court counsel will expect to be interrupted by judges and not only by the presiding judge. Sometimes it may be to express some doubt or scepticism about what is being said; it may be a quip; or it may often be to ask a question, perhaps of no great moment, such as a query about the order of presentation of the argument or whether a certain problem is to be tackled and when; or perhaps to ask an important question about the substance of the argument. This freedom applies in the superior courts as well as the courts below. Counsel pleading in England before the House of Lords expect to be interrupted from time to time and would probably be disappointed if they are not interrupted, for complete silence might well indicate a lack of interest. A good judge will not talk too much, and there have been appeals founded on the allegation that a judge interrupted so much as to prejudice effective advocacy. But at its best the tradition can often result in what amounts to a constructive and helpful conversation between judge and counsel. This way of doing things is easily realisable in tribunals of three or even five judges. Something may depend also upon the provenance and temperament of the presiding judge. But where a member of the tribunal is not sure that he has accurately understood a counsel's argument, it can be very useful both for that judge and the counsel on both sides, and for the other members of the tribunal, if such a matter can be got clear by a brief exchange of questions and answers at the moment when the difficulty arises. But it is certain that this method, of reasonably interrupting counsel with a question or a remark , is not a possible one in the ICI, at least when it is sitting as the full Court of normally 15 to 17 (if including ad hoc judges) members. Neverthele ss, partly no doubt because of the influence of the common law-trained judges, the practice of asking questions has developed, though in a rather new direction of its own in recent years. For the questions in the ICI necessarily cannot be in the form of momentarily inspired interrupt ions by ajudge when the spirit moves him, but are usually part of a set of questions from different sources assembled for asking somewhat formally, probably in the order of the seniority of the questioning judges, at some convenient juncture - often at the moment of normal adjournment for lunch or for the

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evening. In any event the time of asking que stion s will have been notified to the parties beforehand. Moreover, as a matter of courtesy, the questions will have been submitted by the judge in question as proposals, in writing , to the other judges and probably discussed and even changed or modified, or indeed strongly discouraged , or alternatively adopted as a question of the whole Court to be asked by the President, all this at a meeting of the Court, probably at one of the so-called coffeebreaks . After the formal asking, whether of one party or of both parties, both parties will immediately be provided with printed copies of the question or questions. The party or parties who are to answer the question will also be told that they may answer now or at some other time, and may indeed, if they prefer, answer in writing in a certain number of days time, often at a date after the end of the oral hearings. This precaution is because it is supposed that counsel might have to discuss first with the Agent and the Agent might want to get instructions from his government; a supposition which no doubt often seems very attractive to counsel. In any event the result is likely to be a written document of some length probably prepared by the whole team and sometimes rather more expansive than the question in the topics covered. It is clear enough that this way of asking questions, even though it might have been inspired by the common-law habits of asking questions, bears almost no resemblance whatever to what happens in a common law court. A formal and carefully drafted question vetted by the whole court and asked formally during a time set aside for the purpose, is utterly different from the common law institution of what often amounts to an informal conversation between counsel and judge. Sometimes , even so, the IC] type of question and answer may excite a reply on some matter or aspect of the case which has not been sufficiently, or sufficiently clearly, dealt with and this may be valuable. But many of the questions asked are ones where the answers that will eventually be given by a party are wholly predictable; and in such cases - probably the majority - the asking of the que stion amounts to a waste of time and costs . Some of the discussions in the Court of draft questions reveal some surprising differences of attitude . Some judges are even shocked if a question might be thought to reveal which way the questioning judge's mind is tending in the case (though one might be cautious about such an assumption in a common law court where a judge might ask a question rather to tease and test a counsel than to reveal his own mind). Others would think that this, if it is true, serves a very useful purpose for counsel on both sides, and this is certainly the feeling about one common purpose of questions in a common law court. It is better for counsel to know at that point which way a judge seems to be thinking than to be able only to make a guess too

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late when the final decision of the Court is handed down. This might also be a matter of temperament as well as tradition . This matter of the place and usefulness of questions from the bench is a puzzling one and there is room for many opinions about it. But one lesson for the purposes of the present paper is that a common law-trained barrister who is told, as he probably will be, that the IC] nowadays, because of common law influences, often asks questions, should also be told that the system that has developed bears almost no relation whatever to what is understood about questions in a common law court . Needless to say these peculiarities belong inevitably to the IC] and to any other courts of round about 15 or more members. Again, in an arbitration before a tribunal of probably not more than five, there is no reason why members of the tribunal should not ask questions and engage in brief conversations with an advocate , subject of course to the control of the presiding judge. It is usual therefore for a judge in such a tribunal, wishing to ask a question, to observe the normal courtesy of signalling his or her intention to the presiding judge and getting that judge's nod of approval. If the conversation between advocate and a member of the tribunal threatens to become an unreasonable interruption, or the two protagonists seem to be in danger of forgetting that there are also other people present, then it is up to the presiding judge to put a stop to it. Certainly the impression of the present writer about such questions in a small court, which can easily replicate the atmosphere of a common law court, is that it can be a most valuable aspect of the oral hearings stage of an arbitration .

X. CONCLUSIONS 1. There should be no room for doubt about the need for an international bar of advocates of the top class. The culminating confrontation in the oral proceedings before the tribunal, and in the presence of each other, and in public, of opposing argumentation is intrinsic to an authoritative decision of an important case by the adversarial process. It is every bit as important to have good counsel as to have good judges. 2. As most if not all States with a developed judicial system have found it beneficial to have some organisation of the bar to ensure standards of skill and integrity and to protect the interests of the bar, it is reasonable to suppose that some formal institutionalisation of the international bar might be similarly beneficial. But there are grave difficulties: the great variety of international tribunals; the practical problems and doubts about any attempt

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to restrict the right to plead before such an immense variety of tribunal s; or to interfere with the discretion of governments to make their own decisions about their own counsel. It is accordingly difficult to see what such an organisation could do other than to engage in very peripheral activities such as issuing yet another news-sheet or magazine. 3. One of the factors restricting choice of counsel is inevitably the question of the language or languages to be used in a case. In ad hoc arbitrations it is usual for the parties to decide that question in the terms of their agreement, as well as deciding the place of the arbitration; and the chosen language must obviously restrict the fields of both available leading advocates and available judges. The IC], at least in the foreseeable future, is likely to remain peculiar in maintaining only English and French as the working language s. Thi s does again very much restrict the list of those who can aspire to plead orally at the IC] bar; though there are in most cases before the Court even more places in a party 's teams for those who, for linguistic reasons, would not expect to plead orally, even though they may make important contributions to the content of the pleading. And of course this must also be the position in many arbitrations. 4. One conclusion that may be drawn from this brief survey of the requirements for good advocacy before international tribunal s is that it is an art that is in several importan t ways different from advocacy in domestic courts. But an advocate trained in the courts of a domestic system is, one might suppose, at least as likely to succeed before an international tribunal as a neophyte academi c international lawyer ; always provided that he or she is already very well acquainted with the principles and rules of international law. As international law is more and more involved in cases - certainl y in many commercial cases - before municipal court s, there is hope that international law knowledge and skills will become commoner in the higher echelon s of municipal bars. Then there may be rather more experien ced members of the municipal bars who will get briefs before international tribunals including the IC] . 5. One area in which the skills of lawyers from the domestic bars are much needed is that of the testing and proving or disproving of alleged facts. This is an area where the IC] tends to find itselffalling between the two stools of the common law and the civil law traditions. Experienced practitioners from either tradition would help in this area, especially where examination of witnesses is importan t. Here, however, the experience of the international criminal courts must be of the highest importance, but is a matter on which

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the present writer is not qualified to offer any opinion. And in any event the law of the burden of proof must always be importantly different in criminal cases . 6. There is no doubt that the standard of advocac y before international tribunals, and before the IeJ in particular, has remained very high; probably higher than at many domestic bars. The maintenance of these standards is of great importance because the strength and standards of a court is directly related to the strength and standards of the bar that pleads before it.

22

"WHOSE INTENT IS IT ANYWAY?" Genocide and the Intent to Destroy a Group John R.WD. Jones

It is a special privilege to submit this essay in honour of Antonio Cassese, whom I am most fortunate to have had as my mentor and friend for many years. As the Tribunal's first President and guiding light in its early years, Antonio Cassese was and will remain a seminal figure. To borrow from Laurens van der Post's description of Carl Gustav lung, among those the world considers great, Antonio Cassese is one of whose greatness one can be certain. Time is relative in more dimen sions than those of the continuum wherein Einstein's formidable equation places it. It has a knack of putting the truly great, as it were, well ahead of us, rather than in the past darkening so fast behind.

lung and the Story of Our Time, by Laurens van der Post, Prologue

1. INTRODUCTION In this brief comment, I identify in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia CICTY) and of the International Criminal Tribunal for Rwanda CICTR) an unresolved issue concerning the predicate of the criminal intent specific to the crime of genocide, namely "the intent to destroy, in whole or in part, a national , ethnical , racial or religious group , as such".' The ICTY

I

Articles 2 and 3 of the Genocide Convention of 1948; Article 4 of the 1CTY Statute ; Article 2 of the ICTR Statute .

L.C. Vohrah et al. (eds.), Man 's Inhumanity to Man, 467 -480 ©2003 Kluwer Law International. Printed in the Netherlands.

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and ICTR Chambers do not appear clearly to have decided whether, for a conviction for genocide to issue, it must be proved that the accused bore the criminal intent specific to the crime of genocide or whether it must be proved that a genocidal plan existed characterised by that specific intent, in which the accused participated : It is here suggested that the intent specific to genocide should be considered an attribute of the plan and not regarded as a mens rea requirement that must be proved in relation to an individual accused. Rather, the mens rea requirement should, on analogy with the mens rea required for crimes again st humanity, of which genocide is a species, be regarded as consi sting of knowing participation in the genocidal plan.' Requiring proof that an accused personally intended the destruction of a group not only runs counter to the concept of genocide as a mass crime, but risks becoming hopelessly embroiled in an examination of the accused's motives. 3

II . GENOCIDE The definition of genocide in the Statutes of the ICTY and ICTR is identical, and taken verbatim from Articles 2 and 3 of the Convention on the Prevention and Punishment of the Crime of Genocide signed in Paris on 9 December 1948:

2

J

A knowled ge requirement for genocide has been recogni sed in the Rome Statute of the Internation al Criminal Court (Rome Statute ) by virtue of article 30 which provides that, " (I) Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the juri sdiction of the Court only if the material element s are committed with intent and knowledge. [.. . J (3) For the purposes of this article, 'knowledge' means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. [.. .]". The draft text of the Elements for article 6 of the Rome Statute leaves the knowledge requirement to be determined on a case-by-case basis: "Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circum stances will usually be addres sed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis". On the irrelevance of motive in criminal law, see especially the Appea ls Chamber Judgemen t in Prosecutor v. Dusko Tadic, Case No. IT-94-I-A , Judgement, 15 July 1999, paras 268-269 .

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ICTY Article 4/ ICTR Article 2 Genocide I. The International Tribunal [for the former Yugoslavia and for Rwanda] shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group ; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group ; (e) forcibly transferring children of the group to another group . 3. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. As is well known, the term, "genocide", was coined by the jurist Rafael Lemkin in Axis Rule in Occupied Europe (1944) to describe the deliberate plan of the Nazis and their satellites to exterminate entire groups, in particular the Jews and the Gypsies. At the ICTR, the pre-eminent focus has been on the prosecution of genocide, "the crime of crimes"."At the time of writing, every accused indicted by the ICTR (of whom forty-four are in custody) have been charged with genocide or one of the other punishable genocidal acts, such as conspiracy to commit genocide

4

Prosecutor v. Jean Kambanda, Case No. ICTR-97 -23-S, Judgement and Sentence , 4 Sept. 1998, Trial Chamber, para. 16.

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(Article 2 (3)(b) of the ICTR Statute), direct and public incitement to commit genocide (Article 2 (3)(c» and complicity in genocide (Article 2 (3)(e» . Genocide has been less frequently charged in ICTY indictments, despite the fact that "ethnic cleansing" - the arch-crime in the former Yugoslavia that was invoked to justify the ICTY's establishment' - has been described in ICTY decisions as a form of genocide." At the time of writing, seven persons have been charged by the ICTY with genocide: Zeljko Meakic (IT-95-4-I) , Radovan Karadzic and General Ratko Mladic (IT-95-5-I and IT-95- I8-1), Dusko Sikirica (IT-95-8- I), Milan Kovacevic (IT-97-24-I), Goran Jelisic (IT-95-IO-I) and General Radislav Krstic (IT-98-33) - all Bosnian Serbs . So far, seven persons (Jean-Paul Akayesu, Jean Kambanda, Clement Kayishema, Obed Ruzindana, Omar Serushago, Georges Rutaganda and Alfred Musema) have been convicted of genocide and sentenced by the ICTR, none so far by the ICTY, Goran Jelisic having been tried and acquitted of the charge and the trial of General Radislav Krstic stilI being underway. It is when one turns to this corpus of genocide jurisprudence, that the problem of the mens rea requirement for genocide becomes immediately discernible.

III. THE TWO APPROACHES A basic principle, at least in the Anglo-American common law tradition, is expressed in the Latin maxim , actus reus nonfacit reum nisi mens sit rea ("th e act is not culpable unle ss the mind is guilty"). From this comes the double requirement for every crime (e.g. murder) of the actus reus, or material element of the crime (e.g. cau sing the death of another human being), and the mens rea (e.g. the intent to cause death or grievous bodily harm) . In the Anglo-American common law tradition, the principal forms of mens rea are intent, knowledge, recklessness and negligence. The precise mens rea requirement depends on the crime, but generally the more seriou s crimes (e.g. murder) require some form of intent, whereas less culpable crimes may require a less

5

6

When the Security Council established the ICTY, it referred explicitly to "the practice of 'ethnic cleansing' , including for the acquisition and the holding of territory". See Security Council resolution 827 of 25 May 1993. Seetheconfirmation by Judgeiliad of the Srebrenica (Radovan KaradzicandRatko Mladic) indictment of 16 November 1995.

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culpable state of mind (e.g. manslaughter, which can be committed by negligently causing the death of another human being) . With this in mind, it may not be surprising that when the Genocide Convention of 1948 came to be applied before international criminal tribunals, the words, "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", were fastened on as setting out a mens rea requirement. It is submitted, however, that this may have been a misapprehension. The Genocide Convention of 1948 was framed by States in the aftermath of the Holocaust to capture the notion of a particular sort of massive criminality or "macro-criminal phenomenon"," This crime consisted of the scheme to eradicate whole national, ethnical, racial or religious groups, i.e., that was the scheme's intent. But as can be seen from this description, such an intent can be described in a disembodied form , without the intent having to inhere in an individual perpetrator. The ICTY and ICTR Chambers, by contrast, have on occasion appeared to assume that the genocidal intent must indeed be embodied in the perpetrator for the crime to be complete.

A. Genocidal intent as an individualised mens rea requirement

I. The Jelisic Judgement To date, the only ICTY final judgement dealing with this issue consists of the Judgement of 14 December 1999 rendered in the case of Goran Jelisic , Jelisic was a Bosnian Serb camp commander in the town of Brcko in Bosnia, allegedly styling himself "the Serb Adolf', who admitted to killing a large number of Bosnian Muslims in 1992. Jelisic pleaded guilty to crimes against humanity and war crimes, but not guilty to genocide and a trial proceeded on that count alone. The trial started on 30 November 1998. After the Prosecution closed its case on 22 September 1999, the Trial Chamber dismissed the case , holding, in its Judgement of 14 December 1999, that there was no case to answer. The Chamber held that the Prosecution had failed to prove that Jelisic possessed the intent to destroy an ethnic or religious group in whole or in part when he committed his acts . Thus

7

See William A. Schabas , Genocide in International Law, (Cambridge University Press, 2000), especially chapter 5 (''The mental element of the offence"); Emanuela Fronza , 'Art. 6. Genocide' in Lattanzi-Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, (II Sirente, Teramo , 2000) ,105-139.

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the Chamber proceeded on the assumption that it was necessary to prove that the accused himself possessed this intent, i.e., that it was an individual mens rea requirement ," Proceeding on this basis, the Chamber found that, despite the evidence that Jelisic had singularly persecuted Bosnian Muslims, killing and beating them on the basis of their membership in a religious/ethnical/national group, this did not manifest a "clear intention to destroy a group" on his part.?

8

9

This is, indeed, clearly stated in paragraph 62 of the Judgement: "Genocide is characteri sed by two legal ingredient s according to the terms of Article 4 of the Statute: - the material element of the offence, constituted by one or several acts enume rated in para. 2 of Article 4; - the mens rea of the offence, consisting of the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Yet ICTY Article 4 nowhere states that the "special intent" is a mens rea requirement rather than a global description of the crime of genocide. The Chamber found that Jelisic: " 102 presented himself as the 'Se rbian Adolf' and claimed to have gone to Brcko to kill Muslims He allegedly said to the detainees at Luka camp that he held their lives in his hands and that only between 5 to 10 % of them would leave there. .. . Goran Jelisic remarked to one witness that he hated the Muslims and wanted to kill them all, whilst the surviving Muslims could be slaves for cleaning the toilets but never have a professional job . He reportedly added that he wanted 'to cleanse' the Muslims and would enjoy doing so, that the 'bal ijas' [a derogatory term for Muslims] had proliferated too much and that he had to rid the world of them. Goran Jelisic also purportedly said that he hated Muslim women, that he found them highly dirty and that he wanted to sterilise them all in order to prevent an increase in the number of Muslims but that before exterminating them he would begin with the men in order prevent any proliferation [sic]." According to the Chamber's own account, the accused carried this intent into action, killing a great number of Muslims and boasting of the fact: " 103. . .. during the initial part of May, Goran Jelisic regularly executed detainees at Luka camp . According to one witness, Goran Jelisic declared that he had to execute twenty to thirty persons before being able to drink his coffee each morning. The testimony heard by the Trial Chamb er revealed that Goran Jelisic frequently informed the detaine es of the number of Muslims that he had killed. Thus, on 8 May 1992 he reputedl y said to one witnes s that it was his sixty-eighth victim, on II May that he had killed one hundred and fifty persons and finally on 15 May to another witness following an execution that it was his 'eighty -third case' ." Jelisic indeed formally admitted to having committed several of these crimes by pleading guilty, at his appearance before the ICTY on 29 October 1998, pursuant to an "Agreement on the Facts relating to the planned guilty pleas by Goran Jelisic" signed on 9 September 1998 with the Prosecutor, to thirteen murders and countle ss beatings. The Chamb er was satisfied that the crimes to which Jelisic pleaded guilty were crimes against humanity and war crimes, but refused to consider them as crimes of genocide: " 107. In conclusion, the acts of Goran Jelisic are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such. 108.... the behaviour of the accused appears to indicate that, although he obviously singled out Muslims, he killed arbitrarily

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Leaving aside the question whether the Chamber's factual findings were reasonable or not, it is in any event clear that the Chamber adopted an individualised mens rea approach to the special intent of genocide. At the same time, the Chamber also considered the notion of an "all-inclusive" genocide. Part of the explanation for Jelisic's acquittal lies in the fact that the Chamber evidently considered that the Prosecution had failed to prove that Jelisic's acts were committed in a broader context of genocide waged by Bosnian Serbs against Muslims in Brcko, and in Bosnia generally.'? The absence of this context , the Chamber hinted, would make it harder to prove genocide against an individual: it will be very difficult in practice to provide proof of the genocidal intent of an individual if the crimes committed are not widespread and if the crime charged is not backed by an organisation or a system (para . 101). As a matter of criminal law, this is curious. If the accused is, ex hypothesi, regarded merely as an individual, then the ease or difficulty of proving his mens rea should not depend on the criminal behaviour of others . The Chamber's approach only makes sense if the special intent associated with genocide is considered an attribute of the overall plan in which the accused wilfully participated, rather than as a question of his mens rea. Moreover, in casu, this reasoning is belied by the Chamber's finding that Jelisic's crimes were crimes against humanity. 1 I This finding presupposes a widespread and systematic context supported by an organisation or system. The Chamber also found that it was the Muslim population which was discriminated against as a

rather than with the clear intention to destroy a group. The Trial Chamber therefore concludes that it has not been proved beyond all reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide. The benefit of the doubt must always go to the accused and, consequently, Oman Jelisic must be found not guilty on this count." 10

11

See para. 98 of the Judgement. See para. 57 of the Judgement: "57 . The accused has not denied that his acts formed part of the attack by the Serbian forces against the non-Serbian population of Brcko. The Trial Chamber moreover notes that, despite remaining uncertainties regarding his exact rank and position, the accused was part of the Serbian forces that took part in the operation conducted against the non-Serbian civilian population in Brcko. It was indeed in anticipation and in the service of the attack that the accused , who comes from Bijeljina, was given police duties in the municipality of Brcko. As one of the active participants in this attack, Oman Jelisic must have known of the widespread and systematic nature of the attack against the non-Serbian population of Brcko."

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group,'? It is, therefore, difficult to see why the Chamber did not consider the

allegation of genocide against Jelisic as falling within this context of a widespread and systematic persecution of Muslims. This would have reduced the difficulty, perceived by the Chamber, of proving an individual's genocidal intent in the absence of such a context. The Chamber might also have found the relevant broader context in the condonation, if not active encouragement, of the accused's many murders of Muslims, and genocidal boasts, by the Bosnian Serb entity that installed him as camp commander. In any event, it is clear from the Judgement that the Chamber considered that it could not convict Jelisic of genocide in the absence of proof beyond a reasonable doubt that he personally acted with the intent to destroy, in whole or in part, the Bosnian Muslims as a group. 2. The Akayesu Judgement

The first ICTR judgement to deal with genocide was the Akayesu Judgement rendered by Trial Chamber I on 2 September 1998. Akayesu was convicted of genocide and direct and public incitement to commit genocide . He was sentenced to life imprisonment. The Chamber adopted the individualised approach to the intent requirement of genocide, outlined above, proceeding via the notion of dolus specialis. The Chamber found that the crime of genocide is characterized by its dolus specialis , or special intent, which lies in the fact that the acts charged, listed in Article 2 (2) of the Statute, must have been "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such":" 518 . Special intent is a well-known criminal law concept in the Roman-continentallegal systems. It is required as a constituent element of certain offences and demands that the perpetrator have the clear intent to cause the offence charged. According to this meaning, special intent is the key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator. [

...]

12

See paras 73-77 of the Judgement.

13

Prosecutor v. Akayesu, Case No. ICTR-96-4 , Judgement, 2 Sept. 1998, para . 517.

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521. In concrete terms, for any of the acts charged under Article 2 (2) of the Statute to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group , and specifically because they belonged to this group. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group . The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual. The basis for the assumption that the reference to intent in Article 2 (2) of the ICTR Statute referred to the individual accused 's dolus specialis was, however, left unexplained. At the same time, the Chamber veered ineluctably towards a consideration of the special intent of genocide as being characteristic of an overall plan. The overall genocidal plan was taken into account as a matter of inferential reasoning : 523. ' " in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group , whether these acts were committed by the same offender or by others . Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act. Yet this reasoning, while superficially persuasive, is flawed. The fact that others are committing the same act does not per se permit the inference that the accused , while committing a similar act, was motivated by a specific intent. If a large number of murders of a specific religious group are being committed, and A then perpetrates a murder of that religious group, the only logical inference is that A's murder is part of a pattern of murders . It would not ordinarily permit any inference as to what was passing through A's mind when he committed the murder.

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B. Genocidal intent as descriptive of the overall plan

J. The KayishemalRuzindana Judgement

The alternative approach is exemplified in the Kayishema/Ruzindana Judgement of 21 May 1999.14 The Chamber first examined whether a genocidal plan as a whole existed in Rwanda in 1994, and then whether the accused participated in that plan: 528. '" The analysis shows that there indeed was a genocidal plan in place prior to the downing of the President's airplane in April 1994. This national plan to commit genocide was implemented at prefecture levels . .. 529. The Prosecution submitted that the killings were planned and organised with a clear strategy, which was implemented by Kayishema and Ruzindana in Kibuye. The plan was executed efficiently and successfully in this Prefecture. Those who escaped the April massacres in and around Kibuye Town fled to Bisesero where they were relentlessly pursued and attacked . One witness described Bisesero Hill as strewn with dead bodies "like small insects which had been killed off by insecticide." There is documentary evidence that Kayishema requested reinforcement from the national authorities to attack the unarmed Tutsi population under the guise that there was a "security problem" in Bisesero. [ ...]

533 . The number of the Tutsi victims is clear evidence of intent to destroy this ethnic group in whole or in part. The killers had the common intent to exterminate the ethnic group and Kayishema was instrumental in the realisation of that intent. Methodology - Persistent Pattern of Conduct

534. The Trial Chamber finds compelling evidence that the attacks were carried out in a methodical manner. The Prosecution submitted that evidence of specific intent (dolus specialis) arises from the repetitive character of the

14

Kayishema and Ruzindana were found guilty of genocide, the former being sentenced to life imprisonment and the latter to 25 years ' imprisonment.

"Whose Intent is it Anyway ?"

477

planned and programmed massacres and the constant focus on the Tutsi members of the population. The perpetrators did not commit just one massacre but continually killed the Tutsi from April to June 1994. 535. This consistent and methodi cal pattern of killing is further eviden ce of the specific intent. Kayishema was instrumental in execut ing this pattern of killing . The operativ e notion here of the accused as instruments in the hands of a larger organisation bent on genocide is important. It is submitted that this approach approximates more truly to the notion of genocide" than an examination of whether each accused, individually, possessed the "intent to destroy in whole or in part the Tutsi group, as such", an examination also undertaken by the Chamber," Thus , ultimately, the Chamber equivocated over whether the intent to destroy the group must be an attribute of the plan or an attribute of the individual particip ating in the plan . 2. The Rutaganda Judgement The Chamber ruling in the Rutaganda Judgement of 6 December 199917 also seems to have equivocated between two notions. The "individualised" approach is set out in the follo wing paragraph s of the Judgement: 59. . . . A person may be convicted of genoc ide only where it is established that he comm itted one of the acts referred to under Articl e 2(2) of the Statute with the specific intent to destroy, in whole or in part, a particular group .

[...J 399. . .. the Chamber is satisfied beyond any reasonable doubt that, at the time of comm ission of all the above-mentioned acts which in its opinion are proven, the Accused had indeed the intent to destroy the Tutsi group as such.

15

16

17

See Fronza , supra note 7, p. 130, referring to "the structure of the crime of genocide as a collective crime; it requires . .. an organised structure - state-controlled or no[t] - as much in the planning and preparation phase as in the realisation, with the aim to implement a plan or a policy of destruction" . See Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1. Judgement, 2 \ May 1999, paras 53\ to 545. In which Rutaganda was found guilty of genocide and sentenced to life imprisonment.

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At the same time, the Chamber still felt it necessary to establish the intent in a broader context: 400. Moreover, on the basis of evidence proffered at trial and discussed in this Judgement under the section on the general allegations, the Chamber finds that, at the time of the events referred to in the Indictment, numerous atrocities were committed against Tutsis in Rwanda. From the widespread nature of such atrocities, throughout the Rwandan territory, and the fact that the victims were systematically and deliberately selected owing to their being members of the Tutsi group , to the exclusion of individuals who were not members of the said group, the Chamber is able to infer a general context within which acts aimed at destroying the Tutsi group were perpetrated . Consequently, the Chamber notes that such acts as are charged against the Accused were part of an overall context within which other criminal acts systematically directed against members of the Tutsi group, targeted as such, were committed. It seems that the compromise approach that is emerging, at least at the ICTR Chambers - possibly to avoid appeals - is to find both a plan embodying the intent to destroy the group and an individualised intent or mens rea on the part of the individual. While this may be a useful compromise, it fudges the central question of which of the two notions was meant to be captured by the single phrase, "intent to destroy, in whole or in part, a national , ethnical , racial or religious group , as such" .

IV. CONCLUSION

Given the circumstances in which the definition of genocide in the Genocide Convention of 1948 was adopted , it is submitted that it is not warranted to infer that the reference to the specific intent of genocide in the Convention was intended to refer to the mens rea requirement of an accused charged before a criminal tribunal. Unlike the circumstances surrounding the adoption of the Rome Statute for an International Criminal Court, where criminal lawyers of all shades were at hand to draft precise definitions of the offences, accompanied subsequently by even more detailed "Elements of the offences", the Genocide Convention was adopted in many ways as a political manifesto against a certain form of massive criminality and was not intended as a criminal code . If this is correct, the ICTY and ICTR, proceeding on a trial on indictment of a person charged with genocide should first and foremost ascertain whether such a nationwide, or in any event organised and widespread, plan existed to exterminate a group. On this issue, the Trial Chamber should not necessarily insist on proof of such a plan beyond a reasonable doubt, as

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the Trial Chamber in the Jelisic Judgement did ." A "balance of probabilities" or some other standard could be used.'? Turning to the appropriate mens rea standard, if the Chamber finds that a genocidal plan existed - in the former Yugoslavia or in Rwanda - it should then tum to the issue whether the accused participated in the implementation of that plan by committing any of the acts listed in sub-section (2) of ICTY Article 4 and of ICTR Article 2 with intent and in the knowledge that the comm ission ofthose acts would further the implementation of the genocidal plan. In this sense, the mens rea required for genocide might be considered on analogy with the mens rea requirement for crimes against humanity now settled at the ICTY and ICTR , namely (1) intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs." Given that the crime of genocide has its origins as a special type of crime against humanity, it is only fitting that the mens rea requir ements of the two crimes should possess the same broad structure. It might be argued that a description of genocide based on wilful participation in the implementation of a plan smacks of complicity in genocide rather than genocide proper. Yet compli city in genocide, which has now been dealt with at length in ICTR jurisprudence," remain s clearly circumscribed. Complicity in genocide consists of knowingly aiding another to commit one of the enumerated crimes, while in the case of genocide, the principal must himself comm it those crime s (or order them to be committed) with intent and in the knowledge that the commissio n of the crimes furthers the implementation of the genocidal plan. Genocide thus conceived also remains distinct from conspiracy to commit genocide, as the latter requires, as part of the actus reus , proof that the accused entered

18

19

20

21

The Chamber concluded that it had not been proved "beyond a reasonable doubt" that there was a plan to destroy the Muslims in Brcko or beyond (see paragraph 108 of the Judgement). The ICTY and ICTR Statutes do not, in fact, refer to proof of guilt "beyond a reasonable doubt". The standard of proof is only referred to in ICTY and ICTR Rule 87 ("Deliberations"), paragraph (A) of which provides that, ".. . A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt" . (Emphasi s added). Whether or not there existed, for example, a genocidal plan on the part of the Bosnian Serbs in Brcko would not, however, appear to be a question of the accused's guilt. Arguably, it should not, therefore, require proof "beyond a reasonable doubt" according to Rule 87. See Prosecutor v. Dusko Tadic, Case No. IT-94-I , Opinion and Judgment, 7 May 1997, para. 656. See Akayesu Judgement , Case No. ICTR-96-4, 2 Sept. 1998, para. 528 et seq. and Musema, Case No. ICTR-96-13, Judgement, 27 Jan. 2000, para. 173.

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into an agreement with another person or persons to commit genocide, which is not an element that needs to be proved where genocide tout court is concerned. Thus the approach expounded herein would ensure that the division of labour between the various criminal provisions on genocide - genocide, conspiracy to commit genocide, complicity to commit genocide - remains coherent, considering the nature of genocide as a collective crime . And as Judge Abi-Saab observed, "greater legal coherence is always a worthwhile judicial pursuit''P?

22

Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction , Separate Opinion of Judge Abi-Saab , p. 6.

23

REPRISALS AND THE PROTECTION OF CIVILIANS: TWO RECENT DECISIONS OF THE YUGOSLAVIA TRffiUNAL Frits Kalshoven

I. INTRODUCTION The term "reprisal" is in common use to indicate an act that is done in retaliation or revenge. Drug barons may be murdered "in reprisal " for earlier killings on their side, and witnesses to criminal activity may not wish to testify out of "fear of reprisal" . On the loftier plane of international affairs, the term is often used to mark interstate conduct, again in common parlance as a synonym for retaliat ion or revenge . However, on this plane it has acquired a legal connotation as well, indicating a claimed ju stification of unlawful acts in response to equally unlawful acts of another party. What sets this employment of the term apart from its day-to-day use is that, to be justified as a "reprisal", an act must meet a series of stringent conditions . Apart from the obvious requirement of previous unlawful conduct by the other party, these conditions may be summed up as: a distinct purpose (to induce the other party to discontinue the unlawful conduct); timely warning; subsidiarity (the measure must be a last resort); proportionality (the measure brings no more serious injury than the injury inflicted by the other party) ; and termination as soon as the conduct occasioning the measure has come to a stop. Needless to say, the mere claim that a certain measure constitutes a legitimate reprisal provides no guarantee that it actually deserves that qualification. As with any other legal argument , this one too is apt to be misused, in an attempt to justify conduct that, on scrutiny, meets none of the essential conditions for a legitimate reprisal. In the law of armed conflict in particular, the notion of "belligerent reprisal" has developed over the course of time into an often used, and even more often misused, device to check the conduct of an adverse party that violates given rules of

LiC, Vohrah et al. (eds.) , Man 's Inhumanity to Man , 481-510 ©200 3 Kluwer Law Internati onal. Print ed in the Netherlands.

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that body of law. Occasionally it has been applied with great precision and efficacy. In other cases, reprisals , once resorted to, ran out of hand, disregarding the condition of proportionality and thus giving rise to counter-reprisals. The effect in such cases was a spiral of violence in contravention of the law and causing great harm to victims on either side, who may have no connection with the original wrong . This is the reason why, in 1949, prohibitions on recourse to reprisals were included in the four Geneva Conventions for the protection of war victims . I In 1977, provisions banning reprisals against civilians and civilian objects were included in Protocol I additional to the Geneva Conventions of 1949 and applicable in international armed conflicts.? in the framework of the general protection of civilian populations against the effects of hostilities .' Protocol II, concluded at the same time and applicable in non-international (or internal) armed conflicts ,' contains no such provision . Subsequent bans on reprisals, once again largely designed for the better protection of civilian populations against the effects of hostilities , are found in the 1980 Mines Protocol and the 1996 Amended Mines Protocol, attached to the Conventional Weapons Convention of 1980.5 The last-mentioned Protocol , in contrast with the original Mines Protocol, is applicable both in international and internal armed conflicts (Article 1 (2)).6

I

2

3 4

For a fuller discussion of reprisal s in the context of armed conflict, including concrete instances of claimed reprisals and the prohibitions introduced in treaties concluded in the Interbellum and after the Second World War, see F. Kalshoven, Belligerent Reprisals (1971) . Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); text in A. Roberts and R. Guelff, Documents on the Laws a/War, 3rd ed. (2000) (hereinafter Documents) , p. 419 . The relevant provisions are Arts. 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4) . Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); Documents, p. 483. 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Documents, p. 513; Protocol on Prohibitions or Restriction s on the Use of Mines, Booby-Traps and Other Devices (1980 Protocol I) Art. 3(2); Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996 Amended Protocol II) Art. 3(7).

6

Article 2 (3) provides that in the latter situation , "each party to the conflict shall be bound to apply the prohibitions and restrictions of this Protocol " .

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483

The prohibitions in Protocol I on reprisals against the civilian population and civilian objects are of interest because of the strong differences of opinion and intense debate that preceded their adoption, the uncertainty how, once adopted, they would fare in actual practice, and the silence on the subject of reprisals in Protocol II on internal armed conflicts." In this light, it should be welcomed that the International Criminal Tribunal for the former Yugoslavia (ICTY) has twice found an opportunity to express its views on the subject. The cases are, in chronological order, the Decision of Trial Chamber I of 8 March 1996 in a "Rule 61 procedure" concerning Milan Martie," and the Judgement of Trial Chamber II of 14 January 2000 in the case of Prosecutor v. Zoran Kupreskic et ai" The purpose of this paper is to subject the views of these Trial Chambers on the question of reprisals in the context of the rules for the protection of the civilian population to a critical analysis . Other aspects of the cases will be dealt with in summary fashion. It should be stated at the outset that careful scrutiny of the relevant parts of the above texts has left me with a feeling of dissatisfaction at what the Chambers had to say about the issue, and, indeed, at the fact that they took the matter up at all.

II . THE MARTIe RULE 61 DECISION The case against Milan Martie concerns attacks carried out on 2 and 3 May 1995 by the army of the self-proclaimed Republic of Serbian Krajina (or RSK, a Serbheld part of Croatia) against Zagreb, the capital of Croatia. The weapons used

7

8

9

For earlier writings by this author on the prohibitions in Protocol I and the absence of such prohibitions in Protocol II, see: 'Reprisals in the CDDH', in R.J. Akkerman, P.J. van Krieken and C.O. Pannenborg (eds.), Declarations on Principles - A Questfor Universal Peace (1977), pp. 195-216; Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977' ,9 Netherlands Yearbook ofInternational Law (1978) , pp. 107-171, at pp. 113-115; 'Belligerent Reprisals Revisited', 21 Netherlands Yearbook of International Law (1990) , pp. 43-80 .

Prosecutor v. Milan Martie, Case No. IT-95-11, Decision , 8 Mar. 1996 ("Martie Rule 61 Decision") , before Judges Jorda (presiding), Odio Benito and Riad. A Rule 61 procedure concerns the reconfirmation by a full Trial Chamber of the earlier decision by one of its members to confirm the indictment against a named accused . Prosecutor v, Zoran Kupreskic et al., Case No . IT-95-l6, Judgement, 14 Jan . 2000 ("Kuprdkie"), before Judges Cassese (presiding), May and Mumba.

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were Orkan rockets fitted with cluster-bomb warheads, and they caused death and injury to civilians in Zagreb. The attacks were ordered by Martie, the president of RSK, as the indictment specifies, "in retaliation" to a massive attack launched on I May 1995 by the Croatian armed forces against the Serb positions. Prior to that date, an UNPROFOR-controlled cease-fire had long characteri sed the situation in the area. Increasingl y clear indications that Croatia was preparing for the recapture of the Serb-held parts of its territory had induced General Milan Celeketic, commander of the RSK army, to announce on 24 March 1995 that "[in] case of Ustasha aggression, we will certainly not miss the opportunity to hit them where it hurts the most. .. . Weak points are city squares and we know who goes there civilians".'? Evidently, when the rockets were fired at Zagreb, that put the set policy into effect. The attacks caused considerable harm: 7 dead, over 100 seriously wounded and another 100 or more lightly wounded, all of them civilians. On the material side, many vehicles and buildings were damaged and windows broken. None of the harm was done to anyone or anything military. The attacks were, therefore, indubitabl y, both in intent and effect, attacks against the civilian population . Martie was indicted on 24 July 1995, a mere three months after the fact, for violations of Articles 3 and 7 of the Statute of ICTY lI Judge Jorda confirmed the indictment on 25 July 1995, and when that failed to bring the accused to The Hague, by decision of 13 February 1996, ordered the Prosecutor to request a Rule 6 1 review of the indictment. 12 Part of that procedure was a public hearing held on

10

lnfonnation about the case is derived from the indictment of 24 July 1995 and the transcript of the public hearin g of 27 Febru ary 1996, both available on the ICTY website, and from the Decision of Trial Chambe r I in the Rule 6 1 procedure (not on the web). UNPROFOR was the United Nations Protection Force deployed in various parts of the territory of the former Yugos lavia. General Celeketic took his orders from the president as commander-in-chief of the RSK armed forces. "Us tasha" is a denigrating term by which Serbs tend to indicate Croats. Whether quotations in the text are from the Decision or from the transcript of the public hearing may be clear from the context.

11

Article 3 gives the International Tribunal power to prosecute "persons violating the laws or customs of war" ; Article 7 (1-3) defines various forms of individual criminal responsibility of persons not the actual perpetrator.

12

At the relevant time , Rule 6 1 (Procedure in Case of Failure to Execute a Warrant) provided in relevant part: (A) If, within a reasonabl e time, a warrant of arre st has not been executed, ... the Judge who confinn ed the indictment shall invite the Prosecutor to report on the measures taken. When the Judge is satisfied that: (i) the Prosecutor has taken all reasonable steps to secure

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27 February 1996. On that occasion, the Prosecution gave an overview of the case, presented evidence additional to that already in the confirmation file, and set forth the arguments on which they believed Martie was rightly indicted . By its Decision of 8 March 1996, Trial Chamber I unanimously reconfirmed the indictment, and accordingly issued an international arrest warrant against the accused." The Decision is in three parts: (I) Introduction, (II) Review of the indictment, and (III) Disposition. In the Introduction, the Trial Chamber notes that, to arrive at its conclusion, it not only needs to "establish that there are reasonable grounds for believing that the accused has committed one or all of the crimes charged in the indictment" but "must also review the legal characterisation of the facts presented by the Prosecutor in order to determine whether its competence at this stage has been established". In Part II, after a brief description of the charges against Martie, it reverses the order, discussing first the legal aspects of the competence of the International Tribunal under Article 3 of the Statute, and only after that taking a closer look at the facts. The conclusion of the Trial Chamber follows in Part III (Disposition), where it finds "that there are reasonable grounds for believing that Milan Martie has committed the crimes charged in the indictment confirmed on 25 July 1995".

the arrest of the accused, . . . the Judge shall order that the indictment be submitted by the Prosecutor to his Trial Chamber. (B) Upon obtaining such an order the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence that was before the Judge who initially confirmed the indictment. The Prosecutor may also call before the Trial Chamber and examine any witness whose statement has been submitted to the confirming Judge. (C) If the Trial Chamber is satisfied on that evidence. together with such additional evidence as the Prosecutor may tender. that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment. it shall so determine. . .. (D) The Trial Chamber shall also issue an international arrest warrant in respect of the accused which shall be transmitted to all States. (E) If the Prosecutor satisfies the Trial Chamber that the failure to effect personal service was due in whole or in part to a failure or refusal of a State to co-operate with the Tribunal [...I. the Trial Chamber shall so certify. After consulting the Presiding Judges of the Chambers. the President [of the International Tribunal) shall notify the Security Council thereof in such manner as he thinks fit. Doc. IT/32/Rev. 7 13

Supra note 8.

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The chosen order, with "the legal aspects of the competence of the International Tribunal under Article 3 of the Statute" preceding the facts, lends the discussion of the legal aspects a wholly theoretical character. The question the Trial Chamber poses itself is not whether the International Tribunal is competent to deal with the attack on the civilian population in Zagreb, but a more general review of attacks on civilians in any situation of armed conflict. The discussion starts out with a reference to the (then quite recent) Decision of the Appeals Chamber in the Tadic case, where that Chamber held that Article 3 "refers to a broad category of offences, namely all 'violations of the laws or customs of war" and that "the enumeration of some of these violations provided in Article 3 are merely illustrative, not exhaustive". 14 Since conduct of the type charged by the Prosecutor is not literally reflected in any of the "illustrations" included in that article," the Trial Chamber "must verify that it constitutes a violation of the laws or customs of war referred to in the Article" . It must also be satisfied that the conditions set by the Appeals Chamber for establishing the jurisdiction of the International Tribunal under Article 3 "appear to have been fulfilled at this stage" . 16 The Trial Chamber accordingly sets out to "identify those conventional and customary norms which underlie the charges against Milan Martie and establish that violations of these rules are subject to prosecution under Article 3 of the Statute" . Identification of applicable rules yields a rich harvest. As treaty provisions, Articles 51 (2,6) and 85 (3)(a) of Protocol I and 13 (2) of Protocol lI,17 are applicable

14

15

16

17

Martie Rule 61 Decision, para. 5, citing Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, (hereinafter: Tadic Decision, or Tadicv, para . 87 . Out of the five violations specifically mentioned in Article 3, two are at least relevant to the case in hand : "wanton destruction of cities, towns or villages, or devastation not justified by military necessity", and "attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings". The conditions the Appeals Chamber set in Tadic, para. 94, are : "(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met ... ; (iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim ... ; (iv) the violation of the rule must entail , under customary or conventional law, the individual criminal responsibility of the person breaching the rule" . Protocol I, Article 51 (2): ''The civilian population as such, as well as individual civilians, shall not be the subject of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Article 51 (6): "Attacks against

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in international and internal armed conflicts respectively (with both Protocols binding "[all] the States which were part of the former Yugoslavia and parties to the present conflict at the time the alleged offences were committed"). As a norm of customary law: "the rule that the civilian population as such, as well as individual civilians, shall not be the object of attack, [as] a fundamental rule of international humanitarian law" which like other similar rules (and as confirmed in two resolutions of the United Nations General Assembly) is "applicable to all armed conflicts irrespective of their characterisation as international or non-international armed conflicts"." All this is stated to be reinforced by the Martens clause (stating that "in cases not covered by (the relevant instruments), civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of the public conscience")'? and by "elementary considerations of humanity" ." According to the Trial Chamber, the latter "are reflected in Article 3 Common to

the civilian population or civilians by way of reprisals are prohibited ." Article 85 (3)(a) qualifies as a grave breach , the act of "making the civilian population or individual civilians the object of attack ", when "committed wilfully, in violation of the relevant provisions of this Protocol , and causing death or serious injury to body or health". Protocol II, Article 13 (2) is identical to Article 51 (2) of Protocol I. 18

19

The General Assembly resolutions are: res. 2444 (XXill), 19 Dec. 1968, affirming res. XXVIII of the XXth International Conference of the Red Cross, 1965, which laid down as one of the "principles for observance by all governmental and other authorities responsible for action in armed conflicts" that "it is prohibited to launch attacks against the civilian populations as such"; and res . 2675 (XXV) , 9 Dec. 1970, listing among the "basic principles for the protection of civilian populations in armed conflicts" that "Civilian populations should not be the object of military operations " and "Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity" . The Martens clause stems from the preamb le to the 1899 Hague Convention 11 Respecting the Laws and Customs of War on Land, and was reiterated without change in the 1907 version of that Convention; Documents, p. 70. The text quoted above is as in Article I (2) of Protocol I. The preamble of Protocol II recalls in shorter and less "legal" terms that "in cases not covered by the law in force , the human person remains under the protection of the principles of humanity and the dictates of the public conscience" . See also : A. Cassese, 'The Martens Clause: Half a Leaf or Simply Pie in the Sky?', 12 European Journal of International Law (2000), pp. 187-216; on its historical origin (expos ing it as a compromise formula dictated from Brussels to Martens as Head of the Russian delegation to the 1899 Hague Peace Conference), see: R. Coolsaet, 'La Belgique et la premiere Conference de la Paix de La Haye (1899)' , on CD-ROM (under 1899B.PDF) in the back ofF. Kalshoven (ed.), The Centennial of the First International Peac e Conference (2000) .

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the Geneva Conventions" whi ch "embodies tho se rule s of customary international law which should be observed 'as a minimum' by all parties 'at any time and in any place whatsoever' irre spective of the characteri sation of the confli ct" . From thi s it concludes (and, in my view, wrongly): The prohibition to attack civilians mu st be derived from Common Article 3 which provides that " perso ns taking no active part in hostiliti es ... shall, in all circumstances, be treated humanely" and which prohibits, in paragraph I (a), "violence to life and person, in particular, murder of all kind s, mutilation [. .. ]". Attacks against the civilian population as such or individual civilians would necessarily lead to an infringement of the mandatory minimum norms appli cable to all armed conflicts." This leaves the question of the nature of acts such as the Serb counter-attacks. As spec ified in the indictment, Martie gave his orders "in retaliation" to the Croat attack launched on I May 1995; and indeed, as noted abov e, General Milan Celeketic had threatened as early as 24 March 1995 that such an attack would lead to counter- attack s against the Cro at civilian population. Should it be assumed that attacks of the type as carried out against Zagreb might be " legitimate reprisa ls" in the se nse of international humanitarian law ? Thi s question is bro ach ed, first and at length, by Mr. Eric Ostb erg, a senior trial atto rney of the Office of the Pro secut or. He submits that repri sals against the civilian population are generally prohibited , " whether in interna tional or internal armed conflicts"; or alternatively, "to the extent that such repri sals may not be proh ibited, the y co nstitute an exception to the general rule of humanitarian protection and , co nsequently, their lawfulness is conditioned on the satisfaction of certain very stric t criteria" . For the principal the sis, Mr. Ostberg seeks support in General Assembly resolu tion 2675 on "ba sic principles for the protection of civi lian populations in arm ed

20

21

The"elementaryconsiderations" formula stems from theJudgementof the InternationalCourt of Justicein the Corfu Channel case, where it speaks of "certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace thanin war" (ICJ Reports, 1949, p. 22). The Courtquotes its formula in its Judgementin the Nicaragua case (lCJ Reports, 1986, para. 215) andin its Advisory Opinion on Legality ofthe Threat or Use of Nuclear Weapons (ICJ Reports, 1996, para. 79). This statement is wrong.Article 3, as partof the Geneva Conventions of 1949, has nothing to do with hostilities and the risks military operations pose to civilians. See also infra notes 26 and 27.

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conflicts"." This states inter alia that "civilian populations, or individual members thereof should not be the object of reprisals , forcible transfers, or other assaults on their integrity". General Assembly resolutions may not generally make law, but the Appeals Chamber in its TadicDecision had qualified this particular resolution as "declaratory of the principles of customary international law regarding the protection of civilian populations and property in armed conflicts of any kind" .23 As regards the fact that neither Article 4 24 nor Article 13 (2) of Protocol II refer to reprisals, Mr. Ostberg (mistakenly) refers to comments by the International Committee of the Red Cross (ICRe) in relation to Article 4, to the effect that the silence in that article is due to "reasons of a legal and political nature" and that, given the absolute character of the prohibitions on inhumane treatment in the article, "there is in fact no room left at all for carrying out "reprisals" against protected persons". While these references are at least textually correct, this is no longer the case when Mr. Ostberg adds that the ICRC "observes that [. ..] in the absence of such provisions , reprisals against civilians are ' implicitly prohibited'". 25 Unfortunately, the entire quote is wrong. As is clear from the full text in the Commentary." it reflects the views the ICRC had expressed in the past in relation

22

Supra note 18.

23

Tadic Decision, para. 112; the quoted sentence continues : "and , at the same time, were intended to promote the adoption of treaties on the matter, designed to specify and elaborate upon such principles " . With regard to the issue of reprisals against civilians , that further process has resulted in the adoption of prohibitions of reprisals in Arts. 51 et seq. of Protocol I, and in a refusal to say anything about it in Protocol II.

24

25

26

Article 4 (Fundamental guarantees) opens Part II (Humane treatment) of Protocol II; it reaffirms and considerably elaborate s upon common Article 3 of the t949 Geneva Conventions. ICRC. Commentary on the Additional Protocols of8 June /977 to the Geneva Conventions of12 August /949 (1987), paras 4529, 4530 . Para. 4530 reads: "The list of prohibited acts [in Article 4] is fuller than that of common Article 3. That being so, and because of the absolute character of these prohib itions, which apply at all times and in all places, there is in fact no room left for "reprisals " against protected persons. Such an interpretation was already given in the commentary on common Article 3. In the absence of an express reference to "reprisals" , the ICRC considered that these were implicitly prohibited." In its Commentary to the Fourth Geneva Convention, the ICRC, noting that Article 3 does not prohibit reprisals, wonders whether this means "that reprisals , while formally prohibited under Article 33, are allowed in the case of non-international armed conflicts [.. . I" . a question it answers in the negative by referring to the absolute and permanent character of the prohibitions in Article 3. The point is that Article 33, like the rest of the Convention, applies

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to common Article 3, and transposes these to the new Article 4. As noted elsewhere in the Commentary, common Article 3 "does not contain provisions relating to the protection of the civilian population as such".27 The comment at Article 4 must similarly be understood to be restricted to the "humane treatment" provisions of that article, and has no bearing on the provisions in Article 13 on general protection of the civilian population against the effects of hostilities or on the issue of reprisals in that context in particular. Having thus established to his (though not to my) satisfaction that reprisal attacks against the civilian population are banned in all types of armed conflict, Mr. Ostberg takes up the alternative point: assuming that reprisals against civilians might not be regarded as prohibited in internal armed conflicts, their lawfulness would always be "subject to strict criteria" since they would "constitute a narrow exception" to the general rule of protection "against inhumane acts and attacks in all circumstances" . Indeed, they deviate so significantly from "the elementary norms of international humanitarian law that, if serious or deliberate attacks on civilians are established beyond a reasonable doubt, there is a presumption that such action was unlawful in the absence of proof to the contrary". Upon which he concludes "by saying: the shelling of Zagreb was not a reprisal. It was a terror retaliation and it was unlawful" . The Trial Chamber, continuing its reasoning in abstracto, asks itself whether there might be "circumstances which would exclude unlawfulness, in whole or in part [of an attack on the civilian population in any armed conflict] [... ] does the fact that the attack was carried out as a reprisal reverse the illegality of the attack"?" For its (negative) answer it relies, first, on the principle that "[tlhe prohibition against attacking the civilian population [...] must be respected in all circumstances regardless of the behaviour of the other party". With "the great majority of legal authorities" it "assert[s] that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party" ; language, incidentally, which clearly indicates that the Chamber is thinking here of belligerent reprisals in the legal sense and is aware of the conditions needed to justify such measures .

to those persons who find themselves in the hands of a party to the conflict, and does not extend to situations of combat. 27

28

Ibid ., para. 4776 . Actually, the text the ICRC relies on for this statement refers to the general notion of protection of the civilian population, in the words of Article 13 (I), against "the dangers arising from military operations " .

The argument of the Trial Chamber on the reprisal issue is in paras 15-18 of the Decision .

Reprisals and the Protection of Civilians

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To bolster its argument the Trial Chamber adduces article I common to the 1949 Geneva Conventions, which, it says, obligates contracting states "to respect and to ensure respect for the Conventions, even when the behaviour of the other party might be considered unlawful". The closing part of the sentence is not in the text of article I and is an interpretation the Chamber places on the article." Nor do the 1949 Geneva Conventions deal with the protection of the civilian population against the effects of hostilities, or a fortiori with the issue of reprisals in that context. Equally irrelevant is therefore its reference to the Judgement of the International Court of Justice in the Nicaragua case, where it holds that the obligation of the United States to respect and to ensure respect for the Conventions "derives not only from the Conventions themselves, but also from the general principles of humanitarian law to which the Conventions merely give specific expression'S" Thi s holding too applies only to the Conventions. Like Mr. Ostberg, the Trial Chamber seeks further support in General Assembly resolution 2675,31 with its suggestion that "civilian populations, or individual members thereof, should not be the object of repri sals". The resolution, adopted in December 1970 at an early stage of the discussions about "reaffirmation and development of international humanitarian law", gives expression to a widely shared feeling at the time that such a prohibition ought to be achieved. As we know, this is what was done in 1977 with the adoption ofArticle 51 (6) of Protocol I. As we also know, Protocol II does not contain a similar clause. In that respect, the Trial Chamber argues that "a prohibition against such reprisals [against the civilian population in internal armed conflict] must be inferred from its Article 4" . On that article, I may refer to what I wrote earlier on Mr. Ostberg's use of the same argument." My conclusion that Article 4 of Protocol II is irrelevant to the matter of reprisals against the civilian population in a situation of internal armed conflict is not altered by the reference in the Decision of the Trial Chamber to the prohibition of "collective punishments" in Article 4 (2)(b) . With the rest of that article, this specific

29

Common Article 1 reads as follows : "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." On the drafting history and interpretation of this article see F. Kalshoven, 'The Undertaking to Respect and Ensure Respect in All Circum stances : From Tiny Seed to Ripening Fruit' , 2 Yearbook of International Humanitarian Law (1999), pp. 3-61.

30

ICJ Reports 1986, para. 220 .

31

Supra note 18.

32

Supra p. 489 .

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clause belongs to the realm of Geneva-style "humane treatment" , not to that of the Hague-style protection of civilian populations "against the dangers arising from military operations "." The Trial Chamber concludes that." the rule which states that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, even when confronted by wrongful behaviour of the other party, is an integral part of customary international law and must be respected in all armed conflicts. In my submission , these conclusions are unsubstantiated. The Trial Chamber has not convincingly shown that reprisals against the civilian population are banned as a matter of customary international law, nor that the treaty prohibition of reprisal s against the civilian population applies outside international armed conflicts. As a last legal point, the Trial Chamber establishes that violations of the type discussed meet the criteria for a "serious" violation spelled out by the Appeals Chamber in Tadic '> (that "the violation must undermine important values and it must have serious consequences for the victim or victims") and that all other conditions for the competence of the International Tribunal are met. Turning next to the facts of the case, and first, to "the military and political situation prevailing at the time of the attacks on Zagreb in May 1995", the Chamber holds that "there can be no question that the armed forces of the Republic of Croatia and the armed forces of the self-proclaimed Republic of Serbian Krajina were engaged in an armed conflict". This formulation seems odd. Taken literally, the "time of the attacks on Zagreb" was 2 and 3 May 1995; on those dates, and indeed since the Croatian attack on I May, the armed forces of the two parties were doubtless "engaged in an armed conflict". This does not however appear to

33

34

35

The reference to "collective punishments" introduces into Protocol II a notion that was already embedded in Article 33 of the Fourth (or Civilians) Geneva Convention of 1949: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measure s of intimidation or of terrorism are prohibited". Its conclu sion is in paragraph 17; in paragraph 18, it adds a point that has to do with the indiscriminate character of the Orkan rocket, equipped as it was in the case at issue with a fragmentation-type warhead and used against a location where no military objectives were to be found . As not directly relevant to the reprisal question , I leave this aspect of the case on one side.

Supra note 16.

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be what the Chamber wants to convey. Its reference to the "military and political situation prevailing at the time of the attacks" suggests that in its perception , even before I May 1995 there was a situation of armed conflict. Actually, as noted above, the situation that prevailed for several years in the area was an UNPROFOR-monitored cease-fire. Characterising it nonethele ss as an armed conflict, the Trial Chamber appears to apply the dictum of the Appeals Chamber in Tadic that: "[i]nternational humanitarian law ... extends beyond the cessation of hostilities until .. . a peaceful settlement is achieved" .36 Assuming for the sake of argument that this dictum is correct ,' ? the fact of the matter is that, prior to 1 May 1995, the two parties might at most be regarded as politically, rather than militarily, "engaged in an armed conflict". The Trial Chamber finally notes that the evidence shows that Martie ordered the attacks and that these had been planned and prepared. On the basis of this and all other evidence, it is: satisfied that there are reasonable grounds for believing that on 2 and 3 May 1995, the civilian population of the city of Zagreb was attacked with Orkan rockets on orders from Milan Martie, the then president ofthe self-proclaimed Republic of Serbian Krajina.. . . the use of the Orkan rocket in this case was not designed to hit military targets but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law .. . and fall within the jurisdiction of the Tribunal .. . The Chamber therefore is satisfied that there is reason to reconfirm all four counts of the indictment against Milan Martie [...] In sum, the Trial Chamber went out of its way to identify every imaginable rule, principle or consideration justifying in its eyes, first, the conclusion that the International Tribunal under Article 3 of its Statute has jurisdiction over attacks against the civilian population, carried out in any type of armed conflict in the territory of the former Yugoslavia in the period since 1991; second, its decision to reconfirm the indictment against Martie. By way of final comment, I note that while the attack launched by Croatia on 1 May 1995 was an unmistakable breach of the cease-fire (and thus, if such a thing exists, a violation of jus ad bellum internum),

36

Tadic, para. 70.

37

The Appeals Chamber may have had its reasons for this construction in the Tadic case . When applied to the situation of cease-fire in Marti!" the incongruous result is a prolonged period of "armed conflict" totally devoid of events requiring application of humanitarian law.

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the facts set forth in the Decision do not warrant the conclusion that it should also be regarded as an unlawful attack on the civilian population in the Serb-held part of Croatia's territory and, as such, as a violation of jus in bello as well . It remains therefore unclear why the Chamber chose to discuss the matter of reprisals against civilians in internal armed conflicts at all.

III. THE KUPRESKIC JUDGEMENT The Judgement of Trial Chamber II in the Kupreskic case" is as long as the Martie Decision is short : 340 pages compared with 13. An introduction on procedure (Part I) and a list of the charges against the six accused (Part IT) are followed by three substantive parts: Part 1lI describes the general background." Part IV sets forth the evidence on the role of each of the accused." and Part V presents the views of the Chamber on the applicable law." Three short parts conclude the Judgement: Part VI on legal findings, Part VIT on sentencing, and the Disposition in Part VIII. At the centre of the case stands an attack carried out on 16 April 1993 by Bosnian Croats on the Muslim population in the village Ahrnici, located on the route between Busovaca and Vitez, in the Lasva River Valley in central Bosnia. The attack had been preceded by a period of rising "tensions and animosity" between the ethnic Croat and Muslim parts of the population in the region , in the course of which "relations betwe en the two groups worsened and each group increasingly engaged in a policy of discrimination against the other"." After examining the evidence relating to discrimination and persecution on either side, the Trial Chamber chooses to leave unanswered "[w]hether the Croats pursued this policy in a more fierce and ruthless way and on a larger scale" ." To

38

Supra note 9; the accused are Zoran , Mirjan and Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vlad imir Santic,

39

Paras 38-338.

40

Paras 339-509.

41

Paras 510-748.

42

43

Para. 125.

Ibid. The Trial Chamber supports this decision with the argument that "the fact that the adversary engages in unlawful behaviour and persecutes or kills civilians cannot be ajustification for similar or reciprocal conduct". The point is expounded more fully in the Chamber's discussion (and rejection) of the tu quoque argument; infra para. 20.

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the extent that the policy was carried out by the armed forces of both parties, its findings leave no doubt that the Croatian forces (the HVO) were the stronger." In the organised, vicious attack on Ahmici ," numerous Muslims of all ages and both male and female, were savagely murdered, raped and tortured. The Trial Chamber specifically finds that the attack "was aimed at civilians for the purpose of 'ethnic cleansing':'." The six defendants, all of them Bosnian Croats from Ahmici and members of the HVO, stood trial for their part in the preparation and execution of the attack on the Muslims in Ahmici. Particularly shocking is the realisation that, in many instances, they had known the victims all their lives . The Trial Chamber obviously was obliged to establish in minute detail the facts about each defendant's part in the events. For the purposes of this paper, there is no such need to go into the individual cases. Suffice it to mention that while none of the accused were found guilty of the "violations of the laws or customs of war" (Statute, Article 3) charged against them, all but one of them were found guilty of "crimes against humanity" (Article 5) and were sentenced to terms ranging from 6 to 25 years' imprisonment.'? The lack of geographical distance and the close links between the accused and their victims are but one feature that sets the Kupreskic case apart from the Martie case . Other differences are the status of the accused (ordinary villagers vs. the president of a self-proclaimed republic) and the type of crime (crimes against humanity vs. violation of the laws or customs of war). Then, Martie was a Rule 61 case with a one-day hearing, and Kupreskic, a procedure that lasted more than four

44

45

46

47

The armed forces in the area were a mixture of regular and paramilitary forces, with the forces of the Croatian Defence Council (or HVO) being "better armed and equipped, and .. . able to set up more checkpoints than the [mostly irregular) Bosnian Territorial Defence" (para. 146). "Indisputably, what happened on 16 April 1993 in Ahmici has gone down in history as comprising one of the most vicious illustrations of man's inhumanity to man" (para. 755). Para. 338 ; the sentence that follows the quoted phrase shows once again how close the reprisal issue was to the Judges ' minds: "Whether the forced expulsion of Muslims from Ahmici was motivated by the strategic purpose of removing a Muslim pocket as [sic) the route between Busovaca and Vitez, or was instead conceived of as a retaliation against the attacks by Muslim armed forces on Kuber and a few predominantly or exclusively Croatian villages of the area is a question that the Trial Chamber may leave unresolved for the purposes of this case" . Part VIII (Disposition).

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years and in the course of which the Trial Chamber heard a total of 156 witnesses over III days." The only features the two case s appear to have in common are, first, that they focus on events of short duration: two days for the attack on Zagreb, one day for the attack on Ahmici; second, that the attacks in either case were directed against the civilian population; and third, the suggestion that an aspect of retaliation, or reprisal, might be involved. The Trial Chamber broaches the matters of reciprocity and reprisal in the context of the protection of civilians in a comparatively short section on "preliminary issues '?" that opens Part V on the applicable law. It is followed by long sections on "crimes against humanity", "persecution as a crime against humanity", and "the question of cumulation of offences (concursus delictorumf'P' Interesting though the latter sections may be, they belong to the realm of international criminal law and are therefore left out of consideration here. With that, the "preliminary issues" of the first section is the only remaining part of the Kupreskic case to be discussed in this paper. They are threefold: (l) the inapplicability of the tu quoque principle; (2) the sacrosanct character of the obligation to respect and protect civilians; and (3) the limited importance of precedent. Little need be said about the first issue. Noting that defence counsel had "indirectly or implicitly relied upon the tu quoque principle, i.e., the argument whereby the fact that the adversary has also committed similar crimes offers a valid defence to the individuals accused", the Trial Chamber categorically rejects the argument, on two grounds. The first ground is that the argument was universally rejected already at the time of the war crimes trials following the end of the Second World War and finds "in fact no support either in State practice or in the opinions of publicisrs"." The second is that the argument is "flawed in principle". Humanitarian law generally speaking is not based on reciprocity, and "individual criminal responsibility for serious violations of that law may not be thwarted by recourse to arguments such as reciprocity't.V

48

Paras 29, 32-37. A good deal of the testimony consists of sheer horror stories, which cannot have failed to leave an indelible impression on the Judges' minds.

49

Paras 510-542.

50

Respectively, sections B (paras 543-566), C (paras 567-636) and D (paras 637-748).

5\

Para. 516.

52

Para. 517 (see also supra note 43) . Elaborating the latter point, the Chamber sets forth its views on "the progressive trend towards the so-called "humanisation" of intemationallegal obligations, which refers to the erosion of the role of reciprocity in the application of

Reprisals and the Protection of Civilians

497

The Trial Chamber next brings up the subject of the "protection of civilians in time of armed conflict, whether international or national" , as "the bedrock of modem international humanitarian law" . This "bedrock" is elaborated into two principles: the prohibition against targeting the civilian population as the object of attack; and the obligation in the course of military operations to spare the civilian population as much as possible. With regard to the first principle, the Trial Chamber identifies as "a universally recognised principle, recently restated by the International Court of Justice", a rule that "deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law"." With respect to the second principle, the Trial Chamber posits that "international law contains a general principle prescribing that reasonable care must be taken . .. so that civilians are not needlessly injured through carelessness"." While this seems a surprisingly minimalist reading of the principle." the Trial Chamber next goes to the other extreme , asserting that the principle of reasonable care " has

humanitarian law over the last century"; the increa sing awareness that international humanitarian law is "primarily designed to benefit individuals qua human beings" and compliance therefore cannot be made dependent on reciprocity; the erga omnes character of the norms of humanitarian law, which "lay down obligations towards the international community as a whole"; and the fact that "most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genoc ide, are also perempt ory norms of international law or ju s coge ns"; paras 518-520. 53

54 55

Para. 52 1. The actual statement of the Court is that given the distinction between combatants and civilians, "Stat es must never make civilians the object of attack and must consequently never use weap ons that are incapable of distinguishing between civilian and military targets" ; Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion . ICJ Reports 1996, para. 78. The Court discusse s neither reprisals nor internal armed conflict, and in effect admit s its incapacity to "reach a definitive conclusion as to the legality or illegality of the use of nuclear weapon s by a State in an extreme circumstance of self-defence, in which its very survival would be at stake" (para . 97). Note that Protocol II contains no general prohibition to attack civilian object s, and indeed specifics no distinction between those objects and military objectives. Judgement, para. 524. The United Nation s General Assembly already in 1968 set a considerably more exacting general standard when it identified as the purpo se behind the distinction between combatants and civilian s "that the latter be spared as much as possible"; General Assembly res. 2444 (XXIII), 19 Dec. 1968, supra note 18. Similarly, Article 57 ( I) of Protocol I of 1977 provide s that "In the condu ct of military operati ons, constant care shall be taken to spare the civilian populati on, civilians and civilian objects" .

498

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always been applied in conjunction with the principle of proportionality, whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack"; a controversial statement to which it correctly adds that the principles so defined "have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977" .56 In actual fact, the term "proportionality" does not figure in Protocol I, because it was held to be too much of a mathematical formula and therefore to be unsuitable as a test of combatant behaviour. Instead, the text refers to damage that "would be excessive in relation to the concrete and direct military advantage anticipated" (Article 57 (2)(a)(iii» . And, it may be repeated once again, Protocol IT contains no comparable provision . The phrase "to some extent", emphasised by me in the quotation above, conveys a sense of dissatisfaction, as does the remark in a following sentence that Article s 57 and 58 "leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party"." But not to worry: here the International Court of Justice's "elementary considerations of humanity " come to help; these "should be fully used when interpreting and applying loose international rules , on the basis that they are illustrative of a general principle of international law" .58 It is surprising, to say the least, to find the provisions of Article 57 referred to as "loose international rules" . Actually, the rules are the outcome of long and intense negotiations between the diplomats , officers, lawyers and medical doctors who, representing the large number of states that participated at the Diplomatic Conference of 1974-1977 , drafted the 1977 Protocols. The result of this painstaking process is a set of detailed rules tying the hands of an attacker as tightly as was found militarily acceptable. "Loose rules" indeed !

56

57

58

Judgement, para . 524 . Article 57 (Precautions in attack) is the first of two articles composing Chapter IV (Precautionary Mea sure s) of Section I (General Protection against Effects of Hostilities) of Part IV (Civilian Population) of Protocol I. Article 58 deal s with " Precautions against the effects of attacks". It is simply incorrect to state that the principle of "no needless damage to civilians" has "always been applied in conjunction with the principle of proportionality": the actual conduct of belligerents often show s a marked lack of respect for either principle.

Ibid. It is difficult to see how Article 58 might "leave the last word to the attacking party", given that its provisions set forth precautions to be taken "against the effects of attacks". Ibid.

Reprisals and the Protection of Civilians

499

The Trial Chamber, adding insult to injury, goes on to suggest that here, "recourse might be had to the celebrated Martens Clause't. v According to its terms and drafting history/" this venerable clause is designed to help out in situations where negotiating parties ultimately failed to resolve an outstanding issue . This does not keep the Chamber from utilising the clause as one more device to correct what it apparently regards as a deficient rule of treaty law. In terms evidently meant to highlight the virtues of the clause, it asserts that it:61 enjoins , as a minimum, reference to [the principles of humanity and the dictates of the public conscience] any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the rule must be defined with reference to those principles and dictates. In the case under discussion , this would entail that the prescriptions of Articles 57 and 58 (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians . Noting in passing that the Trial Chamber now also uses the Martens Clause as a corrective device for (apparently equally loose) rules of customary law, my main point of criticism concerns its fundamental misconception of the character of Article 57 on "precautions in attack". It may be repeated that the article places a series of detailed, stringent restrictions on parties planning, deciding, launching and carrying out an attack that may entail risks for the civilian population." Yet, they are rules of warfare, not of charity. Any interpretation one would wish to place on the rules that would effectively preclude the conduct of normal military operations is bound to remain a dead letter. Perhaps even more striking than what the Trial Chamber writes is the very fact that it discusses the protection of the civilian population against the side effects of attacks on military objectives. The Kupreskic case concerns a wanton attack on Muslim civilians in a village devoid of military objectives . The death and injury inflicted upon the victims was the opposite of collateral damage : it was purely intentional. While some of the accused were charged with "violations of the laws

59

Para . 525 .

60

Supra note 19.

61

Para . 525.

62

Article 57 (2) is divided into a number of sub-paragraphs dealing with each of the categories mentioned in the text.

500

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or customs of war" (of which they were found not guilty) these charges never included excessive harm to civilians in the course of an attack on military objectives. The frontal attack of the Trial Chamber on the "loose" rules of Articles 57 and 57 of Protocol I is therefore completely out of place. It also betrays a regrettable lack of understanding of the function of those articles in the context of the general protection of civilian populations against the effects of hostilities. This part of the Judgement is not merely obiter dictum but should be disregarded as male dictum. Continuing its argument about the protection of the civilian population, the Trial Chamber discusses at some length the issue of reprisals against civilians/" It begins by stating that Article 51 (6) of Protocol I prohibits reprisals against civilians "in combat zones". Surprise again: the article does not contain such a restriction and prohibits "attacks against the civilian population or civilians by way of repris als" no matter where they are found." The restriction is especially inappropriate in the context of Kupreskic, where the attack on the Muslims clearly did not take place in a zone of combat between opposing armed forces : the Trial Chamber itself, towards the end of its Judgement, "is satisfied, on the evidence before it in this case, that [the attack] was not a combat operation't.w And, another point of note, the Chamber does not mention here, nor anywhere else in its discussion of the reprisal issue , that Protocol II on internal armed conflicts is silent on the matter. Rather, the Trial Chamber embarks on an investigation of whether the treaty provision of Article 51 (6), together with that in Article 52 (1) outlawing reprisals against civilian objects, has perhaps "been transformed into general rules of international law" . The Chamber notes that there may be a lack of usus. Here, however, Martens shows up as a deus ex machina: "the way States and courts have implemented" the Martens Clause indicates that we have here an area "where opinio iuris sive necessitatis may playa much greater role than usus", and "principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State

63

64

65

Judgement, paras 527-536 . Actually, the whole notion of "combat zone" does not figure in the Protocol. Closest comes Article 15 (2) where, in the context of protection of civilian medical and religious personnel, it is provided that "If needed, all available help shall be afforded to civilian medical personnel in an area where civilian medical services are disrupted by reason of combat activity" (italics supplied). Judgement, para . 749.

Reprisals and the Protection of Civilians

501

practice is scant or inconsistent". Indeed, "opinio necessitatis, cry stallising as a result of the imperatives of humanity or public conscience, may tum out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law" . And, 10 and behold: this is exactly what has happened with reprisals against civilians. These are "inherently barbarous" and are "not directed specifically at the individual authors of the initial violation" but instead at "vulnerable individuals or groups" who "may not even have any degree of solidarity with the presumed authors of the initial violation; they may share with them only the links of nationality and allegiance to the same rulers".66All true, as with all belligerent reprisals. Somewhat less satisfactory is the next step in the Trial Chamber's line of reasoning: "the reprisal killing of innocent persons . . . without any requirement of guilt or any form of trial" amounts to "a blatant infringement of the most fundamental principles of human rights " . As a result of "a slow but profound transformation of humanitarian law under the pervasive influence of human rights . . . belligerent reprisals against civilians and fundamental rights of human beings are absolutely incon sistent legal concepts't.' ? This may be so, but it is begging the que stion. After all, reprisals are meant to be infringements of the law, and unless they can be shown to have been prohibited, the only que stion is whether the y can be j ustified in the circ umstances . Even more tenuous is the final part of the argument, according to which reprisals are no longer necessary since another "means of inducing compliance with international law" has become available "and, more importantly, is beginning to prove fairly efficacious: the prosecution and punishment of war crimes and crimes again st humanity by national or international courts" . While this statement leaves one wondering how a Trial Chamber of the International Tribunal can submit that the instrument of "prosecution and puni shment [.. . J is beginning to prove fairly efficacious" , even more surprising is its next sentence, where it state s that this means serves not only to bring the perpetrators to justice but, also, "albeit to a limited extent, the purpose of deterring at least the most blatant violations of international humanitarian law" .68 I do not know on what information the Chamber founds this statement. As far as I am aware, there has been no recent decline in the incidence of blatant violations of international humanitarian law.

66

Para. 528.

67

Para. 529.

68

Para. 530 .

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Entirely satisfied by the evidence it has adduced, the Trial Chamber concludes that "due to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion't.s? This matter, it may be recalled, was the prohibition of reprisal s against civilians "in combat situations ", and the purpose of the exercise was to find out whether the treaty obligation of Protocol I - which is applicable in international armed conflicts - has been transformed into a general or customa ry rule. The Trial Chamber has convinced itself that this is indeed the case . Yet, several questions remain . One is whether this presumed general rule binds states that expressly or implicitly have rejected it. Another question, and a much more important one, is whether it should also be deemed to apply in situations of internal armed conflict - for which, as noted repeatedly in the foregoing, no rule comparable to Articles 51 (6) and 52 (1) of Protocol I has been included in Protocol II. The matter of dissident states is touched upon twice by the Chamber. The first occasion is in a footnote to its argument that a high number of states meanwhile have ratified Protocol I "thereby showing that they take the view that reprisals against civilians must always be prohibited" (so that opinio iuris sive necessitatis "can be said to exist"). Leaving on one side the fact that the Chamber here optimistically disregards the inclination of states to accept a treaty obligation as part of a package and with a mental reservation, it does refer in a footnote?" to the express reservation made in 1998 by the United Kingdom on the occasion of its ratification of Protocol I. This spells out in clearest possible terms the strict legal conditions under which that country, in the face of "seriou s and deliberate attacks" by an adverse party on civilians or civilian objects, "will regard itself as entitled to take measures otherwise prohibited" by Articles 51-55 .7' And the Chamber fails altogether to refer to the statement that Italy in 1986 attached to its ratification, specifying that it " will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particula r its Article s 51 and 52 with all means admissible under international law in order to prevent any further violation" ." Although less explicit than the British reservation , its purport is exactly the same .

69

Para. 53 I.

70

Para. 532 , n. 787.

7\

For the full text of the reservation , see Documents, p. 511 .

72

Docum ents, p. 507 .

Reprisals and the Protection of Civilians

503

The second occasion occurs in the framework of the Chamber' s argument that "in the numerous international or internal armed conflicts which have taken place in the last fifty years, participating states "have normally refrained from claiming that they had a right to visit reprisals upon enemy civilians in the combat area"." The argument sounds rather strange in relation to the indeed "numerous" internal armed conflicts of that period , most of them of the "common Article 3" type, and with the states involved for obvious reasons not claiming a right to take reprisals against "enemy" (i.e., their own) civilian s in a "combat area" (if such an area could be identified within their own territory) . As for the rare cases of international armed conflict of the period, the Chamber correctly notes that a claim of reprisal has been made by Iraq in its 1980-1988 war with Iran." Neither state, incidentally, was party to Protocol I, and it seems unlikely that the prohibiti ons on reprisals against civilians in the Protocol could already have acquired a status as customary or general law at the time; so, the example of Iraq claiming a right of reprisal may not even count. This leaves only the "hypothetical" claims made "by a few States, such as France in 1974 [which voted against the prohibitions on reprisals]" and the United Kingdom in 1998", and of these, only the British precedent counts (together with the once again omitted Italian statement). However, even if Iraq has remained the only state after 1977 to claim a right of reprisal against the enemy civilian population in the handful of international armed conflicts that actually occurred in that period, and even though only the United Kingdom and, plausibly, Italy, have, to date, reserved a right to take recourse to such reprisals in the hypothetical case of their becoming involved in such a conflict, this does not mean that other states will not take recourse to such measures without having reserved a right to do so. The conclusion of the Chamber that all of th e above "su ppo rts th e co nte ntio n th at th e demands of humanity and th e di ctat e s

73 74

75

Judgement , para. 533. The Chamber in paragraph 533 refers to an ICRC memorandum of 7 May 1983 to the states parties to the 1949 Geneva Conventions on the Iraq-Iran war, which states in part that systematic attacks on civilian s and civilian object s "are inadmissible, the more so that some were declared to be repri sals before being perpetrated" . Ironically, warning is one of the precondition s that could have turned the Iraqi attacks into a legitimate reprisal. At the Diplomatic Conference, France frantically and ultimately in vain attempted to find agreement on a formul a that would specify the conditions for a legitimate recourse to reprisals against an enemy civilian population. France, it may be noted, is not yet a party to Protocol I.

504

Chapter 23

of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of a customary rule also binding upon those few States that at some stage did not intend to exclude the abstract legal possibility of resorting to the reprisals under discussion" may therefore be founded on quicksand. As for the more important issue of reprisals against civilians in internal armed conflict, apart from noting that states participating in such conflicts "have normally refrained from claiming" a right to take reprisals against their own civilians, the Trial Chamber circumvents the problem posed by the silence of Protocol II by just not referring to it. 76 Instead, it relies on a statement made by the International Law Commission in its 1995 Report on state responsibility, where it notes that common article 3 of the 1949 Conventions "prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment","? Obviously, common article 3 does not contain a textual prohibition of reprisals; yet, it arguably excludes reprisals against the persons it protects by virtue of the "all circumstances" clause. This category does not however include civilians in "combat zones" (as the Chamber prefers to style what Protocol I refers to as "effects of hostilities", and Protocol II, Article 13 (I), as "the dangers arising from military operations"): as with the rest of the 1949 Conventions, common article 3 does not govern the conduct of hostilities." The conclusion the Chamber draws from the Commission's opinion, that "reprisals against civilians in the combat zone are also prohibited" is therefore unfounded, and completely disregards the fact that a quarter-century after 1949, all attempts to include a prohibition on reprisals into Protocol II, in the provisions protecting the civilian population from the dangers of actual combat, failed miserably,"?

76

77

78 79

Except for paragraph 536, where the Chamber notes that in Kupreski c, "the treaty provisions prohibiting [reprisals against civilians] were in any event applicable" because in 1993, both Croatia and Bosnia-Herzegovina were party to Protocols I and II, so that "whether or not the armed conflict of which the attack on Ahrnici formed part is regarded as internal, indisputably the parties to the conflict were bound by the relevant treaty provisions prohibiting reprisals". It would have been worthwhile for the Chamber to look up Protocol II and note that it contains no such provision .

Yearbook of the International Law Commission, 1995, vol. II, Part Two, NCNA/SER.N 1995/Add .1 (Part 2)(State responsibility), para. 18, p. 72. Supra pp . 489-490. The Trial Chamber adds that common Article 3 "has by now become customary international law" and, as "rightly held" by the International Court of Justice in Nicaragua, "encapsulates

Reprisals and the Protection of Civilians

505

The Trial Chamber sets out at length its arguments how and why reprisals against the civilian population are prohibited both as treaty law, not only in international armed conflicts but in internal armed conflicts as well and as a sort of "necessary" general international law in any armed conflict. Thus it comes as a surprise that, as its next step, it sees a need to point out that reprisals, "even when considered lawful", are restricted by a number of principles." last resort, warning, high-level decision , proportionality, termination when goal is achieved, and, the Chamber adds: "elementary considerations of humanity" - the condition which, as noted before, has from the outset remained controversial. In any event, one may consider even that condition satisfied if, as in the United Kingdom reservation , reprisals will only be considered "if an adverse party makes serious and deliberate attacks [...J against the civilian population or civilian objects" and if, apart from other conditions, they "will not involve any action prohibited by the Geneva Conven tions of 1949". In sum, none of the arguments advanced by the Trial Chamber have succeeded in convincing me that the prohibition of reprisals against the civilian population has acquired any greater force than as treaty law under Protocol I, or that it extends, whether as conventional or customary law, to internal armed conflicts as well. Furthermore, as with the obiter discussion by the Chamber of the rules in Protocol I on precautions to be taken in attacking military objectives, the discussion of the reprisal issue may also be regarded as out of order, or at best, as being based on the flimsy excuse of the "indirect or implicit reliance" by the Defence on tu quoque mentioned earlier." As far as the Judgement shows, the Defence had not turned its reference to similar acts committed by Muslims to Croats into a claim that the acts of the accused constituted justifiable reprisals.

fundamental standards of overarching value applicable both in international and internal armed conflicts" (para. 534) ; whatever one may think of these statements, they are in any rate irrel evant, given the inapplicability of Article 3 to the issue of reprisals against the civilian population . 80

Para . 535 .

8\

Supra, p. 496 . In Part VI (Legal findings) under D (para . 765) , the Trial Chamber once again returns to the question: "As pointed out above in the section on the applicable law, in international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principle ... or on the strength of the principle of reprisals . Hence the accused cannot rely on the fact that allegedly there were also atrocities committed by Muslims against Croatian civilians ." But did they ?

506

Chapter 23

Given the frequent criticism in the above of the views developed by the Trial Chamb er on the issues of protection of the civilian population and reprisals, it appears opportune to complete the discussion of its Judgem ent in the Kupreskic case with an overview of the third and final point dealt with by the Chamber in its chapter on preliminary issues, i.e., "the importance the International Tribunal can attach to case law in its findings of law" . Evidently, the findings of the Trial Chamber on this issue may be relevant to other (international or national) courts or bodies that wish to know how much store they can set by the Judgem ents of the International Tribunal , and the Kupreskic Judgement in particular. The Trial Chamber takes up the issue of the value and binding force of precedent because its Judgement "is largely based on international and national judicial decisions" .82 Asking itself whether the International Tribunal is "an international court proper" , it bases its affirmative answer on "the intent of the Securit y Council", the "structure and functioning " of the International Tribunal, and the fact that "it is called upon to apply international law". Indeed, that body of law is "the normative co rp us to be appli ed by the International Tribunal prin cipa liter", National law may enter the picture, either "to fill possible lacun ae in the Statute or in customary international law", or "incidenter tantum", when the applicability of a given rule of internati onal law can only be determ ined by reference to domestic law,"

82

83

Para. 537. This reliance is most marked in the next chapters on applicable law. where the Chamber extensively discusses the state of the law with respect to crimes against humanity. persecution as a crime against humanity. and the question of cumulation of offences. Para. 539; as an instance of this incidental j urisdiction. the Chamber mentions the situation where the point at issue is whether someone is a "protected person" under the Fourth Geneva Convention of 1949: "To this end [the International Tribunal] may have to satisfy itself that the person possessed the nationalit y of a State other than the enemy belligerent or Occupying Power. Clearly. this enquiry may only be carried out on the basis of the relevant national law of the person concerned." The example reminds us of the Tadic case, where the opinion of Trial Chamber II that the victims could not be said to have been "in the hands of a party to the conflict of which they were not nationals" (Prosecutor v. Dusko Tadic, Case No. IT-94-1. Opinion and Judgement. 7 May 1997. para. 608) was reversed by the Appeals Chamber: the victims had well and truly "found themselves in the hands of armed forces of a State [the Federal Republic of Yugoslavia] of which they were not national s". It added that "Article 4 of Geneva Convention IV. if interpreted in the light of its obj ect and purpose. is directed to the protection of civili ans to the maximum extent possible... . In granting its protection. Article 4 intends to look to the substance of relations. not to their legal characterisat ion as such" (Prosecutorv. Dusko Tadic, Case No.IT-94-I -A, Judgement. 15 July 1999, paras 167. 168).

Reprisals and the Protection of Civilians

507

"Being international in nature and applying international law principaliter", the next question for the International Tribunal is what sources of international law it can rely upon; and specifically, what is the status of judicial decisions? Article 38 (I )(d) of the Statute of the International Court of Justice qualifies these as merely "subsidiary means for the determination of rules of law" . Hence, apart from "the binding force of decisions of its own Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis) ", be they precedents established by the Nuremberg or Tokyo Tribunals or by national courts . The Trial Chamber continues: Similarly, the Tribunal cannot rely on a set of cases, let alone on a single precedent, as sufficient to establish a principle of law: the authority of precedents (auctoritas rerum similiter judicatarum) can only consist in evincing the possible existence of an international rule . More specifically, precedents may constitute evidence of a customary rule in that they are indicative of opinio iuris sive necessiatis and international practice on a certain matter, or else they may be indicative of the emergence of a general principle of international law. Alternatively , precedents may bear persuasive authority concerning the existence of a rule or principle, i.e. they may persuade the Tribunal that the decision taken on a prior occasion propounded the correct interpretation of existing law. Plainly, in this case prior judicial decisions may persuade the court that they took the correct approach, but they do not compel this conclusion by the sheer force of their precedential weight. Thus , it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts . This lengthy quotation finds its justification in the importance of the principle it sets forth. The "Justinian maxim", in effect, applies not only to the International Tribunal taking cognisance of what other (international and domestic) courts have done , but with equal force to the outside world noting what the International Tribunal is doing . To that wider public, its judicial decisions , as "subsidiary means for the determination of rules of law", have no binding force of precedent and may at best have "persuasive authority concerning the existence of a rule or principle , i.e., they may persuade [the public] that [their decisions] propounded the correct interpretation of existing law". They obviously may also fail to do SO .84

84

Elsewhere in the Judgement, where the Trial Chamber is "delving into [the] new area of international criminal law" , it modestly notes that "its powers in finding the law are of course

508

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IV. CONCLUSION It will not come as a surprise that to this author, both the Martie Decision and, even more so, the Kupreikic Judgement fall in the category of judicial decisions that not merely have no binding force of precedent but lack persuasive authority, because they do not "propound the correct interpretation of existing law". This both on the matter of protection of the civilian population against the effects of hostilities and on that of reprisals against the civilian population. With regard to both issues, I am afraid the judges (and once again, specifically those sitting in Kupreskic cum suis , because they had more time and wrote at greater length) have been guilty of an attempt to rewrite the law. They did so on many points of detail, which I shall not recapitulate here . They did it principaliter, however, by substituting rules of treaty law (which they regarded as unsatisfactory) with certain broad considerations, notably the "elementary considerations of humanity" (once relied upon by the International Court of Justice in a totally different context) and the Martens Clause (a saving device for situations on which states failed to agree on treaty language). This is an impermissible method for a court of ju stice, which (in the words ofTrial Chamber II) "must apply lex lata , i.e., existing law", notwithstanding its "broad powers in determining such law"." And they did it in relation to points they needed not have discussed at all. As for Martie, the discussion of reprisals, initiated by the Prosecutor, need not have been pursued by Trial Chamber I, not even ex abundante cautela : for its Rule 61 Decision it sufficed to put on record the evidence adduced by the Prosecutor relating to Martie's responsibility, and the matter of a possible excuse could have been left to the time the defence was actually raised . As for Kupreskic, it is totally incomprehensible why Trial Chamber II saw fit to take up the issue of precautions in attack , as provided for in Article 57 of Protocol I. With respect to the reprisal issue, Trial Chamber II failed in its attempt to demonstrate that such measures against civilians are prohibited as a matter of treaty law not only for international armed conflicts (as they are) but for internal armed conflicts as well. It also failed to mention that Protocol II is purposely silent on the point. Had it acknowledged this point (and therefore dared to identify the conflict

far more limited than those belonging to the Roman Praetor: under the International Tribunal' s Statute , the Trial Chamber must apply lex lata, i.e ., existing law, although it has broad powers in determining such law" (para. 669). 85

Supra note 84.

Reprisals and the Protection of Civilians

509

in the Kupreikic case as an internal armed conflict) it actually could have developed an argument along the Marten s lines. As with the position of resistance fighters in occupied territory, which remained unregulated in 1899 and therefore fell under the Martens Clause, so too the fact that the issue of reprisals against civilians in a situation of internal armed conflict was left unregulated in 1977 may lead to the conclusion that the position of these people falls specifically under the terms of the fourth preambular paragraph of Protocol II, which recalls that in such cases, "the human person remains under the protection of the principles of humanity and the dictates of the public conscience" . This cannot lead to the conclusion that reprisals against civilians are as much prohibited in an internal armed conflict as they are in an international one (where the prohibition, for that matter, may not be as watertight as might be expected on the face of it). It may, on the other hand, be argued that on top of the categorical prohibition of attacks against civilian s, reprisals meeting the conditions therefor as developed in relation to international armed conflict should only be resorted to in the rarest of cases, and then perhap s, as in the United Kingdom reservation , only after the planned action has been notified to a neutral institution like the JCRe. The above suggestion may sound futuristic, if not implau sible. The point is that the notion of "reprisals" as a legal device, wielded by parties to an internal armed conflict yet meeting all the conditions therefore, is itself highly implausibl e and seems conceivable only in a conflict that resembles an international armed conflict in all significant respect s - as was briefly the case, for instance, when Croatia launched its attack against the part of its territory temporarily known as the Republic of Serbian Krajina. The situation in the Lasva River Valley in central Bosnia, on the other hand, is a typical example of an internal armed conflict where reprisals as a legal device could never find a place.

510

24

IS THERE A HIERARCHY OF CRIMES IN INTERNATIONAL LAW? Richard May and Marieke Wierda

I. INTRODUCTION In 1947, Trygve Lie, the Secretary-General of the United Nations, commenting on the newly-formulated crime of genocide, said that international law should avoid confusion and called for it to be built on a rational, logical basis: "each idea must be properly defined and not overlap others".' However, the core crimes - genocide, crimes against humanity and war crimes - now recogni sed as most suitable for prosecution at the international level,' were mostly formulat ed in the aftermath of the Second World War in circumstances which "led to relatively loose normative formulation and a large degree of overlap between [.. .J crimes".' These crimes have been subject to many definitions, in the Nuremberg and Tokyo Judgements, the Judgements in subsequent trials, the Geneva Conventions of 1949 and Additional Protocols, the Genocide Convention of 1948 and the Draft Codes of the International Law Commission. As a result there has been a failure to distinguish adequately between the crimes (and much scope for overlap) : a situation which has not been remedied in the Statutes of the ad hoc United Nations International Criminal Tribunals (lCTY and ICTR) .

I

2

3

Draft Convention on the Crime of Genocide 4 UN ESCOR, UN Doc E/447 of 26 June 1947 at pp. 16-17. Aggress ion is also considered one of the "core crimes" and will be subject to the jurisdiction of the International Criminal Court pursuant to Art. 5 but to date no definition has been agreed upon: aggression therefore falls outside this analysi s. Prosecutor v. Dusko Tadic, Case No. IT-94-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, Separate Opinion of Judge Georges Abi-Saab at p. I.

L.C. Vohrah et al. (eds.), Man's Inhuman ity to Man, 51 1-532 ©2003 Kluwer Law International. Printed in the Netherland s.

512

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The Secretary-General's call has thus not been answered and the Tribunals have been left with the resulting confusion. A particular source of confusion arises from the practice in international indictments of charging more than one type of crime for a single, criminal incident: a practice known as "cumulative charging". An example would be a murder charged as a war crime and a crime against humanity. It is submitted that this practice, while lawful and available to a prosecutor, results in rendering trials longer and more complex than is necessary and is thus impeding the development of international criminal law in a logical and orderly manner. Therefore it would be desirable to establish a structured hierarchy of international crimes in which some would be regarded as more serious than other s. The question is whether there exists authority for such a hierarchy. There is no conclusive opinion on this matter. For instance, among Judge s of the ICTY there has been a division of opinion as to whether there exists a difference in seriousness between war crime s and crimes against humanity.' Judge Antonio Cassese has played a leading role in this debate ,' and this essay, appropriately in his honour, is written in support of his view that there is authority for a hierarchy of international crime s. Such a hierarchy would rank the crimes in order of seriousness, with genocide at the summit, followed by crimes against humanity and then war crimes . The reason s for this order are now given.

4

S

Judge Shahabuddeen, Judg e Li and Judge Robin son have said that there are no ground s for finding a difference in seriousness; wherea s Judge Cassese and Judge Vohrah have said that there are. Prosecutor v. Draien Erdemovic, Case No. 96-22, Judgem ent, 5 Mar. 1998, Separate Opinion of Judge Shahabuddeen; Prosecutor v. Dusko Tadic, Case No. IT-94-1, Judgement in Sentencing Appeal s, 26 Jan . 2000, Separate Opinion of Judge Shahabuddeen; Prosecutor v. Drai en Erdemovic , Case No. IT-96-22-A , Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li; Prosecutor v. Dusko Tadic, Case No. IT-94-1, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robin son; Prosecutor v. Dusko Tadic, Ca se No . IT-94-1-A, Judgement in Sentencing Appeals, 26 Jan . 2000, Separate Opinion of Judge Cassese; Prosecutor v. Ant o Furundiija, Case No. IT-95-17/l-A, Judgement, 21 July 2000, Declaration of Judge La! Chand Vohrah . Judge Ca ssese was a member of the bench in the following relevant decisions: Prosecutor v. Drai en Erdemovic , Case No. IT-96-22-A (presiding); Prosecutor v. Kupreskic et al., Case No.IT-95-16, Judgement, 14 Jan. 2000 (presiding) (hereinafter "Kupreskic") ; Prosecutor v. Dusko Tadic , Case No. IT-94-I -A, Judgement in Sentencing Appeals, 26 Jan . 2000.

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II. GENOCIDE

Genocide is the most serious of international crimes: this proposition is undisputed. The term "genocide" was first coined during the Second World War; " and first formalised as a crime in the Genocide Convention of 1951.7 This Convention immediately gained such wide adherence that the International Court of Justice observed that its principles are recognised by civilised nations as binding on States even without any conventional obligations: the Court also said that contracting States do not have an interest of their own in this Convention , but a common interest in the accomplishment of its high principles. ' (This early recognition of the obligation erga omnes to prevent and punish genocide was repeated by the Court in the Barcelona Traction Case (1970» .9 The gravity of the crime is further emphasised by its status as a ju s cogens norm. 10 Genocide was termed "the crime of crimes" by the International Criminal Tribunal for Rwanda (ICTR). A parallel may be drawn with domestic law. Murder, depriving a person of his or her life, is the supreme offence under domestic law; likewise, genocide , depriving a group of persons of their existence, is the supreme offence under international law.I I

6

7

8

9

10 II

R. Lemkin, Axis Rule In Occupied Europe (Washington D.C., Carnegie Endowment for International Peace, 1944). The word genocide combine s the Greek word genus (race, tribe) with the Latin suffix cide (killing). Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 A(I1I) of9 Dec. 1948.

Reservations to the Convention on the Prevention and Punishment of the Crime a/ Genocide, Advisory Opinion, ICJ Reports 1951 at p. 23. Barcelona Traction, Light and Power Co. case (Belgium v. Spain), ICJ Reports 1970. The Judgement states (obiter) at para . 34: "I. .. 1 Erga omnes obligations derive, for example, in contemporary internati onal law, from the outlawing of acts of aggre ssion, and of genocide, as also from the principles and rules concerning basic right s of the human person including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23); others are conferred by internat ional instruments of a universal or quasi-uni versal character." Vienna Convention on the Law of Treaties 1969, Art. 53. The International Military Tribunal said that "[tlo initiate a war of aggre ssion is not only an international crime; it is the supreme international crime differing only from other war crimes

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It should also be noted that genocide is a species of crime against humanity . Thus , one of the post-Second World War tribunals called it "the prime illustration of a crime against humanity'"? while the Supreme Court of Israel referred to it as "the gravest type of crime against humanity" . 13 For all these reasons, genocide is rightly regarded as the most serious international crime: and this fact demonstrates that a concept of hierarchy exists .

III. CRIMES AGAINST HUMANITY AND WAR CRIMES 14 If genocide is at the summit of the hierarchy, what is next? This raises the question of the seriousness of crimes against humanity vis-a-vis war crimes. To some extent, this depends on the view taken of crimes against humanity. Are they simply to be regarded as supplementary to humanitarian law, filling a gap in order to protect a State's own citizens? Or are they to be regarded as having developed autonomously into a vehicle for the protection of fundamental rights . The first view would tend to militate against any hierarchy of crimes because there would be no difference in seriousness between such crimes and war crimes . However, it is submitted that the second view is correct: this is because, firstly, the authorities support a broader concept of crimes against humanity; and, secondly, this view takes account of the development of the concept since the Second World War. It is further submitted that crimes against humanity can be regarded as more serious because of: (a) their scale and systematic nature, and

(b) the distinct mens rea required.

in that it contains within itself the accumulated evil of the whole": Trial of the Major War Criminals before the IMT, Nuremberg, 14 Nov. 1945 - I Oct. 1946, (hereafter IMT) Judgement at p. 186. However, the relationship between aggression and genocide will not form part of this analysis. 12

US v. Josef Alstotter et al., (the Justice case), Trials of War Criminals before Nuremberg Military Tribunals under Control Council Law No. 10 (Nuremberg, Oct. 1946 - Apr. 1949) (hereafter NMT), case No.3, Vol. HI at p. 983.

13

Attorn ey-General ofIsrael v. Eichmann, (Supreme Court of Israel) 36 ILR 5 (1968) at p. 41.

14

For these purpose s grave breaches of the Geneva Conventions are treated as war crimes.

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These matters are discussed below; but, first, there follows a brief description of cases on this topic before the ICTY and a discussion of the reference to "humanity" in crimes against humanity.

A. Cases before the ICTY In Erdemovic'? the accused was alleged to have participated in a mass execut ion and was indicted on two counts arising from this event: the first charging a crime against humanity and the second a war crime. The accused pleaded guilty to the count involving the crime against humanity and was sentenced to 10 years' imprisonment. However, on appeal it was said that "all things being equal a punishable offence, if charged as a crime against humanity , is more serious and should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime". 16 The Appeals Chamber held that the difference had not been adequately explained to the accused, his plea was uninformed,' ? and remitted the case to the Trial Chamber for him to enter a plea again "in full knowledge of the nature of the charges and the consequences of his plea"." The accused proceeded to plead guilty to war crimes and was eventually sentenced to five years' imprison ment.!? In Tadic the accused was charged with war crimes and crimes against humanity

arising from the same acts. He was convicted on both charges . The Trial Chamber held that the fact that the accused had been charged cumulatively was relevant only to sentencing; and that the accused would receive concurrent sentences and suffer no prejudice thereby." However, in passing sentence , the Trial Chamber said that: A prohibited act committed as a crime against humanity, that is with an awareness that the act formed part of a widespread or systematic attack on a civilian

15

Prosecutor v. Draien Erdemovic , Case No. IT-96-22-A, Judgement, 7 Oct. 1997.

16

Ibid., Joint Separate Opinion of Judge McDonald and Judge Vohrah at para . 20.

17

Ibid., Disposition at para . 3.

18

Ibid., Disposition at para . 5.

19

Prosecutor v. Draien Erdemovic, Case No . IT-96-22 -A , Sentencing Judgement,S Mar. 1998.

20

Prosecutor v. Dusko Tadic, Case No. IT-94- I, Decision on Defence Motion on Form of the Indictment, 14 Nov. 1995 at para . 17.

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population, is, all else being equal, a more serious offence than an ordinary war crime. It sentenced the accused to an additional year's imprisonment for each crime against

humanity." On appeal by the accused against the ultimate sentence, the Appeals Chamber said that: There is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same . . .zz This led one Trial Chamber to say that the case law of the Tribunal was not fixed and the Tribunal had not yet established a hierarchy of crimes (for sentencing purposes)."

B. "Humanity" in crimes against humanity

Two matters fall to be discussed in this connection: (i) Are crimes against humanity more serious because they are crimes against all humanity? As long ago as 1946, Professor Schwelb pointed out The word "humanity" (l' humanitey has at least two different meanings, the one connotating the human race or mank ind as a whole, and the other humaneness, i.e. a certain quality of behaviour. It is submitted that in the

21

Prosecutor v. Dusko Tadic, Case No. IT-94-1, Sentencing Judgement, 14 July 1997 at para. 73. After the Prosecutor's successful appeal against the accused's acquittal on certain counts the accused was sentenced by the Trial Chamber for those offences (with a similar result). Prosecutor v. Dusko Tadic, Case No. IT-94-I -A, Judgement, 15 July 1999; Prosecutor v. Dusko Tadic, Case No. IT-94-1, Sentencing Judgement, II Nov. 1999.

22

Prosecutor v. Tadic, Case No. IT-94-I-A, Judgement in Sentencing Appeals, 26 Jan. 2000 at para. 69; followed in Prosecutor v. Anto Furundiija , Case No. IT-95-17/I -A, Judgement in Sentencing Appeal s, 2 1 July 2000, at para. 243.

23

Prosecutor v. Tihomir Blaskic , Case No. IT-95-14, Jud gement, 3 Mar. 2000 (herei nafter "Blaskic") , at paras 80 1, 802.

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Charter, and in the other basic documents, the word "humanity" is used in the latter sense . It is, therefore, not necessary for a certain act, in order to come within the notion of crime against humanity, to affect mankind as a whole .. .24 On the other hand, the Trial Chamber in Erdemovic did not subscribe to this reasoning but said that "the concept of humanity as a victim .. . essentially characterises crimes against humanity't.> This view was echoed in the Appeals Chamber where it was said that "rules proscribing crimes against humanity address the perpetrator's conduct not only towards the immediate victim, but also towards the whole of humankind't." However, it is submitted that it is more helpful to think of crimes against humanity as injuring certain common interests, as the International Court of Justice said of genocide." But this of itself does not make such crimes more serious. As Judge Shahabuddeen has observed, "crimes against humanity are intended to protect a societal interest other than those visualised by the law relating to war crimes".28 Why must they be regarded as more serious? (ii) Are crimes against humanity intrinsically more inhumane than war crimes or crimes in domestic jurisdictions? Thus, the Canadian Supreme Court spoke of the "added dimension of cruelty and barbarism" involved in crimes against humanity and added that "the degree of moral turpitude that attaches to crimes against humanity must exceed that of . .. domestic offences".29 However, a moment's reflection shows that war crimes involving murder, torture and rape can involve equally heinous conduct. The same may be true of offences tried in domestic jurisdictions. Therefore, it cannot be the case that a crime against humanity is more serious than a war crime because of added cruelty or inhumanity. It is submitted, rather, that the

24

25

26

Schwelb, E., 'Crimes against Humanity', 1946 BYIL 178 at p. 195. Prosecutor v. Draien Erdemovic , Case No. IT-96-22, Sentencing Judgement, 24 Dec. 1996, at para. 28. Prosecutor v. Draien Erdemovi c , Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah at para . 21.

27

Reservations to the Convention on the Prevention and Punishment ofthe Crime ofGenocide. Advisory Opinion, 10 Reports 1951, see above.

28

Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgement in Sentencing Appeals, 26 Jan. 2000, Separate Opinion of Judge Shahabuddeen at p. 42.

29

R. v. Imre Finta [1994] I S.C.R. 701 per Cory J. at p. 818.

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greater moral turpitude in this crime arises from the fact that the offence is committed as a conscious contribution to a system or pattern of crimes . Thus, the distinguishing features of crimes against humanity are (a) their scale or systematic nature and (b) the malign intent demonstrated by an offender in knowingly contributing to such crimes .

C. Scale or systematic nature A crime against humanity may be distinguished by its scale or systematic nature, as the foIlowing discussion shows. The idea of crimes against humanity was originally adopted to allow the AlIies to try the crimes committed by Germans against their own nationals ." This was necessary because , under classic international law, an individual often enjoyed a larger measure of protection as an alien than a citizen of his own State." The intervention by the international community in a State's actions against its own citizens was virtually unprecedented at the time of the Nuremberg trial ? and was a direct result of the Holocaust which "surpassed in magnitude and savagery any limits of what was tolerable"." A paraIlel may be found in the concept of humanitarian intervention which substantially pre-dates the Nuremberg trial."

30

31

32

33

34

Prosecutor v. Dusko Tadic, Case No. IT-94-I -A, Judgement in Sentencing Appeals, 26 Jan. 2000, Separate Opinion of Judge Shahabuddeen at p. 38. An alien could benefit from diplomatic protection and its applicable "international minimum standard": Lauterpacht, H., Internati onal Law and Human Rights (1950) 121. Neer Claim (US. v. Mexico) 1926. The following are often cited as precursors to the crime against humanity: (a) The "Martens Clause" in the Preamble to the Hague Convention of 1907, which referred to inhabitants and belligerents remaining under the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience; and (b) a clause in the Treaty of Sevres (1923) calling for the surrender of person s accused of crimes against the laws of humanity arising from the Massacre of Armenians in 1915. B.Y.A. Roling, 'The Law of War and National Jurisdictions Since 1945', 1960 Recueil des Cours (Academie de Droit Internati onal) at p. 346. This parallel was also drawn in the Justice case, where the Tribunal made references to the intervention and threat to intervene of Americ an and European States in other States in an effort to safeguard the interests of humanity: the Justice case , NMT Vol. III at p. 981-982.

Is There a Hierarchy of Crimes in Intern ational Law?

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Thus, St. Thomas Aquinas referred to the right to intervene "in the internal affairs of another when the latter mistreats his own subjects beyond the limits of what seems acceptable't." De Vattel referred to persecution, carried on to an intolerable degree, "when it becomes a case of evident tyranny, ... all Nations may lawfully give help to an unfortunat e people" ;" and Grotius referred to the fact that kings have the right to demand punishment on account of injuries which "violate the law of nature or of nations, in regard to any persons whatsoever" .37 Humanitarian interventi on, therefore, was reserved for situations where States had very gravely violated the human rights of their citizens." The Holocaust presented such an instance, thus allowing the Internati onal Military Tribunal to assume juri sdiction and impose sanctions based on individual criminal responsibility, although there was little precedent for doing so and there were firmly established concepts of domestic juri sdiction against doing so. In particular, the distinguishing features of the crime s perpetr ated pursuant to the Holocaust were their system and scale and their "malevolent nature"." The Chief United States Prosecutor described the situation as involving the "cruellest forms of torture", "large-sca le oppressions", "whole-scale confiscation of property" and "persecutions of the greatest enormity"; and one which was felt to amount to "the deepest offenses" against international law, including "the laws of humanity and the dictates of public conscience" (The Martens Clause)." In 1943 the Legal Committee of the United Nations War Crimes Commission commented that:

35

36

Cited in Krylos, Nikolai, ' Humanitarian Intervention : Pros and Cons' , 17 Loy. L. A. International and Comparative Low Journal at p. 365 . Emmeric h de Vattel, The Low OfNations (Le Droit des Gens) Ch. 4 s. 56 (Charles G. Fenwick trans. 1916).

31

Hugo Grotius, 2 De Jure Belli Ac Pacis, Ch. 20, Sees. 1625 (Eng. Tr. 1738),436-37,440; Carnegie tr, by F.w. Kelsey, 1925,504-505, 508 cited in Meron, T., 'Common Rights of Mankind in Gentili, Grotius and Suarez' , 85 AJIL 1991 at p. 110. Grotius refers to "excessive violations" - i.e. the "grav ely persecuted" according to Professor Meron.

38

A distinction must be made in that humanitarian interventi on allowed for military intervention in the affairs of the other State, whereas the Nuremberg Trial took the form of "judicial intervention ." The concept of humanitarian intervention also must be treated with caution in that there exists very little State practice and, therefore, its very existe nce is a matter of controversy: Krylos at p. 368.

39

The Justice case, NMT Vol. III at p. 982.

40

Report of Robert H. Jackson, US Representative to the International Conference on Military Trials, 12 (1945) at p. 49.

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As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude or savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed , or whose subjects had become their victims." Thus, the scale or systematic nature of the crime was a distinguishing feature of the concept of crimes against humanity at their inception . No such element was required in relation to war crimes which had a different historical basis in internationallaw. However, the International Military Tribunal did not distingui sh clearly between the two types of crime and did not treat crimes against humanity as the more serious for sentencing purposes." This is reflected in the Tribunal's sentencing practice where a difference in penalty would have been a clear indication that one type of crime was regarded as more serious than another. Instead, most accused were found guilty of both crimes and a joint sentence pronounced . The Tribunals convened under Control Counci1Law No.1 0 followed a similar practice and imposed joint sentences ." Nevertheless, this does not mean that these two crimes were treated as two sides of the same coin. Thus, some accused were convicted by the International Military Tribunal only of war crimes, i.e., Doenitz and Raeder (both involved in naval warfare);" while others were convicted only of crimes against humanity, e.g., Streicher (the publisher of Der Sturmer) who "infected the German mind with the virus of anti-Semitism and incited the German people to active persecution"."

41

42

43

44

45

History ofthe UN War Crimes Commiss ion and the Development of the Laws ofWar, at p. 179.

Lippman , M., 'Crimes against Humanity ', 17 Bost on College Third World Law Journal 1997 atp.I72. For an extensive study on this matter see Bing Bing Jia, 'The Differing Concepts of War Crimes and Crime s Against Humanity in International Criminal Law' , in Guy Goodwin-Gill and Stefan Talmon (eds.), The Reality ofInternational Law: Essays in Honour ofIan Brownlie (Clarendon Press, Oxford , 1999) at p. 243. IMT Judgement at pp. 315,3 17. Ibid., pp. 302-304; von Shirach was also convicted of crimes against humanity : ibid. , pp. 319-320 .

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Examples of the systematic nature of crimes against humanity, which has been referred to as "system criminality",46 are also to be found in cases tried under Control Council Law No. 10 in which this crime (together with war crimes) was charged. In the Medical case, doctors and scientists were charged with conducting a variety of involuntary experiments and a euthanasia programme which resulted in torture , maiming, injury and death. The Court observed that these were "not the isolated and casual acts of individual doctors and scientists [... ] but were the product of co-ordinated policy-making and planning at high [. .. ] levels, conducted as an integral part of the total war effort".'? In the Justice case , the accused were former judges, prosecutors or officials of the Reich Ministry of Justice. They were convicted of offences arising from a common enterprise which "embraced the use of the judicial process as a powerful weapon for the persecution and extermination of all opponents of the Nazi regime regardless of nationality and for the persecution and extermination of races"." In convicting the individual accused, Rothaug, the Tribunal noted that "[h]is acts were [... ] terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression."49 In the Einsatzgruppen case , members of the SS units which had followed the German armies into Poland and Russia were charged with offences arising from the liquidation of two million Jews, together with Gypsies, Communists and the disabled." In the Ministries case, the Tribunal described the Holocaust itself as essentially systematic when it referred to the persecution of the Jews as going on "steadily

46

47

Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgement in Sentencing Appeals, 26 Jan. 2000 , Separate Opinion of Judge Cassese at para . 14, citing B.V.A. Roling . US v. Karl Brandt et al., (the Medical case) NMT Vol. I at p. 181. The concept of crimes against humanity was not used in this case to extend the application of the concept of war crimes to German nationals, since the case dealt only with non-nationals. The Court concluded that "[t]o the extent that these criminal acts did not constitute war crimes they constituted crimes against humanity " (p. 227). This indicates a focus of the Tribunal on the civilian character of the population rather than on their nationality.

48

Indictment, the Justice case , NMT Vol. 111 at p. 18.

49

The Justice case , NMT Vol. II1 at pp. 1155-56.

50

US v. Otto Ohlendorfet al., (the Einsatzgruppen case) NMT Vol. IV; Lippman, at p. 216.

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from step to step and finally to death in foul form"." Thus, it is now well established that proof of the crime's widespread or systematic nature is both a necessary element and a distinguishing feature of crimes against humanity. However, two further matters should be noted . First, it is sometimes argued that war crimes are also systematic . The Draft Code drawn up by the International Law Commission required that war crimes be committed in a "systematic manner or on a large scale"." Similarly, Article 8 of the Statute of the International Criminal Court confers jurisdiction over war crimes "in particular, when committed as part of a plan or policy or as part of a large-scale commission of such crimes"; however, this requirement does not constitute an element of the offence but rather, reflects the fact that all crimes tried by international courts have to meet a minimum jurisdictional threshold of seriousness to qualify as international crimes. Moreover, it is submitted that this has no impact on customary international law, which does not require proof of a widespread or systematic attack for war crimes .53 Secondly, it is sometimes suggested that it must be shown that crimes against humanity were committed in pursuance of a particular policy. For instance, the Statute of the ICC seems to require proof that crimes against humanity have been committed "in furtherance of a State or organisational policy"." However, this requirement is not reflected in the case law where it seems sufficient to demonstrate only a "widespread or systematic attack" from which a policy can then be inferred as a matter of evidence .55 It can be said that the pattern or system behind

51 52

53

54 55

US v. Ernst von Weizsaecker et al., (the Ministrie s Case), NMT, Vol. XIV at p. 471. Draft Code of Crimes Against Peace and Security of Mankind 1996, Art. 20: Report of the ILC on the work of its 48th session, GOAR, 51st session, Supplement No. 10 (A/51/1O). Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgement in Sentencing Appeals, 26 Jan. 2000, Separate Opinion of Judge Cassese at para. 13; Art. 10 of ICC Statute . Art. 7.2 (a) of the ICC Statute .

Prosecutor v. Dusko Tadic, Case No. IT-94-1, Opinion and Judgement, 7 May 1997, para. 653: "[Crimes against humanity j are not isolated , random acts of individual s but rather result from a deliberate attempt to target a civilian population. Traditionally this requirement was understood to mean that there must be some form of policy to commit these acts [. .. j Importantly, however, such a policy need not be formalised and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systemat ic basis that demonstrates a policy to commit those acts, whether formali sed or not."

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crimes against humanity resembles a common purpose or enterprise, although no proof of a common purpose is required." What, then, is the effect of this requirement? As a Judge of the ICTY said, the gravity of a criminal act and seriousness of its punishment are determined by the intrinsic nature of the act itself and not by its classification under one category or anotber." Therefore, does the additional requirement that crimes against humanity be systematic necessarily make them more serious? It is submitted that it does, subject to this caveat. It is not possible to state that all crimes against humanity are inherently more serious than all war crimes. Each category of crime contains a cluster of offences which differ, both in nature and gravity.v but all must be of a level of seriousness in order to qualify as international crimes . Hence , the proposition already quoted from Erdemovic." that "all other things being equal" an offence charged as a crime against humanity is more serious than if it were charged as a war crime . Thus, it is not useful to compare a murder or murders, charged as a crime against humanity, with a war crime consisting of the bombardment of an undefended town. In such a comparison all other things are clearly not equal. The true comparison is between an accused involved in a single bombardment for military objectives and one involved in a bombardment which forms part of a series targeted at a civilian population: the latter is obviously more serious." In any case, their deliberate and systematic nature make crimes against humanity worse than crimes which "break the rules" of war to gain

56

57

58

59

60

Thus, the Dusseldorf Oberlandesgericht stated in a Judgement of 20 May 1948 (Criminal Chamber 3/48) that National Socialism had built up a power mechanism in the party and the State which could be set in motion against anyone from anywhere.

Prosecutor v. Draien Erdemovic, Case No . IT-96-22-A , Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li at para . 19. Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgement in Sentencing Appeals, 26 Jan. 2000, Separate Opinion of Judge Cassese at para . 3. Prosecutor v. Draien Erdemovic, Case No . IT-96-22-A, Judgement in Sentencing Appeals, 7 Oct. 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah at para . 20. As stated by Judge Vohrah in his Declaration in Prosecutor v. Anto Furundiija, Case No . IT95-17/I-A, Judgement, 21 July 2000, at para. 6: "When all things are equal- for the same act, a person is convicted of torture as a war crime or is convicted of torture as a crime against humanity - although the injury to the individual tortured may be the same , the injury to society would necessarily be greater if a crime against society has occurred. This extended injury should ordinarily be reflected in the sentence."

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a strategic military advantage.s' The Canadian Suprem e Court in Finta stated that "[c]rimes against humanity cannot be aimed at those who killed in the heat of battle or in the defen ce of their country. It is aimed at those who inflicted immen se suffering with foresight and calculated malevolence't.f

D.Mens rea It is consistent with the general principles of criminal law that a crime requiring a spec ific intent is to be regarded as more serious for the purpo ses of sentencing than a crime requiring a general intent. War crimes require a general, rather than a specific, intent; whereas crimes against humanity require a specific intent. Thus, the mens rea of a war crime is establi shed simply by showing an intent to commit the " underlying offence" charged as a war crime, e.g . murder, torture, rape etc. It is not necessary to prove that the crime was part of a larger series of crimes or was committed for some other purpose. (In Barbi e 63 the Cour de Cassation suggested that, in contr ast to crimes against humanit y, war crim es are "directly connected to the existence of a situation of hostilities declared between the respecti ve States". However, this is not to be taken as indicating that proof of a military purpose is required.) On the other hand , in order to prove a cri me against humanit y, the prosecution must establi sh that the accused was acting in a particular context and was aware that the individual crime was committed as part of a series aimed at reinforcing a system of criminality. This does not mean that an individual perpetrator has to be aware of all the crimes resulting from the system of criminality." or even to be a supporter of the ideology, policy or plan behind it.65 In fact the acc used may act for purely personal purposes." Examples of this are the cases of denun ciation of Jews to the Gestapo by relations or neighbours: in one such case a man and his sister

61

It is not hereby implied that war crimes can only be committed in the heat of battle or for military purposes : see discussion below.

62

R v. Finta [1994]1 S.C.R. at p. 8 17.

63

Barbie, French Court of Cassation (Criminal Chamber), 20 Dec 1985,78 ILR 125 at p. 127.

64

Blaskic, 3 Mar. 2000 at para. 251.

65

Papon , CassoCrim., 23 Jan. 1997.

66

Prosecutor v. Dusko Tadic, Case No. IT-94-I -A, Judgement, 15 July 1999 at para. 272.

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simply wanted to rid themselves of his Jewish wife and denounced her to the Gestapo for making anti-N azi remark s: as a result the wife died in Auschwitz. The man and his sister were convicted of crimes against humanity by the Supreme Court for the British Zone in Cologne.s' The Court held that "o nly the perpetrators' consciousness and intent to deliver his victim through denunci ation to the forces of arbitrariness and terror are required" ." The scope of the mens rea is illustrated by the fact that it may include an intent to single out a part of the civilian population and depriv e it of its fundamental rights, with the aim of its removal from a society or eventually even from human ity itself.69 In a case concerned with the burning of synagogu es during Kristallnacht the Supreme Court for the British Zone stated that a crime against humanity involves an act which "strikes the victim s in their human rights and demeans them and those right s as defined in European culture include freedo m of religion, worship and of equal treatm ent - in a manner affecting their humanitas" ; and "a conscious and deliber ate attack by the perpetrator against the victim or victims and his cognisance of those facts and circumstances which constitute the physical elements" of the crimes." (Most commonly, a particular segment of the civilian popul ation is targeted on discriminatory grounds; however, there is no need to demonstrate discrim inatory intent in cases of crimes of humanity other than persecution)."

67

68

69

70 71

K & P, Decision of Supreme Court for British Zone (Obe rster Gerichtshoffur die Britische Zone in KOln), 9 Nov. 1948, S. Sts 78/48, in Justi: und NS-Verbrechen, vol. II, pp. 498-499. Ibid. p. 499. The Court held that denunciation "is [.. .] intimately linked to the National Socialists' regime of violence and arbitrariness because, from the very outset, it clearly fitted into the organised campaign of persecution against all Jews and everything Jewish in Germany which all humanity not under sway of National Socialism perceived as an assault and, although directed against one victim only, became part and parcel of all the mass crimes committed during the persecution of the Jews." Kupreskic, 14 Jan. 2000 at para. 634. In K & P, ibid. p. 498, the Court stated that the offence in question "demon strated a total disregard for basic human value, dignity and rights; [.. .] the ensuing prejudice to humanity itself as the bearer of ideal human values has been ascertained". See also the case of v., Decision of the Supreme Court for the British Zone in Hamburg, 22 June 1948, StS 4/58, which states that a crime against humanity requires that "a person suffer harm directly to himself or to his property or assets in a way that manifests a total disregard for his ideal value as a human being, with consequences for all of mankind". T & K, Judgement of Supreme Court for the British Zone, 2 1 Dec. 1948, 40/48 .

Prosecutor v. Dusko Tadic, Case No. IT-94- I-A, Jud gement, IS July 1999 at para. 305; Kupreskic , 14 Jan. 2000 at para. 558.

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Thus, the presence of a distinct mens rea in crime s again st humanity makes those crimes more serious than war crimes."

E. The modern scope of the crimes The prohibition of crime s against humanity has now grown independently and applie s in times of war and peace , as opposed to the prohibition again st war crimes which applie s only during armed conflict." The abolition of the requirement of a nexus to an armed conflict in case s of crimes against humanity reflects the recognition that crimes against humanity are so serious that they should also be outlawed in times of peace . The requirement of such a nexus was eliminated from the definition in Control Council Law No. 10,74 and , as a result , some of the Tribunals conducting cases under the Law held that crimes again st human ity could be committed in times of peace." This position was maintained in the Genocide Convention and the Apartheid Convention as well as the ILC Draft Codes. Thus, the Appeal s Chamber in Tadic stated that "it is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict (. . . or any conflict at all)"." Secondly, crimes against humanity have developed continuously since their original conception, starting with Article II of Control Council Law No. I0 where "other inhumane acts" were elaborated to include imprisonment, torture and rape. (Some of the Tribun als sitting under Law No. 10 had broad notion s of what constitutes a

72

73

74

75

76

It is relevant to note in this regard that Art. 33 of the ICC Statute, dealing with superior orders, provides that "orders to commit genocide or crimes against humanity are manifestly unlawful".

Barbie (1985) 78 ILR at p. 125: "[I]n contrast to crimes against humanity, war crimes are directly connected with the existence of a situation of hostilities declared between the respective States to which the perpetrators and the victims of the acts in question belong."

Art. II (l)(c). This is in contrast to the IMT which had restricted its juri sdiction over crimes against humanity to the war years (1939-1945). The Einsatzgruppen case, NMT Vol. IV at p. 499; the Justice case, NMT Vol. III, at p. 974. The military tribunal s sitting in the Flick and Ministries cases reached the opposite conclusion; US v. Flick et al., NMT Vol. VI. at 1212-13; the Ministries Case, NMT Vol. XIV, at p. 3 16. Prosecutor v. Dusko Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Juri sdiction, 2 Oct. 1995 at para. 141.

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527

crime against humanity: for instance, the Tribunal in one case saw the concept of crimes against humanity as a mechanism to provide individuals with protection where the domestic criminal system had failed to do SO).?7 Other additions followed in the Conventions on Genocide and Apartheid;" and, after a movement to include enforced disappearances in the definition," this was included by the International Law Commission in its 1996 Draft Code because of its extreme "cruelty and gravity" .80 In its commentary to the 1991 Draft Code the International Law Commission referred to the considerable development in the protection of human rights since the 1954 Draft Code and said , in relation to an article entitled "Systematic or Mass Violations of Human Rights" (but essentially dealing with crimes against humanity) that "all the acts constituting crimes under this draft article are a serious violation of certain fundamental human rights . .. [and] each of the subparagraphs concerning the criminal acts are a crime [only] if they constitute systematic or mass violations of human rights".81 More recently, the Trial Chamber in Kupreskic said that "it is possible to identify a basic set of rights appertaining to human beings, the infringement of which may amount, depending on accompanying circumstances, to a crime against bumanity't ." As examples it referred to the forcible transfer of civilians, enforced prostitution or enforced disappearances. At a later stage in the judgement the Trial Chamber applied the same reasoning to define persecution as "the gross or blatant denial, on discriminatory grounds, of a fundamental right , laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5" .83

77

78

79

80 81

The Einsatzgruppen case, NMTVol. IV at p. 498, 462-63. See also the Justice Case, NMT Vol. III at p. 981-982. Slye, R., 'Apartheid as a CrimeAgainst Humanity: A Submission to the SouthAfrican Truth and Reconciliation Commission' , 20 Michigan Journal of International Law [19991 at p. 267. Orentlicher, Diane, 'Settling Accounts: TheDutyto ProsecuteHuman Rights Violations of a Prior Regime', 100 The Yale Law Journal [1991] 2537 at p. 2582. lLCA 51/10(1996)at para. 135. Reportof the ILC(1991), Official Records of the General Assembly, 46thSession,UNDoc. A/46/1O, at pp. 265-6 (Art. 21).

82

Kupreskic, 14Jan. 2000 at para.566.

83

Ibid., at para. 621.

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It is submitted that the fundamental rights in question are all rights that relate directly to the physical or mental well-being (or humanity ) of the person." Under this analysis, propert y crimes would not be included unless they constitute an indirect assault on the physical or mental well-being of the victim population. " Beyond that, it is not useful to enumerate all the rights due to (1) the flexible and expanding nature of crime s against humanity ; (2) the ingenuity of man to find new ways to harm his fellow man; (3) the maxim expressio unius est exclusio alterius. Therefore, it is possible to prosecute violations of fundamental human rights as crimes against humanity, either as persecution (if they are motivated by discriminatory intent) or as other inhumane acts. Although these developments in international human rights law have had an impact on the definitions of war crimes ," the impact has been less." The fact that crimes against humanity have become synonymous with massive and systematic human rights violations further attests to their being more serious.

84

85

86 87

These fundamental rights are regarded as inalienable under international human rights law. This distinction was made in the case of Flick, where the US Military Tribunal held that "[n)ot even under a proper construction of the section of Control Council Law No. 10 relating to crimes against humanity, do the facts [compulsory taking of Jewish indusUial property) warrant conviction. The atrocities and offences listed therein, murder, extermination, etc., are all offences against the person. Property is not mentioned" (US v. Flick et al., NMT Vol. VI, p. 1215). On the other hand the comprehensive destruction of homes and property in Kupreskic was held by the Trial Chamber to amount to a crime against humanit y (persec ution) because it constituted a destruction of the livelihood of the village population, which could be said to have the same inhumane consequences as a forced transfer or deportation, and because the burning of homes could often be committed with a recklessness to the lives of their inhabitants; Kupreski c, 14 Jan. 2000 at para. 631. Thus, Professor Lauterpacht said that "Pillage, plunder , and arbitrary destruction of public and private property may, in their effect s, be no less cruel and deserving of punishment than acts of personal violence", Lauterpa cht, H., 'The Law of Nations and the Punishment of War Crimes' , 21 BYIL (1944) atp.79. Meron , T., 'The Humani zation of Humanitarian Law' , 94 AJIL 2000 at p. 239. This can be seen in Art. 8 of the ICC Statute on war crimes: the grave breaches and violations listed in common article 3 of the Geneva Conventions reflected in Art. 8 (a) and (c) of the ICC Statute are influenced by human rights, whereas the remainder of the prohibition s listed in Art. 8 (b) and (e) pertain more to the rules of war.

Is There a Hierarchy a/Crimes in International Law ?

529

IV. TOWARDS A HIERARCHY OF INTERNATIONAL CRIMES

A. Authorities recognising a hierarchy I. Kambanda. It is significant to note that. in contrast to the doubts expressed by the Chambers of the ICTY, a Trial Chamber of the ICTR has stated it had "no doubt that, despite the gravity of the violations of Article 3 common to the Geneva Conventions and of the Additional Protocol thereto, [war crimes] are considered as lesser crimes than genocide or crimes against humanity". The jurisprudence of the ICTR, therefore, recognises a hierarchy of genocide, crimes against humanity (crimes of an extreme seriousness); and war crimes (crimes of a lesser seriousness)."

2. Albrecht. This case came before the Netherlands Court of Appeal in 1949. The Special Criminal Court at Amhem had found the accused guilty of war crimes and crimes against humanity and sentenced him to death. The Netherlands Court of Appeal set aside the conviction for crimes against humanity and substituted a sentence of life imprisonment for the sentence of death in respect of war crimes . It did so on the grounds that it did "not consider the criminality of the appellant's behaviour great enough to demand that he suffer the death penalty". The Court considered that crimes against humanity were "characterised either by their seriousness and their barbarity, or by their scale, or by the circumstance that they were a part of a system of terrorist acts, or that they were a link in a deliberately pursued policy against certain groups of the population". 89

B. Arguments against cumulative charging What then are the arguments against charging and convicting an accused for both a war crime and a crime against humanity arising from the same act (e.g., a rape as

88

Prosecutor v. lean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para . 14.

89

Bijz: Raad van Cassatie (Tweede Kamer), I I Apr. 1949, Nederlandse Jurisprudentie, 1949; Case No. 425 at p. 750. There is a distinct similarity between this language and that used by the UNWCC in 1943, on which the Court seems to have relied.

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a war crime and a crime against humanity) and imposing sentences to be served concurrently's" Some are summarised below: I . The practice of charging both offences prevents the crimes from being clearly differentiated. 2. While cumulative charging is justified in cases where each of the two crimes requires proof of a legal element not required by the other (reciprocal speci ality), or possibly where a single act may breach different interests," what is gained by adding a second, less serious, charge relating to war crimes in a case, say, of rape? 3. In cases of direct overlap, the maxim lex specialis derogat generali should apply." It would follow that when a war crime constitutes a lesser included offence it would not be charged , but it would be open to a tribunal in such circumstances to convict the accused of a war crime if it found that the facts as proved amounted to a war crime but not a crime against humanity. 4. Furthermore, if one takes a purposive approach, it is obvious that the aim of international criminal law is the optimum protection of innocent persons . Systematic or widespread crimes are potentially more harmful to this aim than isolated ones . The recognition and imposition of a hierarchy of offences is desirable because it would allow for a system ofprioritisation to develop . The object and purpose of international law is therefore promoted by the stigmatisation of these crimes over other crimes. B. VA. Roling (who sat as a Judge on the International Military Tribunal for the Far East) said that to qualify an act as a crime against humanity gives "an added disqualification to the deed done" , and added that it would be prudent "to restrict the concept of crimes against humanity to the gravest, systematic, mass crimes"."

90

91

92

93

Thi s approach has been taken in most ICTY cases. Such an appro ach was also taken in Barbie : Wexler, L., 'The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again ' , 32 Columbia Journal of Transnational Law (1994) at pp. 339 -340.

Prosecutor v. Jean-Paul Akayesu, Case No . ICTR -96-4-T, Judgement, 2 Sept. 1998, at para . 468 .

Kupreskic, 14 Jan. 2000 at para . 684: The rationale behind the principle of speciality is that if an action is legally regulated both by a general provision and by a specific one, the latter prevail s as most appropriate, being more specifically directed towards that action . B.V.A. Roling, ' The Law of War and National Jurisdictions Since 1945', supra note 33, at p. 349.

Is There a Hierarchy of Crimes in International Law ?

531

According to Judge Cassese , the international community, through the medium of international criminal courts, therefore has "a strong societal interest in imposing a heavier penalty upon the author of such a crime against humanity, thereby also deterring similar crimes"."

C. The Hierarchy A possible hierarchy would be: 1. Genocide (prohibition of discriminatory, deliberate, destruction of a group, in whole or in part) ; 2. Persecution (prohibition of discriminatory, deliberate and systematic attacks on fundamental rights falling short of genocide);" 3. Crimes against humanity (prohibition of deliberate and systematic attacks on fundamental rights); 4. War crimes (including grave breaches) (prohibition of isolated attacks during time of war). This hierarchy would, of course, only apply where all things are equal since, as noted above, there may be cases in which offences lower down the hierarchy are in fact more serious than those higher up. It also leaves open issues of a hierarchy

94

95

Prosecutor v. Dusko Tadic, Case No. IT-94-I -A, Judgement in Sentencing Appeals, 26 Jan . 2000, Separate Opinion of Judge Cassese at para . 15. Since the above section was written, the Appeals Chamber of the ICTY has held that cumulative charging is to be allowed (because prior to the pre sentation of evidence it is not possible to determine which charges will be proved); however, the Chamber also held that multiple convictions under different statutory provisions, but based on the same conduct, are permissible only if each statutory provision involved has a materially distinct element: where the latter test is not met , the Trial Chamber must decide on which offenc e it will enter a conviction, working on the principle that the conviction under the more specific provision should be upheld: Prosecutor v. Delalic et al., Cas e No. IT-96-21-A, Judgement, 20 Feb. 200 I, paras 400 , 412-413. Thus, the Appeals Chamber has gone some way to meet the arguments put forward here . Kupreskic, 14 Jan . 2000 at para . 636 : [Pjersecution as a crime against humanity is an offence belonging to the same genu s as genocide . .. [F]rom the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide."

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between the offences enumerated within each crime (e.g., murder, torture, rape) and of a hierarchy between the various forms of participation. It is hoped that the establishment of a hierarchy of international crimes would have the following advantages: (a) The elimination of charges pertaining to lesser included offences (thereby shortening trials) . As noted above even if the Prosecution did not charge a lesser offence in the alternative , the Trial Chamber could still make a finding that the accused was guilty of such a lesser included offence . (b) Clarifying the decision whether to charge crimes against humanity or war crimes/grave breaches. It should be noted that although grave breaches tech-

nically are in a relationship of reciprocal speciality to crimes against humanity, charging both should be reserved for exceptional circumstances. This is because much time is taken up at trial by proving both (i) international armed conflict and (ii) a widespread or systematic attack. (c) Clarifying plea s ofguilty . A hierarchy of crimes would assist those advising an accused whether to plead guilty or not and those deciding whether a plea should be accepted. (d) Clarifying sentences. In cases of conviction for multiple charges, it may be appropriate for a Trial Chamber, rather than imposing a single sentence , to impose separate sentences reflecting the seriousness of each offence: a hierarchy would assist in this process. (e) Assisting in the orderly development of intemationallaw.

25

CASSESE'S TADIC AND THE LAW OF NON-INTERNATIONAL ARMED CONFLICTS Theodor Meron

It gives me a pleasure to contribute to this book of essays honouring President Antonio Cassese, or Nino, as he is known to his many friends . Nino defies categorization: he is an exceptionally prolific scholar, a supporter of a strong international legal order and of robust international law, a committed advocate of human rights and of humanitarian law, a great educator, a person with a very special relationship to students and to the young . A natural activist, Nino was a visionary judge and President of the International Criminal Tribunal for the former Yugoslavia. He sought not to only apply and clarify the law, but also to form it in a progressive mould. Indeed, belief in the progressive character of international law has been central to his legal persona. His contribution to international humanitarian law has been enormous. In this short essay, I will limit myself to the seminal decision (1995) of the Appeals Chamber, presided over by Cassese, in the Interlocutory Appeal on Jurisdiction in the Tadic case.' I choose this topic because the judicial technique selected in that case tells us a lot about Cassese's character and personality. In that decision, the Appeals Chamber rejected the prosecution's argument that because foreign armed forces had intervened in Bosnia-Herzegovina on a large scale, and because the Statute of the International Criminal Tribunal for the former Yugoslavia included provisions normally applicable to international armed con-

1

Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR 72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, reprinted in 36 ILM 32 (1996) ("Tadie ") .

L.c. Vohrah et at. (eds.), Man's Inhumanity to Man, 533-538 ©2003 Kluwer Law International. Printed in the Netherlands .

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flicts, the situation as a whole should be treated as an international armed conflict. Instead, the Appeal s Chamb er decided that the conflict had both international and internal aspects. The Appeal s Chamber thus left the Trial Chambers to decide whether individual cases involved an international or an internal conflict. A less visionary person than Cassese would probably have chosen the easy route of considering the entire situation an international armed conflict, enabling the Tribunal to apply the totality of international humanitarian law regulating such conflicts , including provision s governing grave breaches. But that route would have deprived the Tribunal of the opportunity to affirm that serious violation s of international law committed in internal wars are crimes under international customary law and to develop and consolidate human itarian law for the most frequent and the most cruel of conflicts: non-international armed conflicts. Instead , the Appeals Chamber chose to interpret Article 3 of the Statute in such a way that the words "laws or custom s of war" would reach non-international armed conflicts. Article 3 of the Statute would thus encompass both the Hague and the Geneva law (except for grave breaches), including common Article 3, which thus assumed a mantle of international criminal law. The Appeals Chamber stated: 89. Article 3 is a general clause covering all violations of humanitarian law not falling under Articl e 2 or covered by Article s 4 or 5, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as "grave breaches" by those Convention s; (iii) violation s of common Article 3 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e.. agreements which have not turned into customary international law (on this point see below, para. 143).

91. Article 3 thus confers on the International Tribunal juri sdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any "serious violation of international humanitarian law" must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the juri sdiction of the International Tribunal. Article 3 aims to make such juri sdiction watertight and inescapable. In the jurisprudence of the Tribunal, the Tadic decision took on a life of its own. Although Article 3, or the residual clause, was suppos ed to apply to situations not

Cassese's Tadic and the Law ofNon-International Armed Conflicts

535

covered by Articles 2, 4 or 5, in the practice of the Tribunal it has been applied as an autonomous provision invocable even when other Articles covered the same criminal acts. Moreover, Tadic was construed to authorize the importation not only of common Article 3, but of the entirety of customary law applicable in non-international armed conflict, and thus even of offences not explicitly mentioned in common Article 3, such as rape. One particular area where Tadic proved prescient was in the field of weapons. The received wisdom prior to Tadic was that most prohibitions on the use of weapons were relevant only to international armed conflict. Challenging that vision, Tadic noted: 119. Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civiI strife. 120. This fundamental concept has brought about the gradual formation of general rules concerning specific weapons, rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts . By way of illustration, we will mention chemical weapons . In Tadic, the ICTY Appeals Chamber encouraged the blurring of the distinction between international and non-international conflicts. According to the Chamber, one of the factors prompting this softening has been "the impetuous development and propagation in the international community of human rights doctrines", especially in the years after the Universal Declaration of Human Rights was adopted .? The traditional focus on state sovereignty has shifted toward a human rights approach to international problems, an approach whose origin the Chamber traced to the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) . In light of this evolution, the Chamber found that the distinction between international and non-international conflicts was "losing its value" in relation to human beings : Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property,

2

Tadic,

supra note 1, para. 97.

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as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted "only " within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States , must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.' Largely under the impact of Tadic, there has been a broadening of international humanitarian law applicable to non-international armed conflicts, often through elimination of distinctions between international and non-international armed conflicts. The ICRC study on rules of customary humanitarian law soon to be published makes only the basic distinction between international and non-international armed conflicts. It does not adopt the three-tiered approach of the Geneva Conventions and Additional Protocols. Moreover, it recognises that many rules are applicable to both international and non-international conflicts. Many military manuals do not explicitly distinguish between rules applicable in non-international conflicts and in international conflicts (although they often indicate the relevant provisions of the Geneva Conventions and Additional Protocols). Some armed forces now recognise that the same rules of international humanitarian law should be applicable in all situations involving armed conflict. Thus, an instruction issued by the chairman of the United States Joint Chiefs of Staff states that the "Armed Forces of the United States will comply with the law of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterised"." This approach tends to bring about the comprehensive and uniform application of international humanitarian law. The regulations promulgated by the Secretary-General of the United Nations on the observance by United Nations forces of international humanitarian Iaw" restate a broad set of protective norms distilled from humanitarian law treaties without

3

Ibid.

•

Chairman, Joint Chiefs of Staff, Instruction S8lO.0I , Implementation of the DOD Law of War Program (1996) , quoted in Corn , 'When Does the Law of War Apply: Analysis of Department of Defense Policy on Application of the Law of War' , Army Law., June 1998, at 17.

5

United Nations Secretary-General, Bulletin on the Observance by United Nations Forces of International Humanitarian Law, U.N. Doc.ST/SGB/19991l3, reprinted in 38 ILM 1656 (1999) .

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537

making any distinction between the international and non -international conflicts in which United Nations forces are involved," Limitations or prohibitions in the regulations regarding weapons and methods of war are increasingly being applied to internal armed conflicts governed by common Article 3, such as the rules in the revised Protocol II to the 1980 Convention on Certain Conventional Weapons dealing with mines, booby traps, and other devices .' Some instruments impose these limitations or prohibitions in all circumstances, including the Ottawa Convention on antipersonnel land mines," the Convention on bacteriological (biological) and toxin weapons (a 1972 arms control treaty)," and the Convention on chemical weapons (which concerns both arms control and use) .'? The recent Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event ofArmed Conflict applies to armed conflicts not of an international character.I I Even more recently, in December 2001, on the proposal of the United States, the scope of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects has been amended to apply also to all common Article 3 situations. Thus, in recent years, remarkable progress has been made in the identification of customary rule s and the willingness of states to recognise the extension of rules to non-international armed conflicts. This progress is attributable to the establishment of the two ad hoc tribunals and the direction of their jurisprudence and the

6

See ibid. at 1.1.

7

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 Apr. 1981, 19 ILM 1523 (1980) , Protocol [II] on Mines, Booby-Traps and Other Devices, 3 May 1996,35 ILM 1206 (1996) .

8

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on The ir Destruction, 18 Sept. 1997,36 ILM 1507 (1997).

9

Convention on the Prohibition of the Development, Produ ction and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruct ion, 10 Apr. 1972, 26 UST 583, 1015 UNTS 163.

10

Convention on the Prohibition of the Development, Production, Stockpiling and Use ofChemical Weapons and on Their Destruction, 13 Jan. 1993, S.Treaty Doc .No. 21, 103d Cong o(1993) , 32 ILM 800 (1993) .

11

Second Protocol to the Hagu e Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 Mar. 1999, Art. 22, 38 ILM 769 (1999) .

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drafting and adoption of the Statute of the International Criminal Court. The United Nations Secretary-General alluded to prospects for further advances and noted that "it might well be that the identification of customary rules obviates some of the problems which exist in the scope of the existing treaty law, and will assist in the identification of fundamental standards of humanity" . 12 Finally, the listing in the ICC statute of serious violations of common Article 3 and some provisions of the Hague law as war crimes applicable in non-international armed conflicts, and the codification, in that Statute, of the principle that crimes against humanity can be committed in all situations, and that not only in furtherance of state policy, but also in furtherance of the policy of non-state entities, are signal achievements. Cassese, the judge, is thus the rare person, about whom it can be said that he has been a prophet in his own time.

12

See Fundamental Standards of Humanity: Report of the Secretary-General submitted pursuant to Commission [on Human Rights) resolution 1998/29 , U.N. Doc . E/CNA/1999/92, paras 23-34 .

26

TRIAL WITHOUT UNDUE DELAY BEFORE THE INTERNATIONAL CRIMINAL TRIDUNALS Erik M¢se and Cecile Aptel

I. INTRODUCTION

Professor Cassese is not only widely known for his expertise in international law, but also for his efficiency and ability to solve problems in a practical way. These virtues made him an outstanding first President of the International Criminal Tribunal for the former Yugoslavia (lCTY). Efficiency is important in order to ensure trial without undue delay, which is an essential principle in human rights law, a field in which Professor Cassese has also made significant contributions. For these reasons , a collection of essays in honour of Professor Cassese may well include a contribution on trial without undue delay by the two ad hoc International Criminal Tribunals, the ICTY and the International Criminal Tribunal for Rwanda (ICTR). Time is of the essence not only for the accused, but also for the victims . The international community is anxious to see justice done and the mandates of the two ad hoc Tribunals completed. Furthermore, the task of assessing evidence in cases pending before the Chambers of the Tribunals becomes increasingly difficult with the passing of years since the alleged crimes . Criticism of the Tribunals for delays has to some extent been justified , but it has also been based on limited awareness of certain challenges with which the Tribunals are faced. The aim of this contribution is to describe some of these challenges, on the basis of criteria developed in human rights law with regard to trial "without undue delay" or "within reasonable time". After an overview of human rights law on trial without undue delay (Il) follows a brief description of the factual situation of the Tribunals (III). The complexity of the cases before the Tribunals is then considered (IV), as well as the conduct of the parties, i.e, the Prosecutor and the accused (V) , and the "conduct of the

LiC. Vohrah et at. (eds .), Man's Inhumanity to Man , 539-566 ©2003 Kluwcr Law International. Printed in the Netherlands.

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authorities" (VI). Measures adopted to improve the efficiency of the Tribunals (VII) are followed by final observations (VIII) . In view of the authors' experience, the main focus is on the ICTR.

II. TRIAL WITHOUT UNDUE DELAY IN HUMAN RIGHTS LAWOVERVIEW

A. Relevant provisions Article 20 (4)(c) and Article 21 (4)(c) of the Statutes of the ICTR and ICTY, respectively, reiterate that one of the minimum guarantees in criminal proceedings is the right of an accused "to be tried without undue delay" . The wording of both provisions is identical to Article 14 (3)(c) of the International Covenant of Civil and Political Rights (CCPR). The same principle, albeit differently formulated, follows from Article 6 (1) of the European Convention on Human Rights (ECHR), which requires trial "within reasonable time" for everyone charged with a criminal offence.' This right is also recognised in other human rights instruments and by international humanitarian law.' CCPRArticle 14 and ECHRArticle 6 apply to all criminal cases, irrespective of whether the accused is detained. Moreover, CCPR Article 9 (3) and ECHR Article 5 (3) provide that detainees are entitled to trial "within reasonable time" or to release. CCPRArticle 9 (3) and ECHRArticle 5 (3) also enshrine the right to be promptly brought before a Judge . This is a more stringent requirement than the right to be tried "without delay" or "within a reasonable time" . The European Court of Human Rights has found Article 5 (3) to be violated in cases where the period

1

ECHR Article 6 (I) also applies to "civil rights", whereas there is no such explicit requirement in the CCPR Article 14. However, undue delay in civil proceedings may violate the general requirementofa "fair" trial in Article 14 (I); see Nowak, V.N. Covenant on Civil and Political Rights. CCPR Commentary (Engel 1993), p. 247.

2

See, for instance, Article 7 (I)(d) of the African Charter of 27 June 1981 on Human and Peoples ' Rights and Freedoms . Article 71 of Geneva Convention IV includes the right for civilians in occupied territories to have a regular, speedy trial. Article 99 of Geneva Convention III, relating to the treatment of prisoners of war, guarantees the right of war prisoners to be tried as soon as circumstances permit. Reference is also made to Additional Protocol I and II of 1977 to the Geneva Conventions , Articles 75 and 6, respectively.

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exceeded four to five days .' The aim of these provisions is to ensure judicial control over deprivation of liberty in connection with criminal proceedings. The Statutes of the two Tribunals contain no explicit reference to this second guarantee . However, it is clear that persons charged by the ICTR and ICTY are also entitled to appear before a judicial body "without delay" when they are transferred to Arusha or The Hague , pursuant to Rule 62 (A). A clear illustration of the importance of this principle was given in the two Appeals Chamber decisions in the Barayagwiza case.' This case illustrates that the Tribunals rely on the assistance of the States to arrest and to place suspects and accused in custody. For these reasons, this contribution does not deal with the right of an accused to be brought promptly before a Judge.

B. Case law At the global level, the Human Rights Committee has interpreted the notion of "undue delay" in its General Comment 13 (1984) on CCPRArticle 14: Subparagraph (3)(C) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered ; all stages must take place "without undue delay" . To make this right effective,

3 4

Brogan v. UK, judgement of 29 Nov. 1988, Series A No. 145-B. See Pro se cutor v. Jean-Bos co Barayagwiza , Case No. ICTR-97-19-AR72; Appeals Chamber Decisions of 3 November 1999 and 31 March 2000 , respectively. On 3 November 1999, the Appeals Chamber allowed an appeal by the accused because of "abuse of process", notably because he remained in custody for 96 days after his transfer from Cameroon to Arusha before formally appearing before the Tribunal. It consequently dismissed the indictment with prejudice to the Prosecutor, and directed the immediate release of the accused. The Prosecutor applied for review under Article 25 of the ICTR Statute and Rules 120 and 121 of the Rules of Procedure and Evidence. On 31 March 2000, the Appeals Chamber, on the basis of new facts adduced by the Prosecutor, found notably that the lapse of time between the accused 's transfer and his initial appearance attributable to the ICTR was 20, not 96 days. The new information diminished the role played by the Prosecutor, as well as the intensity of the violation of the rights of the accused. The Appeals Chamber concluded that its previous decision to release him should be replaced by the following remedy : if the accused is found guilty, his sentence shall be reduced to take account of the violation of his rights . If found not guilty, he shall receive financial compensation .

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a procedure must be available in order to ensure that the trial will proceed "without undue delay", both in first instance and on appeal.' Further clarification follows from the Committee 's decisions and views in cases submitted by individuals under the Optional Protocol to the CCPR. The relevant period starts when the person is informed that he or she is being prosecuted and ends on the date of the definitive decision, such as the final judgement or the dismissal of the case. What constitutes undue delay depends on the specific circumstances of the case and its complexity. The Committee has rejected explanations by a State party to the effect that financial constraints had affected the administration of justice and justified the delay. In most cases where the Committee has found a violation of Article 14 (3)(c), there were unjustifiable delays of several years." Turning to the regional level, the European Court of Human Rights has interpreted ECHR Article 6 (1) as comprising not only a right to a trial but also to a judgement within a reasonable time. Of relevance are not only the proceedings at first instance, but the totality of the proceeding s, including investigation by the police once the person is "charged" within the meaning of the Convention.' The requirement of "trial within reasonable time" has to be assessed in view of the particular circum stances of each case. The main criteria to be considered are the complexity of the case, the conduct of the authorities dealing with the case, the conduct of the individual and what is at stake for the person concerned. The fact that the accused is deprived of his liberty increases the need for diligence on the part of the authorities. The Court has not given a general definition of the concept of "reasonable time", and no maximum period has been established. For instance,

5

6

7

General Comment 13121 of 12 April 1984: Procedura l Guarante es in Civil and Criminal Trials (para. 10). On the juri sprudence of the Committ ee on the provisions of Article 14(3)(c), see in particular Nowak , sup ra note I, pp. 257-258 ; McGoldri ck: The Hum an Rights Committee (Oxford 1994), pp. 422-425 ; and Alfred de Zayas, 'The United Nations and the Guarant ees of a Fair Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' in David Weissbrodt and Riidiger Wolfrum (eds.), The Right to a Fair Trial (Springer 1998), pp. 684-685. For a review and analysis of the Court's case law see, in particular, Harris, O'B oyle and Warbrick, Law ofthe European Convention on Human Right s (Butterworths 1995) pp. 222230; and van Dijk and van Hoof, Theory and Practi ce of the European Convention on Human Rights (Kluwer 1998), pp. 442-450.

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in one case a period of two years and ten months was considered a violation of Article 6, whereas in another case a period of more than six years was not in breach of the provision." Consideration of the "complexity of the case" includes questions of facts as well as law. Several factors are considered, such as the nature of the facts to be established, the number of accused and of witnesses and the joinder of cases." In relation to the conduct of the parties, the Court has held that an accused is not required to co-operate actively in expediting the proceedings which may lead to conviction. However, the accused cannot argue that the reasonable time requirement has been violated if his attitude or behaviour is the main reason for the delay. Periods of inactivity increase the risk that Article 6 is violated. A State cannot invoke lack of resources or the volume of work as excuses for delays. Article 6 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements. However, a temporary backlog of court business does not constitute a violation if the State takes appropriate remedial action with the requisite promptness. It is interesting to note that the case law of the Commission includes cases lodged by persons having been accused of war crimes at the national level. In a decision of 1977, the Commission held, without further reasons, that the criteria determining the reasonableness of the length of ordinary criminal proceedings were not automatically applicable, but that the length of the proceedings had to be assessed in light of the exceptional character of the case. 10 This view was not upheld in a subsequent decision of 1981, which related to a person who was convicted for involvement in massacres committed in Poland (Podhorodce) in 1941. 11

8

9 10

11

See, respectively , Bunkate v. Netherlands, Judgment of 26 May 1993 (Serie s A 248-B), and, on the other hand, Boddaert v. Belgium, Judgm ent of 12 Oct. 1992 (Series A 235-D) . Van Dijk and van Hoof, supra note 7, p. 446. See application No. 6946/75 , X v. Federal Republic ofGennany D&R 6 (1977), p. 114. Van Dijk and van Hoof argue that, even if the normal criteria are applied , it is possible to take into proper account the special complexity of a case concerning war crimes , in particular the difficulty of collecting evidence, and that it is therefore hard to under stand why special cri teria should apply (p. 450) . Application No. 9433/81 , D&R 27 (1982) , p. 233. The relevant period in the 1981 decision started when the accused was arrested in Switzerland in December 1976 and ended when he received final judgment by the Dutch Supreme Court in January 1981. The Commi ssion used the normal criteria under Article 6 and observed that it followed from the very nature of the charge that the investigation required consideration of a substant ial quantity of evidence from different sources. Nothing in the file suggested that the manner in which the national

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C. Observations It is clear that the Tribunals are under an obligation to ensure that their proceedings are conducted "without undue delay". This follows explicitly from their Statutes, which reiterate the wording of the CCPR. Because of the similarity between CCPR Article 14 and ECHR Article 6, European case law concerning "trial within reasonable time" is also of relevance. A separate issue is the extent to which the criteria established by the Human Rights Committee and the European Court in connection with their supervision of states are directly applicable to the two International Tribunals, or to what extent they apply mutatis mutandis. This issue will not be dealt with here. The purpose of this overview of human rights case law has simply been to present the criteria developed in order to assess the performance of national judicial authorities, so as to use this analytical approach when describing the challenges with which the Tribunals are faced .

III. THE FACTUAL SITUATION

A. The Tribunal for Rwanda Having been set up by Security Council Resolution 955 of 8 November 1994, some time passed before the Tribunal could begin its work . The Rules of Procedure and Evidence (hereinafter referred to as the "Rules") were adopted on 5 July 1995, largely inspired by the Rules of the ICTy'12 The first detainees were transferred to the ICTR Detention Facilities in Arusha in May 1996. The Judges were

authorities conducted the proceedings was unreasonable. Investigating the crimes more than 30 years after their commission was extremely difficult. The investigation required the examination of a large number of witne sses scattered all over the world, whose whereabouts could only be ascertained with great difficulty, or not at all. The Commission also took into consideration that the proceedings had been suspended in view of the applicant's mental state of health . Moreover, variou s nullity proceedings delayed the findings of the Supreme Court , as well as the number of objections levelled by the accused and his counsel against procedural and interlocutory deci sions taken in the course of the proceedings. Consequently, the applic ation was declared inadmissible. 12

According to Article 14 of its Statute, the Judg es of the ICTR shall adopt the Rules of Procedure and Evidence of the ICTY with such changes as they deem necessary.

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only able to take up permanent residence there from September 1996 onwards. In spite of various difficulties, the first trial (Akayesu) started on 9 January 1997, followed by other trials in March (Rutaganda) and April (Kayishema and Ruzindana) of the same year. At the end of September 2002, 62 accused were deprived of their liberty. Eight persons had been convicted in seven judgements. One judgement lead to the acquittal of one accused. Six judgements were final. Six accused were serving their sentences in Mali. Several trials were in progress or near completion (see below) . The ICTR Trial Chambers had rendered more than 500 decisions on motions concerning various procedural issues . The judicial activities of the ICTR may be summarised as follows : - On 2 September 1998, Jean Paul Akayesu, a bourgmestre (mayor) was found guilty of genocide, of direct and public incitement to commit genocide and of crimes against humanity. He was sentenced to life imprisonment (ICTR Case No. ICTR-96-4). This judgement was confirmed by the Appeals Chamber on 1 June 2001. - On 4 September 1998, Jean Kambanda, former Prime Minister of the interim government in Rwanda from April to July 1994, was sentenced to life imprisonment, after a guilty plea on a count of genocide , a count of conspiracy to commit genocide , a count of direct and public incitement to commit genocide, a count of complicity in genocide and two counts of crimes against humanity (ICTR Case No. ICTR-97-23). The Appeals Chamber confirmed this sentence on 19 October 2000. - On 5 February 1999, Omar Serushago, a businessman and Interahamwe militia leader, was sentenced to 15 years ' imprisonment, after a guilty plea on a count of genocide and three counts of crimes against humanity (ICTR Case No. ICTR-98-39). This sentence was confirmed by the Appeals Chamber on 14 February 2000 . - On 21 May 1999, Clement Kayishema, a prefect , and his co-accused, abed Ruzindana, a businessman, were found guilty of genocide and were respectively sentenced to life and 25 years' imprisonment (ICTR Case No. ICTR96-5). The Appeals Chamber confirmed this judgement on I June 200 I. - On 6 December 1999, Georges Rutaganda, a businessman and second vicepresident of the Interahamwe militia, was found guilty of genocide and of crimes against humanity and was sentenced to life imprisonment (lCTR Case No. ICTR-96-3). The appeals are pending. - On 27 January 2000, Alfred Musema, a director of a tea factory, was found guilty of genocide and of crimes against humanity and was sentenced to life

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imprisonment (ICTR Case No . ICTR 96-13). The Appeals Chamber confirmed the sentence on 16 November 2001. - On 1June 2000, Georges Ruggiu, a broadcaster with Radio Television Libres des Mille Collines in Rwanda, pleaded guilty to a count of direct and public incitement to commit genocide and to a count of a crime against humanity (ICTR Case No. ICTR-97-32). He was sentenced to 12 years ' imprisonment. The judgement is final as none of the parties lodged an appeal. - On I June 2001, Ignace Bagilishema, a bourgmestre, was acquitted. The judgement was confirmed by the Appeals Chamber in June 2002. At the commencement of the trial, the Judges of the Trial Chamber and the parties travelled to Kibuye prefecture in western Rwanda to visit the places referred to in the indictment. This was the first time a Chamber of the ICTR visited Rwanda in connection with a trial. As of September 2002, nine trials concerning 22 accused were under way. Of these, two cases relating to three accused were at the stage of judgement writing (Laurent Semanza; Elizaphan and Gerard Ntakirutimana). Furthermore, 31 accused were awaiting trial, of whom nine had arrived in 2002. As of January 2001, the five full trials on the merits completed at that juncture at the ICTR (Akayesu, Kayishema and Ruzindana, Rutaganda, Musema, and Bagilishema) showed that the average time spent from the first day of the trial until the case was closed for deliberations had been about 15 months. An expeditious trial was that of Musema, which covered 39 days from 25 January to 28 June 1999, namely five months and three days." Another expeditious trial was that of Ntakirutimana (two accused), in which 43 witnesses were heard during 57 days in the period from 18 September 2001 to IO May 2002, in twin-tracking with another case. The longest of these five trials was that of Rutaganda, which lasted from 18 March 1997 to 17 June 1999. The duration of each trial depended upon such factors as the number of witnesses, requests for postponements, motions, illness and other variables which have differed from case to case. The Prosecutor, Carla del Ponte, has submitted a work programme which indicates the amount of investigative work, indictments and number of new trials to be held at the ICTR in the coming years. According to her figures of 4 July 2002, 20 accused were at large and 26 persons were under investigation. She expects the actual number of accused to be transferred to Arusha to be lower.

13

Prosecutor v. Alfred Musema, Case No. ICTR-96-13, Judgement, 27 Jan . 2000 , para . 30.

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B. The Tribunal for the Former Yugoslavia The ICTY was established by Security Council Resolution 808 of 25 May 1993 and began operations in November 1993, when the Judges started adopting the various legal instruments . As of January 2001,14 persons had been convicted and two acquitted in eight judgements. Forty accused were in proceedings before the Tribunal, of whom 37 were detained at the Detention Unit in The Hague and three had been provisionally released at the pre-trial stage under Rule 65. Among the 40 accused, 20 persons were at the pre-trial stage or awaiting trial, nine were before the Trial Chambers and 11 were on appeal. A large number of indicted persons have yet to be arrested. According to a report of May 2000 on the operation of the ICTY, the average duration of pre-trial litigation had been a little over 10 months, whereas the average length of trial had been a little over 12 months. The most expeditious trial at that juncture was that of Furundiija, where five months and 20 days were required for pre-trial preparation, with the trial lasting six months and two days. The longest trial was that of Blaskic. Pre-trial preparation took 14 months and 24 days, whereas the trial itself lasted for two years and seven months." Following the Prosecutor's submission in 2000 of her work programme for the ICTY, the Tribunal requested a pool of ad litem Judges , of whom nine can sit at anyone time. By resolution 1329 of 30 November 2000, the Security Council granted the request. The first ad litem Judges started working in The Hague in October 2001. 15

C. The Appeals Chamber The Appeals Chamber of the ICTY and ICTR, composed of common members, deals with interlocutory appeals against interlocutory decisions, appeals against judgements and requests for review. Its workload is heavy. In addition to reviewing interlocutory appeals, the Appeals Chamber had, as of January 2001, rendered final decisions in relation to four judgements of the ICTY tErdemovic, Tadic, 14

15

See Report on the Operation ofthe International Criminal Tribunalfo r the Former Yugoslavia, submitted in May 2000 to the Secretary-General by Judge Claude Jorda, President of ICTY, on behalf of the Judges of the Tribunal (p. 8) (hereinafter ICTY Report). Thi s Report was transmitted by the Secretary-General to the President of the Security Council on 7 September 2000 (S/2000/865) .

ICTY Report. p. 13.

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Aleksovski and Furundiijay and two judgements of the ICTR (Kambanda and Serushago) . At the end of September 2002, the number was higher. For instance, the ICTR Appeals Chamber had rendered six judgements. As of January 2001, the average time for appeals on the merits had been approximately two years, but because of the limited number of cases the figures were not significant. It is expected that the workload of the Appeals Chamber will become even heavier in the coming years as the number and importance of the first instance cases increases . It is also likely that its backlog will increase because the number of new cases will be greater than the Chamber's ability to dispose of them."

D. Observations In spite of the achievements of the ICTR and ICTY further improvements are required in order to increase their efficiency. Following a request from the General Assembly, the Secretary-General set up a Group of Experts to evaluate the functioning and operation of the Tribunals with the objective of enhancing the efficient use of the resources allocated to them. 17 After conducting a review in cooperation with their Presidents, Judges , Registrars and the Prosecutor common to both Tribunals, the Expert Group presented a comprehensive report. It concluded that both Tribunals were "reasonably effective" in carrying out their missions, but that each of the three organs of the Tribunals had recognised the need for improvement." The report contained a large number of recommendations, several of which were inspired by discussions with the Judges. Some of these suggestions will be mentioned below. On the basis of the systematic approach presented above (II. C) , the authors will now analyse some of the factors having a bearing on the efficiency of the Tribunals . This contribution will, however, not address the criterion "what is at stake for the individual" , even if it is important to recall that most accused are deprived of their liberty, which highlights even further the need for efficient proceedings.

16

[CIT Report, pp. 14-15 .

17

General Assembly Resolution 53/2 I2 and 53/213 of 18 Dec. 1998.

18

Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, subm itted to the Secretary-General on I I November 1999 (A/54/634), pp. 79-80 , para . 260 (hereinafter Expert Group's Report).

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IV. THE COMPLEXITY OF THE CASES A. Uncharted waters The report of the Expert Group, referred to above , contains the following introductory remarks: When the Security Council created ICTY and ICTR, it embarked upon unchartered waters. Apart from the Nuremberg and Tokyo Tribunals following the Second World War, which functioned in a totally different environment and under dramatically different circumstances, no international criminal tribunal established with conflicts such as those in the former Yugoslavia since 1991, or in Rwanda during 1994, had ever existed .. . [W]ithout (and perhaps even with) the benefit of actual practical experience, creation by the United Nations under its Charter of prosecutorial and judicial organs almost inevitably presented issues either unforeseen or not fully appreciated, issues that would unfold only through the often costly process of trial and error.' ? The conclusions of the report should also be recalled: It cannot be overemphasized that establishing a new and unique prosecutorial

and judi cial institution with the task of implementing a complex and not well defined set of legal norms with respect to extraordinary events in inhospitable environments was inescapably going to involve a lengthy development period . .. No system of international justice embodying standards of fairness, such as those reflected in the creation of ICTY and ICTR would, under the best of circumstances, either be inexpensive or free of the growing pains that inhere in virtually all new organizations.w The task with which the Tribunals are faced is quite different from proceedings conducted by national judicial bodies . It is true that there are various examples in member states of the United Nations of proceedings against persons who have committed crimes of a similar nature, both in the aftermath of the Second World War and later. However, international criminal justice is faced with unprecedented challenges, due to legal and factual complexities and also because of the international context in which it operates.

19

lbid ., p. 12, para. 15.

20

Ibid., p. 81, para. 264.

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B. T he complexity of the law The two Tribunals apply many sources of law, such as their Statutes, their Rule s, international humanitarian law, human right s law, as well as principles of criminal law from different jurisdictions. Thi s variety of sources, international and national, substantive and procedural, is in itself a challenge. The sources are complex and evolving , and sometimes not easily accessible. Previous case law provides limited guidance. Suffice it to mention a few illustrations. The crimes defined in the Statutes leave many que stions unanswered. One example is the crime of "genocide". Even if the Genocide Convention of 1948 and its travaux preparatoires contain some clarification, there was a clear need for further preci sion . The Akayesu judgement provided the first extensive judicial definition of the crimes of genocide, direct and public incitement to commit genocide and complicity in genocide and of their constitutive elements. In the same case, the Chamber adopted a progre ssive approach by including rape and sexual violence in the definition of genocide." Another exa mple is the concept of "command responsibility" and the extent to which it applies to civilians. Case law has only given some of the answers and is still evolving. The law applied by the ICTY and ICTR is a hybrid system of criminal law, inspired by two main legal traditions, "civil law" and "common law" .22 Thi s is particularly evident in the Rules adopted by both Tribunals, and the numerous procedural deci sion s that have been made before and durin g trial. The difference between the two sys tems, which may affect substantive issues, should not be exaggerated. In practice, the Chambers will usually find a solution acceptable to legal minds from both systems, thereby contributing to the construction of a new international criminal jurisprudence . The point here is simply that such decisions may require research and are time-consuming . With the development of precedent s, some of these problems will be reduced. In particular, the Appeals Chamber has an important role to play in order to clarify the main issues, thereby reducing the need for Trial Chambers to revisit them. It has already provided useful guidance by clarifying a number of substantial issues

21

See Prosecutor v. Jean -Paul Akayesu, Case No. ICTR-96-4, Judgement, 2 Sept. 1998, in particular paras 520 and 521 (definition of genocide), 559 (direct and public incitement to commit genocide) and 545 (complicity in genocide).

22

The law of the Tribunals can be considered as a system sui gene ris, see Patrick L. Robinson, 'E nsuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia' in European Journal of Intern ational La w (2000, vol. II , No. 3), pp. 569-580.

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in ICTY cases, such as the Tadic case, as well as deciding on numerous procedural issues . An extensive set of precedents will hopefully reduce the time needed for judgement writing (below VI. B).

C. The complexity of the facts The investigation of alleged crimes is a very complicated task, both for the Prosecution and the Defence (below V), and so is the establishment of the facts for the Chambers at the trial stage. Whereas it is not uncommon that national courts assess evidence several years after the events, this is the normal situation in both Tribunals. It is particularly apparent in relation to the ICTR, as its mandate is limited to 1994. The Trial Chambers are now assessing evidence more than eight years after the events in Rwanda, and their task will become even more complicated as time passes and the reliability of testimonies diminishes. At the end of the second four-year term of Judges in 2003, nine years will have elapsed. Also at the ICTY, the trials have so far focused on events in the early 1990s, even though its mandate is open-ended ("since 1991") . Moreover, ICTY faces the additional challenges of dealing with several conflicts (Croatia, Bosnia and Kosovo) . In most cases, the volume of documentation is considerable and in some cases immense . The parties and the Chamber may have to deal with thousands of pages of documents, statements and tapes, intended as evidence . In the ICTR's so-called "Media trial" against three accused, which started in October 2000, the Prosecu tion submitted prior to trial a list of 97 witnesses that it intended to call, disclosed more than 500 witnesses statements, 267 other documents, including newspapers, 698 audio-cassettes containing recordings of radio broadcasts and 43 videocassettes.P

The importance of the "cultural" factor should not be underestimated. The investigators, the parties and the Judges face challenges when trying to understand the cultures of Rwanda and of the former Yugoslavia." Delays are caused by

23 24

Case No . ICTR-99-52. The impact of cultural difficulties in relation to communication may be illustrated by an example from the Akayesu case. According to testimonies, the accused had declared that "if a snake wraps itself round a calabash, there is nothing that can be done, except to break the calabash ". It was later clarified that this proverb actually meant that if a Hutu woman married to a Tutsi man was made pregnant by him, the foetus had to be destroyed so that the Tutsi child which it would become should not survive (see Akayesu Judgement , para. 121).

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difficulties in communication, even with the assistance of interpreters. Witness statements, at the ICTR mostly in Kinyarwanda, are usually interpreted and translated into French and then into English . This is not only time-consuming, but elements of information may be lost during this process. The number of witnesses varies from case to case, but is generally high." The figures from the five first ICTR trials where the accused have pleaded not guilty are revealing : Akayesu (40), Kayishema and Ruzindana (80), Rutaganda (40), Musema (28) and Bagilishema (34). For reasons already indicated, the communication with witnesses in court presents problems. A single testifying witness will often take up a whole day, and in some instances more, particularly in joint trials where each defendant is assisted by one or more lawyers. Clearly, the Judges control the proceedings and should try to prevent the parties from spending time on unnecessary questioning . However, it is not always an easy task to draw the line between repetitious questioning and counsel's legitimate search for supplementary or contradictory information, in particular during cross-examination relating to the credibility of a witness. The complexity of the cases is also illustrated by the number of requests from both parties for additional time to prepare for trial or for breaks during trial (see below under V). The task of the Chamber is to find the balance between the steady progress of the case and the need to ensure a fair trial. In practice, the Defence is usually given additional time for preparation after the Prosecution has closed its case.

D. International co-operation The Tribunals rely on co-operation with States. The need for such co-operation arises at every stage of the procedure, from arrest to the enforcement of sentence s.

25

As of February 200 I, 285 witnesses had been brought to Arusha to testify before the ICTR . Most of them benefited from protective measures. About 95 percent of Prosecution witnes ses came from Rwanda and 95 percent of Defence witnesses from several other countries. Thes e countries included Kenya, Congo-Brazzaville, Zamb ia, Zimbabwe, Benin , Togo, Ivory Coast , Mali, Mauritania, Senegal, Tanzania , United States of America, Canada, United Kingdom, France, Belgium, The Netherlands and Switzerland. The Registry, responsible for the protection of witne sses , has to prepare their travel arrangements and organise protective measures, including special security and the concealment of their identity. The diverse origin of witnesses creates difficulties in ensuring their availability and presence at the ICTR for trial on given dates .

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Under Articles 28 and 29 of the ICTR and ICTY Statutes, respectively, States are under an obligation to co-operate with the Tribunals. During investigations, the Prosecution needs the assistance of States to seize physical evidence, arrest suspects, freeze their assets and place them in custody, or even to prevent intimidation of a victim or a witness." As the Tribunals do not have their own police force, delays and difficulties are caused in the arrest of suspects and accused, in particular for the ICTY. The process of transfer of an accused to the Tribunals' detention facilities is usually quite lengthy. It may require not only negotiations and logistical preparation, but also the adoption and ratification of enabling legislation by the State requested to co-operate. Once the accused is transferred to the Tribunal, other problems may occur, for instance in connection with evidence seized by the national jurisdiction. Chambers may also require various forms of documentation, for instance confessions or judgements at the national level. An important part of the obligation of States to co-operate with the Tribunal is to facilitate the transfer of witnesses from their territory to Arusha or The Hague .>

26 27

Rule 40 and 40 his of the Rules. There are exceptions. For instance, at her press conference in Arusha on 13 December 2000, the Prosecutor stated that two unnamed African countries had hampered the arrest of certain indicted individuals, who travel around the world using different names and genuine passports issued by some African countries (UNICTR Press Release ICTRJINFO-9-2-254 .EN, 13 Dec. 2(00). Even when States cooperate with the Tribunal, considerable time may elapse before accused persons are transferred to Arusha because they use their right to exhaust national remedies before transfer. For instance , about three years of legal proceedings were necessary before the United States Supreme Court refused certiorari in an appeal lodged by Elizaphan Ntakirutimana against a warrant issued by a Court in Texas. The United States Secretary of State then authorised his transfer to the Tribunal, which took place in March 2000. The case against him and his son, Gerard Ntakirutimana, was scheduled to start in January 2001, but had to be postponed because the Defence required more time for preparation and the Prosecution submitted a motion for amendment of the indictment (ICTR Case No. 96-10 and 96-17) .

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V. THE CONDUCT OF THE PARTlES

A. The Prosecution As already indicated, the nature of the charges and the systematic and widespread character of the alleged crimes normally require lengthy and complicated investigations. When the Prosecution has issued an indictment against the accused, it is submitted for confirmation to a Judge under Rule 47. In the past, a general criticism by defence counsel was that indictments were too lengthy and complicated and that they lacked precision . They often gave rise to procedural motions by the Defence, which delayed the pre-trial stage. Indictments are now briefer and more precise." This is an important step towards the reduction of the number of pre-trial motions. Rules 48 and 49, common to both Tribunals, and Rule 48 his in the ICTR Rules, contain the legal conditions for joinder of trials and accused. In view of the large number of accused awaiting trial, it is tempting to assume that joint trials will reduce double work and the need for witnesses to give the same or related testimony in several trials. However, the joinder of several accused whose cases are at different procedural stages may hold back cases that are ready for trial. The challenges posed by the presence of several accused and lawyers in a single trial in terms of time requirements and logistics should also not be overlooked. Experience seems to indicate that joint trials increase the efficiency of the Tribunals, but the number of accused joined in one case should not be too high."

28

See press release of 13 December 2000 concerning the Prosecutor's press conference on that date in Arusha (lCTRlINFO-9-2-254).

29

A request by the Prosecutor to join 29 persons in one case at the ICTR was denied on 31 March 1998. The joint indictment was considered inadmissible as drafted. The confirming Judge found that he was not competent to confirm the indictment, since some accused had already appeared before a Trial Chamber whereas others had yet to be arrested. The Prosecutor lodged an appeal on 6 April 1998. The Appeals Chamber, having rejected her request for a stay of proceedings with respect to the accused dealt with in the indictment, rejected that request on 8 June 1998. In 1999, the Prosecution filed motions for joinder of smaller groups of accused and requests for amended indictments. These motions were heard from August 1999 and were generally granted. The groups of accused comprise persons from the same geographical area in Rwanda, such as Butare, Cyangugu and Kibuye, or accused with similar responsibilities in 1994, for instance the so-called Media, Military or Governments cases. The Prosecution's original strategy to aim for a very high number of joined accused, which was not accepted by Chambers, and the ensuing need for a different strategy, clearly led to delays.

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At the ICTR, the Prosecutor on some occasions, mainly in the past, filed motions at a late stage, in particular in order to amend the indictment, sometimes only weeks before the date set for the commencement of the trial on the merits.'? Under Rule 50, it is for the Chamber to give leave for such amendments.When amendments were accepted, the Defence had to be given more time for the filing of preliminary motions under Rule 72. The adjournment of trial dates was the inevitable consequence. It even happened, for instance, in the Akayesu and Musema trials, that the Prosecution requested amendments of indictments during the trial itself, as a result of new information allegedly revealed during trial. Disclosure of documents to the Defence has also caused problems . Under Rule 66, the Prosecutor must disclose to the Defence within 30 days of the initial appearance the supporting material accompanying the indictment, and all statements obtained from the accused. Additionally, the Prosecutor must disclose to the Defence, prior to trial, the statements of all witnesses whom she intends to call to testify at trial. Occasionally, at the ICTR, the Prosecutor has disclosed to the Defence a large number of documents before trial, while presenting only a portion of the material during trial.

B. The Defence Under Rules 44 and 45, an accused who is transferred to the seat of one of the Tribunals can engage counselor, if indigent, have counsel assigned by the Registrar. Moreover, under Rule 62 the accused must, after transfer, be brought before a Trial Chamber or a Judge thereof "without delay" . Lack of available counsel has led to requests for adjournment, in particular during the initial appearances of accused, although Rule 44 hi s of the ICTR Rules provides for the possibility of assigning a duty counsel. On occasion , the procedure of assigning counsel to the accused has taken time and delayed the proceedings. For instance, Jean-Paul Akayesu successively requested and rejected four different counsel , who were assigned to him." Once counsel is assigned, it is not always easy to organise hearings of motions with lawyers who also have a busy schedule in other countries .

30

31

On 4 January 2001 , the Prosecutor reque sted leave to amend the indictment again st Juvenal Kajelijeli less than 20 days before the date set for the opening of the trial. Another example at the ICTR is the Ntakirutimana case, see above . See Prosecutor v. Jean-PaulAkayesu, Case No. ICTR-96-4 , Judgement, 2 Sept. 1998, para. 13.

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A related issue is the need for defence lawyers to return to their home countries in the course of trial because of other judicial commitments or in order to ensure the proper functioning of their law firms. Even if they are expected to give priority to the Tribunal, requests of this nature are not unreasonable in cases lasting several months. As most defence teams now have a lead counsel and a co-coun sel, it is possible to accept legitim ate requests but avoid postponem ent by requiring that the colleague continues with the case. If the Chamber conducts two cases in parallel ("twin tracking"), an alternative is for the Chamber to accept the request and to work on the other case. One of the main bottlenecks at the Tribunals has been the pre-trial stage, due to the high number of preliminary motions filed under Rules 72 and 73. Some motions are part of the normal procedure, for instance, requests by both parties for witness protection under Rules 69 and 75. The statistic s show, however, that a very high proportion of motions are filed by the Defence. Combined with requests for oral hearing s, which depend on the availability of both parties and the court schedule, these pre-trial motions have led to serious delays. The Tribunals have addressed these issues by amendm ents of the Rules and in some instances by denying costs for motion s considered frivolous (see below VII. B). An assessment of the role of the accused and the Defence in the proceeding s of the ICTR should not overlook the special difficultie s faced by defence lawyers in Arusha. Whereas all Prosecution teams now have permanent offices at the seat of the Tribunal , defence teams come and go. The Registry has made many attempts to facilitate the working conditions of the defence lawyers, but difficultie s due to budgetary, logistical and admini strative constraints still remain to be solved. More formali zed lines of communication between defenc e lawyers and the relevant branches of the Tribunal could facilitate the adoption of practical solutions in many areas."

32

See Expert Group 's Report, pp. 65-73. At the ICTR, office space has been made available to defence coun sel, but it is limited and the equipment (computers etc.) leaves much to be desired. Transport facilitie s, for instance between the ICTR and the detention facilities, have been improved, but still present challenge s. The defence lawyers' access to their client s depends on the visiting hours of the detention facilitie s. which are not always well suited to court hours. Travel to Rwanda in order to meet with potential witnesses or to obtain documentary evidence can be difficult to arrange. Many other examples could be mentioned .

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VI. THE "CONDUCT OF THE AUTHORITIES" According to Articles 10 and 11 of the ICTR and ICTY Statutes , respectively, the Tribunals have three organs: the Chambers, the Prosecutor and the Registry. Moreover, as subsidiary organs under the Security Council, the Tribunals ' budget depends on allocations in the overall United Nations budget. Consequently, in assessing the reasonableness of delays, the criterion concerning "the conduct of the authorities" is more complicated than at the national level. The role of each of the three organs will be assessed in tum, before turning to the Organization of the United Nations.

A. The Prosecutor The Prosecutor has a dual role . She is both a party to the proceedings and one of the three organs under the Statute . Her impact on concrete cases has been described above. In the present context it is important to note that her decisions of principle as an organ will have a bearing on the functioning of the Tribunal as a whole. This is particularly true in relation to her prosecuting strategy. As mentioned above, the Prosecutor intends to bring a number of new accused before the Tribunals, focusing on leaders. As the number of indictments to be issued has a direct bearing on the total life span of the two ad hoc Tribunals, much will depend on her definition of "leaders". There is a need to reflect further on how many accused the two Tribunals should deal with. As time passes, the assessment of the evidence will become increasingly complicated for the Chambers. This already affects the speed of proceedings . A division of work is required between prosecution at the international and the national levels, in particular in relation to the States directly concerned ." This should also be taken into account by the Security Council , which has the last word in relation to the mandate of the Tribunals. The view seems to be emerging that the life-span of the two Tribunals should not exceed 2007-2008 .

33

The Rwandan Government has reinforced state prosecutions for genocide and crimes against humanity. About 120,000 accused are awaiting trial in Rwanda . An interesting initiative has been the establishment of traditional participative courts (Gacaca) to try genocide suspects . The legal basi s for this initiative, a draft Rwandan Organic Law, was declared constitutional by Rwanda's Constitutional Court on 16 January 2001. The judges of the Gacaca courts are chosen from among Rwandans known for their integrity, good conduct and honesty, and provided with training . The system became operational in 2001.

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B. Chambers The Judges have to ensure that trials are fair and are conducted without undue delay. Both parties must be allowed an equal opportunity to present their case, and the accused has the right to adequate time to prepare his or her defence. For the present purposes, the proceedings may be divided into three stages, before, during and after trial. At the pre-trial stage, the main problem so far has been to dispose of motions and ensure steady progress towards trial. It is important to note that the efficiency at this stage does not depend on the number of days in court, because much can be achieved by a written procedure. Unfortunately, as mentioned above, the pre-trial stage has been quite lengthy in many cases . Even with few procedural complications there may be a certain "waiting period" until the trial can start, due to the infrastructure of the Tribunals. In particular, each Tribunal has only three Trial Chambers, each dealing with several time-consuming trials. The introduction of ad litem Judges is important to alleviate the situation (below VII. A). At the trial stage, the average length of ICTY trials was previously 12 months (see above)." At the ICTR, the five first full trials lasted for an average of 15 months, the two last cases (Musema and Bagilishema) requiring less time. The number of actual days in court was much less, due to circumstances described above (e.g. availability of witnesses and defence lawyers, need for translation , need to address motions etc).35 One of the most important tasks is to reduce the difference between the total period of the trial and the number of days actually spent in court. Long-term planning is essential in order to ensure the availability of counsel. When a break is unavoidable, the Chamber may address another trial. At the ICTR, the possibility of "twin tracking" has been used with some success . It is also important to use the days in court more efficiently. Examination and cross-examination of witnesses is sometimes extremel y time-consuming. The Judges endeavour to limit the time needed for such examination, for instance by guidance or fixed allotment of time. Experience shows that a more active use of written witness statements taken by investigators may assist in obtaining greater

34

35

ICTY Report, pp . 8 and 15. For example, the Akayesu trial, which lasted for about 14 months, from 9 January 1997 to 26 March 1998, the Trial Chamber began its deliberations after only 60 actual days in court .

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concentration on the relevant issues during the oral examination." Another possibility is to use Rule 92 his, which has been introduc ed to allow a Trial Chamber to admit evidence of a witness in the form of a written statement in lieu of oral testimony. Testimonies from victims present particular challenges. A balance must be found between allowing them to tell their story on the one hand and to concentrate on those parts that are important to the case. A borderline must also be drawn between the right of the Defence to cros s-examination and protection of vulnerable witnesses. The Expert Group recommended greater use of judicial notice as a way to reduce trial time devot ed to establishing background facts already establi shed in another trial." So far, this approach has been used with caution . The way in which trials can be conducted more efficiently is regularly discussed by the Judges, within Chambers, in the relevant fora within each Tribunal (Bureau, Plenary) and even between all Judges of the ICTR and ICTy'38 The third stage, judgement writing, so far has required an average of six months after a full trial on the merits at the ICTR . For an outside observer, this may seem a long time. It should be recalled, however, that the legal and factual matters are very complicated. Moreover, the Trial Chamber s have so far written rather voluminous judgemen ts. At the ICTR , this is illustrated by the length of the five full jud gements rendered so far, Akayesu (294 pages), Kayishema and Ruzindanda (266 pages), Rutaganda (\73 pages) Musema (326 pages) and Bagilishema (450 pages). Furthermore, judge ment writing takes place in parallel with subsequent trials. As judgements are rendered simultaneously in both working languages, English and French, translation is one of the factors that extends the time required . There is reason to believe that the length of judgements and the time required for drafting will be reduced when more legal issues have been clarified by the Appeal s Chamber and more judgements have been rendered. This is also a matter of sufficient resources, such as judgement dra fting teams.

36

Expert Group's Report, pp. 29-30, paras 75-77.

37

Ibid., p. 33, para. 85.

38

Following a sugges tion by the Legal Office of the Organisation of the United Nations, the Judges from the ICTR and ICTY met from 29 September to I October 2000 in the United Kingdom to discuss matters of common interest. Another meeting took place in Ireland (Trinity College, Dublin ) from 12-14 October 200 1. The discussions concentrated on ways to improve the functioning of the Tribunals.

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c. The Registry It follow s from Articles 16 (1) and 17 ( I) of the Statut es that the Registrars, as representatives of the Secretary-General of the United Nations, are responsible for the general provision of adequate logistical and staff support. Thi s task is particularly important and cumbersome, as inadequate personnel or other services, such as lack of adequate court registry support, may result in difficulties in judicial administration. For instance, vacan cies in the translation section have in certain periods had a bearing on judicial activities. The Tribunals have a tremendous need for translation and interpretation, which falls under the responsibilities of their Registries. Both the ICTY and ICTR have two working languages, Engli sh and French. Furthermore, the ICTR source language is Kinyarwanda and that of the ICTY is Bosnian-Croatian-Serbian, Therefore, a large number of documents submitted in accordance with the Rules, such as motion s, replies, deci sions and all judgements, need to be translated. Moreover, evidence collected by the Prosecutor may need two different translations. For instance, the statement of a Rwandan witness may first be taken in Kinyarwanda, then translated into Engl ish to be understood by the investigators and prosecutors, and then into French. If witness statements are not available in both officia l languages before a trial , it is not infrequent that it cau ses the Defen ce to reque st a postpon ement of the date of the trial. To some extent , lack of translation may be remedied by the way in which the trial is conducted, for instance if the Chamber asks the Prosecution to proce ed with the evidence that has been translated. Clearly, the preparation of the trial and its conduct would be facilit ated if all the material the Pro secution intends to rely on were available in both languages well before the trial. 39 Each accused is obviou sly entitled to use his or her own langu age of choice." Whereas the ICTY courtrooms are technically equipped to permit simultaneous interpretation into three langu ages, the ICTR only has two languag e channels open for such interpretation. Moreover, there has been a lack of interpreters trained in simultaneous interpretation in Kinyarwanda. For these reason s, the interpretation

39

There are man y ways to reduc e delay s in translation, see Report from the Translation Facilitation Working Group fo r Chambe rs, ICTR, 28 Apr. 2000 . Not only increased personne l, but also reduction of the documents sent to translation and increased cooperation between the Chambers, the Parties and the Section of the Registry responsible for translation are important remedi es.

40

Rule 3. At the ICTR , most accused are bilingual FrenchlKinyarwand a speaking.

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between Kinyarwanda and the two working languages has been consecutive. The need to finish each question or answer before it can be interpreted into or from Kinyarwanda, followed by the simultaneous interpretation into English or French , doubles or triples the time needed to hear witnesses as compared with the proceedings conducted in one language only. Since September 200 I, one Chamber at the ICTR has had simultaneous interpretation from Kinyarwanda, which saves at least 25 per cent court time compared to consecutive interpretation. Training of more interpreters is underway. Under Rule 45, the Registrar is responsible for assigning defence counsel to indigent accused . In November 1998, the previous ICTR Registrar decided to impose a moratorium on the assignment of counsel of Canadian and French nationality, as he considered them over-represented among defence lawyers.To some extent, this resulted in delaying the assignment of defence lawyers to accused who insisted upon Canadian or French lawyers. The moratorium was officially lifted on 22 November 1999.

D. The Organization of the United Nations The two Tribunals operate within a framework that affects their efficiency. Logistic limitations have been a problem for both Tribunal s. From their respective inceptions to 1998, the ICTY and ICTR had only one courtroom each, despite having two Trial Chambers and an Appeals Chamber. It was therefore not possible for two Chambers to sit simultaneously. Two additional courtrooms were constructed both in Arusha and in The Hague in 1998. Since then, there has been a courtroom for each of the three Trial Chambers. The Tribunals are also dependent upon the human and logistical resources that are provided by the United Nations annual budget. Its recruitment procedure s are cumbersome and do not always accommodate the need for flexibility required by judicial bodies faced by chang ing circumstances. Furthermore, the Tribunals ' Statutes can only be amended by a resolution of the Security Council. As in national jurisdictions, this "legislative" process may require time. Three structural reforms have already taken place (see below).

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VII. MEASURES ADOPTED TO INCREASE THE EFFICIENCY OF THE TRIBUNALS

A. Modification of the Statutes Based on experience, the Judges agreed in 1997 that the creation of additional Trial Chambers was necessary for the Tribunals to perform their mandates." The President of the ICTR, soon followed by the ICTY, approached the Security Council with a request for a third Trial Chamber." The Security Council granted these demands and consequently established one additional Trial Chamber for each of the Tribunals ." The ICTY Report, submitted in 2000, showed the necessity of a new structural reform to allow the ICTY to accomplish its mandate without undue delay. The Judges supported the introduction of ad litem Judges, who would be made available to serve in the Trial Chambers when needed ." By Resolution 1329 of 30 November 2000, the Security Council established a pool of ad litem Judges in the ICTY. It also enlarged the membership of the Appeals Chamber with two Judges . Two additional ICTR Judges would be elected as soon as possible. Two ICTR Judges would then be assigned to the Appeals Chamber. This reform was intended to ease the work-load of that Chamber. It also ensured that the ICTR Trial Judges are represented in the Appeals Chamber. This was not envisaged under the original Statutes. Following information by the Prosecutor about her future investigation programme, the ICTR made a similar request for ad litem Judges in July 200 1.The Security Council allowed for a pool of such Judges by Resolution 1431 of 14 August 2002 . After being elected, the ad litem Judges will start working at the ICTR in 2003 .

41

42

43

44

Already in its Resolution 955 (1995), the Security Council indicated that it would "consider increasing the number of Judges and Trial Chambers of the International Tribunal if it become s necessary". Letter of Judge Laity Kama, then President of the ICTR, dated 31 July 1997, transmitted by identical letters by the Secretary-General to the Presidents of the Security Council and the General Assembl y on 15 October 1997 (S/l997/812). Security Council Resolution 1165 of30Apri11998 for the ICTR; Resolution 1166 of 13 May 1998 for the ICTY.

ICTY Report, pp. 27 et seq.

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B. Amendments to the Rules of Procedure and Evidence

The Rules of the ICTR have been amended many times since their adoption, often in a combined effort with ICTY or following modification of the ICTY Rules." The examples provided below focus on amendments which aimed specifically at speeding up the proceedings." Following amendments on 8 June 1998, the ICTR Trial Chambers hold pre-trial and pre-defence conferences, in conformity with Rules 73 his and 73 ter, respectively. The Chamber may require a list of witnesses, a summary of the intended content and length of the testimony of each witness, a statement of admitted facts and law, a statement of contested facts and law, and a list of exhibits . On this basis, the Chamber can order that the number of witnesses be reduced and the length of the testimonies be shortened. These modifications have speeded up proceedings. On 1 July 1999, Rule 73 was amended to allow motions under that provision to be considered on the basis of a written procedure, thereby avoiding a hearing and the need to convoke parties to the seat of the Tribunal. This amendment has contributed greatly to reduce the length of the pre-trial stage and simplify the consideration of motions . Another innovation adopted on the same date, was that motions under Rule 73 may now under certain conditions be decided by a single Judge, rather than by the full Chamber. This possibility has facilitated the situation at the pre-trial stage. Rule 73, as subsequently amended on 21 February 2000, also provides that motions filed under this provision and supporting materials must now, unless otherwise decided, be filed within ten days of the date set for hearing of the said motion , and any responses within five days. This simplifies the preparation of hearings and avoids postponement. On 21 February 2000, Rule 72 on preliminary motions was amended to enable both the Trial Chamber and the Appeals Chamber to deal with such motions without delays. Questions pertain ing to the form of the indictment can be raised in one motion only. It was also clarified that interlocutory appeals on objections based on "lack of jurisdiction" refers to motions challenging indictments which do not come

45

46

The ICTR Rules, initially adopted on 5 July 1995, have been amended on several occa sions. The latest version is dated 6 July 2002. The ICTY Rules, first adopted on II February 1994, have been changed even more frequently. On the significance of the Rule s and amendments thereof for speeding up the proceedings, see Robinson , supra note 22, pp. 580-582.

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under the ICTR's jurisdiction ratione temp oris, loci, materiae and personae. Moreover, a filtering process by three Judges was introduced at the appeal level. Also on 21 February 20()(), the ICTR added a provision in Rule 73 according to which the Chamber may impose sanctions against counsel who brings a motion that, in the opinion of the Chamber, is frivolous or an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof. Previously, the Chamber had imposed such sanctions by virtue of its inherent competence to control the proceedings, but it was felt preferable to insert an explicit provision. It has been used in some cases. Turning to measures adopted to facilitate the expedition of the trials as such, Rule 15 was amended on 21 February 2000. Judges are no longer disqualified from participating in a trial if they have confirmed the indictment against an accused in the trial. It had become apparent that the disqualification clause impeded an efficient organisation of trials and that it was not really necessary in the interests ofjustice. Human rights case law did not prevent its abolition. Another important amendment has been Rule 15 his, which allows two Judges to continue the trial for not more than five working days if the third Judge is ill or is unable to be present for reasons of authorised Tribunal business. Rule 92 his on written witness statements in lieu of oral testimony also provides an opportunity to avoid delays. Additionally, the ICTY adopted other amendments to its Rules aimed at shortening the pre-trial procedure, such as Rule 65 his, establishing compulsory status conferences, and Rule 65 ter, providing for a "pre-trial Judge" to be designated within the Chamber, who coordinates communication between the parties during the pre-trial phase." Rule 65 ter (B) stipulates that the pre-trial Judge shall ensure that the proceedings are not unduly delayed and shall take any measure necessary to prepare the case for a fair and expeditious trial.

VIII. FINAL OBSERVATIONS

The purpose of this contribution is not to justify delays , but to illustrate that the two ad hoc Tribunals have to surmount many challenges in the fulfillment of their mandates. In this perspective, they face the crucial problem and legal obligation to try all accused without undue delay. This presupposes, first, that the Tribunals be granted all necessary means to do so, including assistance by States to arrest all the

41

ICTY Rules 65 his and 65 ter were adopted on 25 July 1997 and 10 July 1998, respectively.

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accused and facilitate the transfer of witnesses to The Hague and Arusha . Moreover, trial without undue delay also means that the organization and the functioning of the Tribunals, as well as their proceedings, need to be constantly and thoroughly scrutinized. Although much has been achieved, there is still room for further improvements. Streamlining the judicial administration of the Tribunals is vital for the achievement of their two main objectives, to render justice and thereby contribute to reconciliation. To recall a citation from Professor Cassese 's report to the General Assembly in 1995: If the Tribunal can prove to the world that it is possible to administer international criminal justice, that it is imperative for legal and moral reasons and practical to do so, it will have performed a great service for the development of international law. It will also send a message to the victims of appalling crimes that humanity will not tum its back on them." The Tribunals are indeed playing a pioneering role. Other international tribunals and the new International Criminal Court will be able to build on their experience. In a nutshell , the efficiency of the Tribunals is important for the development and credibility of international criminal justice.

48

Second Annual Report of ICTY (N50/365) of 23 August 1995, presented by its President, Judge Antonio Cassese (para. 199).

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TOPICS WITHIN THE SPHERE OF SENTENCING IN INTERNATIONAL CRIMINAL LAW Florence Ndepele Mwa chande Mumba

I. INTRODUCTION With this article I do not intend giving a complete overview on the vast subject of sentencing in international criminal law. I would like to pick out only some topics and to examine them among other things in the light of the jurisprudence of the two International Criminal Tribunals for the former Yugoslavia and Rwanda. It is not necessarily my aim to give any answers, but rather to show different aspects of certain schools of thought. I will start by examining the different objectives a sentence has in international criminal law. Then I will consider the question whether there should be uniformity in sentencing and how uniformity could be achieved, before writing about the degree of discretion judges should have in impo sing punishment. Chapter IV deals with the influence of the victims ' point of view on the sentence, and finally I will examine some aggravating and mitigating circumstances such as the level of brutality in carrying out the crime, the guilty plea and the age of the defendant. Before I start, it may be useful to define the term sentencing: Sentencing can be broadly defined as the punishment of individuals found guilty of criminal behavior.' More specifically it can be understood as the post-conviction stage of the criminal justice process in which the defendant is brought before the court for imposition of sentence.'

1

Austin Lovegrove, Judi cial Deci sion Makin g, Sentencing Policy and Numerical Guidan ce , 1 (1989).

2

Black' s Law Dictionary.

L.c. Vohrah et al. (eds.), Man 's Inhumanity to Man , 567 -594 ©2003 Kluwer Law Intern ational. Printed in the Netherlands.

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II . OBJECTIVES OF SENTENCING IN INTERNATIONAL CRIMINAL LAW

A. General remarks Classical criminal law theory proposes several objectives for punishment: general prevention or deterrence (the punishment serving to dissuade society 's members from committing offences), specific prevention (the punishment aimed at deterring the convicted person from recidivism), retribution (or "just deserts" as attenuated by the principle that punishment shall be proportionate to the crime's gravity and the moral guilt of the perpetrator), rehabilitation of the convicted person (or his treatment, re-education or social reintegration) and protection of society (by neutralizing the convicted person). The importance and appropriateness of each of these change with time and from one legal system to another. In addition, punishment often appears to serve several purposes , the relative weight of which depends on the nature of the crime and the individual circumstances of the perpetrator.' In fact, the purpose of the imposition of penalties, according to Article 33 of the Federal Penal Code of Yugoslavia,' was to prevent the perpetrator from committing additional criminal offence s, to deter similar actions by other would-be criminals, to preserve the morals of society, and to influence the development of social respon sibility and individual discipline.' Furthermore, national legal systems typically have a much wider range of sentencing options than an international tribunal, which is limited to imposing sentences of imprisonment,"

3

4

5 6

Prosecutor v. Drai en Erdemovic, Case No. IT-96-22, Sentencing Judgement, 29 Nov. 1996, para. 60. "Within the general purpo se of criminal sanctions (Article 5 (2)), the purpose of punishment is to: ( I) prevent the perpetrator from comm itting criminal offences and re-sociali se him; (2) pedagogically influence others not to commit criminal offences ; (3) strengthen the morals of the socialist self-managing society and to influence the development of social responsibility and of discipline among st the citizens". Article 5 (2) reads : "The general purpose of prescribing and imposing criminal sanctions is the repression of socially dangerous activities, which threaten or harm the social values protected by the penal legislation". Blagojeci c, Boris T. (ed.) , Guide to The Yugoslav Legal System, (1979) , at p. 99. According to Article 77, para 2 of the Rome Statute of the International Criminal Court , " [ijn addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceed s, property and assets derived directl y or indirectly from that crime , without prejudice to the right s of bona fide third parties".

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Her e I will consider the purposes and functions of a sentence and a penalty for crimes over which international tribunals have jurisdiction. Even though the ratione materiae jurisdiction of the International Tribunal differs fundamentally from that of a national court which puni shes all sorts of offenc es, usually ordinary crimes, some of the functions laid out before are echoed in the resolutions setting up the two international ad hoc tribunals for the form er Yugoslavia and Rwanda. For example, referring implicitly to the notion of deterrence, the Security Council affirmed its conviction that the work of the two tribunals " will contribute to ensuring that such violations are halted"." The effective prosecution and punishment of offenders is therefore intended to deter others from committing the same crimes, and perhaps to convince those already engaged in such behavior that they should stop." The Security Council also alludes to retribution when it says that the violations mu st be "effectively redressed". " The declaration s by the Member States of the Security Council at the time resolution 827 was adopted show that the y saw the International Tribunal as a powerful mean s for the rul e of law to prevail, as well as to deter the part ies to the conflict in the former Yugoslav ia from perpetrating further crimes or to discourage them from committing furth er atro cities. 10 Furthermore, the declaration s of se veral Security Council members were marked by the idea of a penalty as proportionate retribution and reprobation by the international community of those convicted of serious violations of international humanitarian law." Th e ICTY, in its first annual report to the Gen eral Assembly and the Security Council (1994), restated those ai ms and added that the impunity of the guilt would onl y fuel the desire for veng eance in the former Yugo slavia, jeopardising the return to the "rule of law" , "reco nciliation" and the restoration of "true peace". ' 2

7

Resolut ion 827 (199 3).

8

Sch abas, Sentencing by International Tribunals: A Human Rights Approach, pp. 25-26.

9

Resolu tion 827 (199 3).

10

II

12

See in parti cular the declarations by France (p. 12), Moro cco (pp. 27-28), Pakistan (p. 31) , United Kingdom (pp. 19-20) and United States (p. 12); provisional minut es of the 3217th session (Srrrans. 3217 . 25 May 1993).

Prosecutor v. Drai en Erdemovic, Case No. IT-96-22 , Sentencin g Jud gement, 29 Nov. 1996, para. 58 . See paras 11-16 of first annual report of the International Criminal Tribunal for the form er Yugoslavia, A/49/ 342, Statute/1994/1007, 29 Aug. 1994 .

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The International Tribunal's objectives as seen by the Security Council - i.e. general prevention (or deterrence), reprobation, retribution, as well as collective reconciliation - fit into the Security Council's broader aim of maintaining peace and security in the former Yugoslavia. These purposes and functions of the International Tribunal as set out by the Security Council may provide guidance in determining the punishment. 13 Furthermore, the search for truth is much of the struggle for international justice, and the battle against impunity. As United States permanent representative Madelene Albright told the Security Council at the time of the adoption of the Statute for the Yugoslav tribunal, in May 1993: "Truth is the cornerstone of the rule of law and it will point towards individuals, not peoples , as perpetrators of war crimes . And it is only the truth that can cleanse the ethnic and religious hatred and begin the healing process" . 14 The eternal contribution of the Nuremberg Judgment is not so much the individual punishment of the handful of accused, most of whose names have been long forgotten by all but the experts , but rather in its affirmation of the fact of Nazi atrocities . The jurisprudence of Nuremberg and the subsequent national military tribunals remains the most authoritative argument against revisionists who attempt to deny the existence of the gas chambers at Auschwitz and the other horrors of Nazi rule . IS That said, now I will consider some of the main functions of sentencing recognized by the international law in more detail.

B. Retribution

The theory of retribution, which is an inheritance of the primitive theory of revenge, urges the Trial Chamber to retaliate to appease the victim." Historically, retribution derives from the lex talionis: "If a man injures his neighbor, what he has done must be done to him: eye for eye, tooth for tooth" . As the injury inflicted, so must be the injury suffered . Retribution is synonymous with vengeance . Retributive theorists argue that if the authorities fail to punish, then individual selfhelp will take over, and vigilante action will become the rule. But while it may be

13

Prosecutor v. Drai en Erdemovic, Case No . IT-96-22, Sentencing Judgement, 29 Nov. 1996,

para.58. 14

UN Doc . SIPV.3 I75.

15

Schabas, supra note 8, p. 26.

16

Prosecutor v. Delalic et al., Case No. IT-96-21 , Judgement, 16 Nov. 1998, para. 1231.

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important to recognize the danger of such developments, surely a human rights approach must aim at combating these tendencies in society, which run counter to the rule of law and the protection of individual rights.' ? Hannah Arendt, in Eichmann in Jerusalem, wrote : "We refuse, and consider as barbaric, the propositions that crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal. And yet I think it is undeniable that it was precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with , and that they are, in fact , the supreme justification for the death penalty"." In general at Nuremberg and Tokyo , and in the various successor trials of the national military tribunals, retribution played a major role in the fixing of sentences, as is shown by the widespread use which was made of the death penalty. In the Security Council, when the Statute of the ICTR was being adopted, New Zealand's representative Keating stated: "We do not believe that following the principle of 'an eye for an eye' is the path to establishing a civilized society, no matter how horrendous the crimes the individuals concerned may have committed" .'? To the extent that it recognizes the legitimacy of retribution, the Security Council's reference to "redress" is perhaps unfortunate. But it is possible to separate redress from retribution. For the victims, and for the public in general, the thirst for justice may be better satisfied by society's condemnation of anti-social behavior than by the actual punishment of the offenders. What is desired is a judgment, a declaration by society, the identification and stigmatization of the perpetrator. This alone is often sufficient redress. What is actually done to the offender as a result of conviction may be far less important. For example, in Rwanda, since the genocide of April-June 1994, tens of thousands of suspects have been detained in appalling conditions. This is surely a form of punishment, but one that gives little satisfaction because it does not result from a trial and judicial determination of guilt. 2o In the same sense the Trial Chamber stated in the Furundilja case: "It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatisation and deterrence. This is particularly the case for

17

Schabas, supra note 8, pp . 27-28 .

18

Hannah Arendt, Eichmann in Jerusalem , A Report on the Banality of Evil, (1994) at p. 277 .

19

UN Doc . SIPV.3453 , p. 5; Schabas, supra note 8, p. 28 .

20

Ibid., p. 28.

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the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion, and this punitive effect must be borne in mind when assessing the suitable length of sentence"." The Trial Chamber in the Delalic judgment stated that "[tjhe policy of the Security Council of the United Nations is directed toward reconciliation of the parties. This is the basis of the Dayton Peace Agreement by which all the parties to the conflict in Bosnia and Herzegovina have agreed to live together. A consideration of retribution as the only factor in sentencing is likely to be counterproductive and disruptive of the entire purpose of the Security Council, which is the restoration and maintenance of peace in the territory of the former Yugoslavia. Retributive punishment by itself does not bring justice"." But in the Kupreskic judgment the Trial Chamber stated that "it is of the view that, in general, retribution and deterrence are the main purposes to be considered when imposing sentences in cases before the International Tribunal. As regards the former, despite the primitive ring that is sometimes associated with retribution, punishment for having violated international humanitarian law is, in light of the serious nature of the crimes committed, a relevant and important consideration"."

C. Deterrence The principle of deterrence , as defined in the Kambanda case, aims at dissuading for good those who will be tempted in future to perpetrate such atrocities by showing them that the international community is no longer ready to tolerate serious violations of international humanitarian law and human rights." It is not only right that punitur quia peccatur (the individual must be punished because he broke the

21

Prosecutor v. Anto Furundiija , Case No. IT-95-17/1, Judgem ent, 10 Dec. 1998, para . 290.

22

Prosecutor v. Delalic et al., Case No. IT-96 -21, Judgement, 16 Nov. 1998, para. 1231.

23

Prosecutor v. Kupresk ic et al., Case No. IT-95-16 , Judgement, 14 Jan. 2000, para . 848; the supremacy of the principles of retribut ion and deterrence has been recognised by most of the Trial Chambers of the ICTY and the ICTR .

24

Prosecutor v. Jean Kambarula, Case No. ICTR-97 -23-S, Judgement and Sentence, 4 Sept. 1998, para . 28; the same definition of the principle of deterrence as one of the objectives of punishment has been adopted in other cases of the ICTR: i.e., Prosecutor v. Jean-PaulAkayesu, Case No . ICTR-96-4, Sentencing Judgement, 2 Oct. 1998, para . 19; Prosecutor v. Alfred Musema, Case No . ICTR-96-13-T, Judgement and Senten ce, 27 Jan . 2000, para . 985 .

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law) but also punitur ne peccatur (he must be punished so that he and others will no longer break the law)." Deterrence is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law. Apart from the fact that the accused should be sufficiently deterred by an appropriate sentence from ever contemplating taking part in such crimes again,26 persons in similar situations in the future should similarly be deterred from resorting to such crimes." Deterrence of high level officials, both military and civilian, in the context of the former Yugoslavia, by appropriate sentences of imprisonment, is a useful measure to return the area to peace . Although long prison sentences are not the ideal, there may be situations which will necessitate sentencing an accused to a long term of imprisonment to ensure continued stability in the area. Punishment of high-ranking political officials and military officers will demonstrate that such officers cannot flout the designs and injunctions of the international community with impunity." Although deterrence may be a fundamental objective of punishment, the importance of this principle should not be overestimated. In the Tadic Appeal the Chamber stated that "[i]n determining the sentences to be imposed on the Appellant, the Trial Chamber took into account , as one of the relevant factors, the principle of deterrence. The Appeals Chamber accept s that this is a consideration that may legitim ately be considered in sentencing. Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal."

D. Rehabilitation Punishment is also expected to fulfil an objective of rehabilitation. This seems to be of great significance in the context of human rights violations, where recon-

25

Prosecutor v. Anto Furundiija, Case No. IT-95-17II , Judgement, 10 Dec. 1998, para . 288.

26

Also called general prevention.

27

Specific prevention.

28

Prosecutor v. Delalic et al., Case No. IT-96-21 , Judgement, 16 Nov. 1998, para . 1234.

29

Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-A his, Judgement in Sentencing Appeal s, 26 Jan . 2000, para. 48.

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struction and reconciliation are paramount. The Security Council resolution creating the Rwanda tribunal expresses the view that prosecutions will contribute to "the process of national reconciliation and to the restoration and maintenance of peace". That punishment must take this goal into account can also be discerned with reference to human rights norms . Article 10, section 3, of the International Covenant on Civil and Political Rights states that "the penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation". The United Nations Human Rights Committee, in its second general comment on Article 7 of the International Covenant on Civil and Political Rights, has stated that "no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner"." Massive human rights abuses often involve massive participation. In Rwanda, for example, it is clear that many people participated in the genocide. Prosecution must endeavor to distinguish between leaders and followers; the lower the offender sits in the hierarchy, the more important rehabilitation will seem as an objective ." It may be difficult or impossible for society to reconcile and rebuild without serious efforts at rehabilitation, within the context of effective action against impunity ." The factor of rehabilitation considers the circumstances of reintegrating the guilty accused into society. This is usually the case when younger, or less-educated members of society are found guilty of offences . It therefore becomes necessary to reintegrate them into society so that they can become useful members of it and enable them to lead normal and productive lives upon their release from imprisonment. The age of the accused , his circumstances, his ability to be rehabilitated and availability of facilities in the confinement facility can, and should , be relevant considerations in this regard." The role of young age as a condition for being reformable is closely linked to the question whether young age should be taken into account as a mitigating circumstance and it will be discussed later in this article .

30

31

General Comment 20 (44) , UN Doc . CCPRIC/2 IRev.1/Add.3, sec . 10. In fact, in some cases before the ICTY against low-ranked perpetrators of crimes (i.e. Delalic et al., Kupreskic et al.) the Trial Chamber recognised rehabilitation as being an objective of sentencing, while in some other cases against high -ranking criminals before the ICTR tKambanda, Akayesu) the Trial Chamber focused on deterrence and retribution as the only objectives of sentencing, not mentioning the goal of rehabilitation.

32

Schabas, supra note 8, pp . 28-29 .

33

Prosecutor v. Delalic et al., Case No. IT-96-21 , Judgement, 16 Nov. 1998, para . 1233.

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While in some cases before the ICTY and the ICTR (Kupreikic ,34 Delalic,35 Kayishema 36) rehabilitation is recognized as an objective of sentencing, the goal of rehabilitation seems not to have influenced other judgments (i.e. Jelisic) . In my view the Trial Chamber in this case, by referring to the Security Council resolutions 808 and 827 (stating that it is the mission of the Tribunal to put an end to the serious violations of international humanitarian law and to contribute to restoring and keeping the peace in the former Yugoslavia) was aware of the importance of the rehabilitative function of the sentence. Provided that the goal of rehabilitation is a relevant objective of sentencing , it still has to be clarified to what degree it influences the punishment. Most of the judgments of the Trial Chambers of the ICTY and the ICTR recognize the supremacy of the principles of retribution and deterrence." The first Erdemovic judgment, however, is more precise, stating that: "Without denying any rehabilitative and amendatory function to the punishment , especially given the age of the accused, his physical or mental condition, the extent of his involvement in the concerted plan (or systematic pattern) which led to the perpetration of a crime against humanity, the Trial Chamber considers at this point in the determination of the sentence, that the concern for the above mentioned function of the punishment must be subordinate to that of an attempt to stigmatize the most serious violations of international humanitarian law and in particular an attempt to preclude their reoccurrence't."

E. ReprobationIDenunciationlStigmatization An important aspect of international sentences is that they should condemn or stigmatize a particular type of behavior before the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators." This need is not necessarily achieved by imposing heavy sentences,

34

Ibid .• para . 848.

35

Ibid., para . 1233.

36

Ibid ., para. 2.

37

38

39

Prosecuto r v. Kupreski c et al., Case No . IT-95-16, Judgement, 14 Jan. 2000, para . 848; Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S , Sentence, 5 Feb. 1999, para 20. Prosecutor v. Draien Erdemovic, Case No. IT-96-22 , Sentencing Judgement, 29 Nov. 1996, para . 66. Ibid., paras 64-65.

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the public aspect of an international trial in itself may go some way to achieving it. The Trial Chamber in Furundiija commented that "it is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution , stigmatisation and deterrence. This is particularly the case of the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world opinion, and this punitive effect must be borne in mind when assessing the suitable length of sentence"."

F. Thwarting impunity Another relevant sentencing purpose is to show the people of the world in general that there is no impunity for certain types of crimes . This should be done in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust in and respect for the developing system of international criminal justice." Resolution 955 of 8 November 1994, which was adopted by the Security Council in this connection, clearly indicates that the purpose for the establishment of the ICTR was to prosecute and punish the perpetrators of the atrocities in Rwanda in such a way as to put an end to impunity and thereby to promote national reconciliation and the restoration of peace. In Erdemovic the Trial Chamber held that "thwarting impunity even to a limited extent would contribute to appeasement and give thechance to the people who were sorely afflicted to mourn those among them who had been unjustly killed".42 The international community by showing that it is no longer ready to tolerate serious violations of international humanitarian law and human rights combats again st impunity, and in the same way dissuades society's members from committing offences .

40

Prosecutor v. Ant o Furundiija, Case No . IT-95-17/l, Judgement, 10 Dec. 1998, para. 290 .

41

Prosecutor v. Kupreskic et al., Case No. IT-95-16, Judgement, 14 Jan. 2000, para . 848.

42

Prosecutor v. Drai en Erdemovic, Case No. IT-96-22 , Sentencing Judgement, 29 Nov. 1996. para . 65.

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G. Protection of society The protection of society from the guilty accused is an another factor in the determination of appropriate sentence. The policy of protection depend s upon the nature of the offence and the conduct of the accused . The protection of society often involves long sentences of imprisonment to protect society from the hostile, predatory conduct of the guilty accused. This factor is relevant where the guilty accused is regarded as dangerou s to society." In my view, the principle of protection of society as one of the objectives in sentencing should not be given predomin ant importance. As many post-Second World War and recent ICTY and ICTR judgments show," the perpetrators of the most heinous and violent war crimes acted illegally only in times and under the circum stances of war, while behaving perfectly legal and social before and after these events. Thus, I think that in general, the convicted cannot be considered to be socially dangerou s; in times of peace there is less need to protect society from the guilty. Taking into consideration this argument, I conclude that also the importance of the objective of specific prevention should not be overestimated.

III. SHOULD THERE BE UNI FORMI TY IN SE NTEN CING ?

A. General remarks While international humanit arian law and criminal law treaties provide for individual criminal responsibility for certain violations, practically no guidanc e can be drawn from them with regard to the modes of punishment. On the other hand, international human rights law sets certain limitation s on the application of the most severe forms of punishment, in particular with regard to the death penalty and through the prohibitions against torture as well as cruel, inhuman and degrading treatment or punishm ent. The Statutes of earlier and existing international

43 44

Prosecutor v. Delalic et al., Case No.IT-96-21 , Judgement, 16 Nov. 1998, para. 1232.

See Hass/Priebke, Tribunal e Penale di Roma , 22 July 1997, p. 28; Prosecutor v. Kupresk ic et al., Case No. IT-95-16, Judgement, 14 Jan. 2000. para. 372; Prosecutor v. Go ran Jelisic, Case No. IT-95-1O, Judgement, 14 Dec. 1999, para . 124; Prosecutor v. Kayishema and Ruzindana, Case No.ICTR-95-1, Sentence, 2 1 May 1999, paras 11-12; Prosecutor v. Drai en Erdemovic, Case No. 1T-96-22, Sentencing Judgement , 29 Nov. 1996, para. 16.

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tribunals contain some provisions on the application of penalties, but do not provide for detailed sentencing principles.v The Nuremberg and Tokyo Tribunals had what may be termed as an extremely wide degree of discretion in application of penalties. Their Statutes provided for the death penalty, life imprisonment or other punishments determined by them to be "just" .46 The Statutes of the two ad hoc Tribunals contain brief provisions dealing with sentencing, proposing essentially that sentences be limited to imprisonment and that they be established taking into account the "general practice" of the criminal courts in the former Yugoslavia or Rwanda, as the case may be. Furthermore, the Statutes state that in imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.'? The Rules of Procedure and Evidence, adopted by the judges in accordance with the Statutes , specify some of the aggravating and mitigating factors that may be taken into account ." Clearly, the Judges of the Trial Chamber, having very little guidance, are still left with a wide degree of discretion in establishing sentences. From this results the fact that identical or similar cases might be sentenced in a very different way. Furthermore, the increasing individualisation of penalties contributes to this effect." The question arises, whether, with special regard to the mentioned objectives of sentencing , such nonuniformity is not prejudicial. How should others be prevented from committing similar violations if one can hope that a judge may pronounce a much more lenient sentence. Also, it contradicts the principle of retribution, if the same offences are punished in a very different way. Besides , it should not be ignored , that inter-

45

See V. MorrislM. P. Scharf, Rwanda, p. 584 .

46

Triffterer, Commentary on the Rome Statute ofthe International Criminal Court, p. 987 .

47

48

49

Art. 24 of the ICTY Statute ; Art. 23 of the ICTR Statute. Similarly, see Art . 78, section I of the Rome Statute of the International Criminal Court (Rome Statut e). Art. 101 (B) of the Rule s of Procedure and Evidence: "In determining the sentence , the Trial Chamber shall take into accoun t the factors mentioned in Article 24, paragraph 2, of the Statute [Article 23, para. 2 of the ICTR Statute] , as well as such factors as: (i) any aggravat ing circumstances; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia [Rwanda] ; (iv) omissis". E.g., Prosecutor v. Jean Kambanda, Case No. ICTR 97-23 -S, Judgement and Sentence, 4 Sept. 1998, para. 29 . Individualisation of the punishment simply means taking into account the individual or personal circumstan ces (i.e, age, health condit ions, family conditions) of the convicted person in order to fix the length of the punishment.

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national judicial decisions, as well as national judicial decisions constitute a source of intemationallaw. 50 In the case of a widespread non-uniformity of the sentences the Trial Chamber can not draw any guidance from the precedent decisions. For these reasons I suggest that a certain degree of uniformity of sentencing in intemationallaw should be aspired . I will now try to examine how this goal could be achieved.

B. Uniformity in relation to national sentences

Article 24 (I) of the Statute and Rule WI (B)(iii) of the Rules of Procedure and Evidence of the ICTY direct the Trial Chamber to have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia." It would appear that these provisions aim at achieving uniformity of the length of sentences, but in practice uniformity cannot be achieved in this way. An initial difficulty arises in identifying what constitutes "general practice."As in most countries, there are few useful precedents in cases similar to those likely to be heard by the tribunals. There have only been two significant trials for genocide in Yugoslavia.? This number is too small to allow for meaningful inferences regarding sentencing practices. In the case of Rwanda, even had the offences existed, in name at least, it is unlikely that the regime of President Habyarimana would have tolerated prosecutions for genocide and similar crimes .53 On the other hand, several Trial Chambers of the ICTY and the ICTR have stated that reference to the sentencing practice can be used for guidance, but is not binding." Yet the reference in the

50

51

52 53 54

See Art. 38 of the Statute of the ICJ. Even though the mentioned judicial decisions constitute a source of law, they are not necessarily legally binding. For the judgements of the Appeals Chambers it is questionable whether they are binding or not. See also Prosecutor v. Kupreskic et al., Case No. IT-95-16, Judgement, 14 Jan . 2000 , paras 537-542. In the same way Art. 23, para . 1 of the ICTR Statute states that: "In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda".

Milhailovic et al. in 1946 and Artukovic in 1986. Schabas, supra note 8, p. 12.

Prosecutor v. Draien Erdemovic, Case No. IT-96-22, Sentencing Judgement, 29 Nov. 1996, para. 472 bis; Prosecutor v. Delalic et al., Case No . IT-96-21 , Judgement, 16 Nov. 1998, para. 1200; Prosecutorv. Jean Kambanda, Case No. ICTR-97-23-S, Judgement, 4 Sept. 1998, para. 23.

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Statutes to general practice in the appropriate national courts imposes a degree of schizophrenia on the appellate judges. In the administration of "international" jus tice, they may find themselves imposing different sentences as a result solely of the place where the crime was committed.55 A similar approach with regard to reference to the national law in order to determine the length of the punishment has been worked out in the Draft Statute for an International Criminal Court.56 Article 47 of this Draft Statute indicates the relevant factors in determining the sentence. The ICC should look to the laws of: (I) the State of which the convicted person is a national ; (2) the State where the crimes were committed; and (3) the State which had custody of and jurisdiction over the accused. In order to realize this project, a basic structure of sentencing procedures reflecting all the major legal systems of the world is needed to avoid disparate punishment and to further establish a solid framework for international criminal law.>' However, as such a basic structure of sentencing procedures does not exist, the suggestion of the Draft Statute has not been taken into consideration for the formulation of Article 78 of the Rome Statute, dealing with the determination of the sentence. A different way of establishing sentencing guidelines with regard to national legislation is the so-called "Analytical Approach" described by Daniel B. Pickard ." The suggested guidelines are based upon a global representative study, which examines the domestic law of twelve different legal systems.t" The crimes taken into consideration are genocide, crimes against humanity and war crimes. Pickard's calculated guidelines are the arithmetic means? of sentences that would be

55 56

57

58 59

60

Schabas , supra note 8, p. 3. Report of the International Law Commission on the Work of its Forty-sixth Session , Art. 47, UN Doc. N49/355 (1994) . Pickard, 'Proposed Sentencing Guidelines for the International Criminal Court ' , 1997 Loyola of Los Angeles International and Comparative Law Journal, November 1997.

Ibid. The permanent members of the United Nations Security Council, one nation from Western Europe , two nations from Asia and one nation each from South America , Eastern Europe, Africa and the Middle East. A mean, or arithmetic average , is a statistical descript ion of a set of scores. Simply put, the mean is the sum of all the scores divided by the total number of scores. In this study, the mean minimum sentence is found by adding all the minimum sentences, and then by dividing by the total number of minimum sentences . The same process is used for the maximum sentences.

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imposed in the legal system listed above. The minimum and maximum ranges were averaged to provide a model sentencing guideline for an international criminal tribunal.

c. Uniformity of sentences within the international tribunals In this section I will briefly examine whether there should be uniformity in sentencing between the different international criminal tribunals (earlier and existing international tribunals - mentioning also the ICC) and whether there should be uniformity within the decisions of an international criminal tribunal. The Nuremberg and Tokyo tribunals' sentencing guidelines consisted only of those few, very vague words in Article 27: "as shall be deemed by it to be just," which meant that the Nuremberg and Tokyo judges had nearly unfettered sentencing discretion. In accordance with this discretion, the Nuremberg judges deemed "just" 19 hangings out of 47 convictions for international crimes against humanity. Nuremberg, thus, offers little sentencing guidance for international criminal courts. Moreover, it demonstrates the danger resulting from inattention to sentencing guidelines." The Tokyo Trials are notorious for the discriminatory and arbitrary manner in which sentences were imposed. Thus, the Nuremberg and Tokyo Trials not only failed to create a consistent precedent, but were completely incongruous.v Uniformity in sentencing could be achieved within the existing international tribunals. Their Statutes provide some clues from which the conclusion can be drawn that they aspire to a certain kind of standardization of sentences. Article 21, paragraph I, of the Statute of the ICTY states that: "All persons shall be equal before the International Tribunal" ; Article 20, paragraph 1,states this for the Rwanda Statute. This, implicitly, requires a certain degree of uniformity in sentencing within the single ad hoc tribunals, because equality before the Tribunal also means that, with regard to the length of the punishment, identical facts should not be evaluated in a different way. Another means aimed at uniformity in sentencing provided by

61

62

Pickard, supra note 57, at p. 347 .

Interpretation and application of the sentence provisions in Article 24 of the Statute of the IC7Y - an interim report produ ced for feedback and commentary at Duke University School of Law, 26 Feb. 1995, p. 45.

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the Statutes is the Appeals Chamber. The existence of an appeal chamber.v some thing which was absent at Nuremberg and Tokyo and in the successor trials, will presumably permit some standardization between the different Trial Chambers of the Tribunals. Furthermore, although the two ad hoc Tribunals are autonomous, the Appeals Chambers of the respective Tribunals are composed of the same members, which should promote uniformity between the two organizations. For Schabas, imposing a different sentence on individuals merely because of the place where the crime was committed is difficult to reconcile with the notion of equality before the law.64 Article 77 of the Rome Statute, dealing with the applicable penalties, also builds on the principle of equality of justice through a uniform penalties regime for all persons convicted by the ICC. Thus there is no reference to national law and the choice of penalties will be made irrespective of, for example, the nationality of the convicted person or the place where the crime was committed.

IV. STATUTORY RANGE OF PUNISHMENT OR FREE DISCRETION? This section deals with the question whether in international criminal law judges, for the purpose of sentencing, should have free discretion or whether there should be a statutory range of punishment, which obliges the judges to impose the punishment within minimum and maximum limits. As already mentioned, the Trial Chambers of the ICTY and the ICTR possess a wide discretion, evidenced by Rule 101 authorizing imprisonment for a term up to, and including, the remainder of the defendant's life. The Statutes do not rank the various crimes falling under the jurisdiction of the Tribunal and, thereby, the sentence to be handed down. In theory, the maximum sentences are the same for all the crimes, namely, a term of life imprisonment. Some of the Judges of the ICTY confirm this opinion by stating that there is no legal principle that, all things being equal, there should be made any differences in sentencing the crimes falling under the jurisdiction of the Tribunal. In concrete they argued that there should be no difference in sentencing between a war crime and a crime against humanity.v' In contrast to this opinion,

63

TheStatute of the International Criminal Court alsoprovides foranAppeals Chamber (Arts. 81-83).

64

65

Schabas, supra note8, p. 14. SeeSeparate Opinion of Judge Shahabuddeen - in general corresponding to the majority, in

Prosecutor v. Dusko Tadic, Case No. IT-94-I-A andIT-94-I-A his , Judgement inSentencing

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Judge Cassese suggests that - ceteris paribus - a crime against humanity is of greater gravity than a war crime, because the mental element of the first not only includes the mens rea concerning the killing of the victim, but also knowledge of the existence of the widespread or systematic practice.w Also in the Erdemovic judgment on appeal, a majority of the Appeals Chamber Judges held that a crime against humanity , all else being equal, is a more serious offence than an ordinary war crime and, therefore it "should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime't.? Starting from this point, and adding that some ICTR judgments state that genocide constitutes the "crime of crimes", and the Trial Chamber will decide an appropriate senten ce for this crime,68 it tends to suggest that the crimes within the jurisdiction of the two ad hoc Tribunals can be ranked as follows: (a) genocide; (b) crimes against humanity; (c) war crimes/grave breaches of the 1949 Geneva Conventions. This means that by accepting that one crime is of greater gravity than another crime, in relation to the more serious crime there should be applied a heavier punishment. One possible way to realize such a differentiation is by placing different minimum and maximum limits of punishment for each single offence; the graver the offence is, the higher are the limits. The Trial Chamber should have the discretion to impose the sentence within these limits, taking into account all the mitigating and aggravating circumstances of the concrete case.s? This means that the Trial Chamber's discretionary power would be greatly reduced, as it could not impose a longer punishment than the maximum or a shorter punishment than the

Appeals, 26 Jan. 2000, pp. 35-48; Separate and Dissenting Opinion of Judge Li, para. 20, in Prosecutor v. Draien Erdemovic, Case No. IT-96-22-A, Judgement , 7 Oct. 1997. 66

61

68

69

Separate Opinion of Judge Cassese, in Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-I-A bis, Judgement in Sentencing Appeals, 26 Jan. 2000, pp. 50-56. Prosecutor v. Drai en Erdemovic, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 20 et seq. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4, Judgement and Sentence, 2 Oct. 1998, para. 8; Prosecutor v. Omar Serushag o, Case No. ICTR-98-39, Sentence,S Feb. 1999, para. 15; in Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para 14, the Trial Chamber states that " .. . despite the gravity of the violations of Article 3 common to the Geneva Conventions and of the Additional Protocol II thereto, they are considered as lesser crimes than genocide or crimes against humanity".

This kind of solution reflects the law of sentencing of most civil law countries (see, for example, Articles 132-133 of the Italian Penal Code, and Section 46 of the German Criminal Code).

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minimum limit, regardl ess of possible special aggr avating or mitigating circumstances which may ju stify a long er or shorter period of impri sonm ent. In this article, no preference is given to the one or the other system, but I would like to add some remarks on both. In international criminal law the judgments are not made by a single trial judge,70 but by a Trial Chamber composed of three judges or by the Appeals Chamber composed of five judges. Thu s, the exercise of the discretion of the Chambers is balanced, which helps to prevent any kind of abuse of this power. The Appeals Chamber, eventually, by being able to examine the exerci se of the Trial Chambers' discretion, fulfil s the same functi on. Furthermore, the judges working for international criminal tribunals are all very experienced and may be better qualified in imposing a punishment by taking into account all the possible circumstances than a law-making body fixing some abstract limits on the judges discretion. Besides, it is impo ssible to foresee all the concrete situations that judges may be confronted with in practice. All these reason s sugge st a broad flexibility for the judges in impo sing puni shment. On the other hand , it is in the interest of legal certainty that abstract norm s establish a rang e of punishment for each single crime. Furtherm ore , the Statute of the International Criminal Court makes a first step towards a range of impri sonment by providin g a maximum term of imprisonment. Article 77 of the Rome Statute hold s that the Court may impo se life imprisonm ent?' or impriso nment for a speci fied numb er of years, which may not exceed a maximum of 30 years. Thi s article, without menti oning any ranking of the single offences , fixes a genera l maximum length of imprisonment for all the offences, in the case that j udges decide not to impose life imprisonment. Article 77 does not pro vide any minimum of punishment. But from the wording of section 1 (a): "Imprisonment for a specified number of years" , one co uld understand that one year is the minimum length of impri sonment. Thu s, the Rom e Statute chooses a solution in betw een the two systems laid out before . It provides a limited range of imprisonment, while, at the same time, it preserves a wide degree of discretion for the judges.

70

71

The Austrian, Swiss and German Crimin al Procedural Code s speak about' Einzelrichter' , the Italian Codice di Procedura Penale uses the expression 'giudice unico' , 'juge seul' is the French express ion used by the Canadian Code. When justified by the extreme gravity of the crime and the individual circumstances of the convic ted person.

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V. SHOULD THE VICTIMS' VIEW BE TAKEN INTO ACCOUNT FOR SENTENCING? Giving the victim the opportunity to inform the judge of his or her subjective perception and expressions of the emotional, physical or economic harm sustained as a result of the crime (victim impact statements, hereafter "VIS") may have some impact on sentencing. Therefore, the question whether victims should be provided with a voice is very controversial. First of all I would like to examine the law of the two ad hoc Tribunals with regard to this issue. According to the Statutes" a main factor that has to be taken into account for the determination of the punishment is the gravity of the offence. The gravity of the offence is not an objective element, but is determined by the effect on the victim." The seriousness of the crime is thus measured , among others, on the basis of a subjective statement made by the victim to inform the judge of any physical or psychological harm, or any loss or damage to property, which is nothing else than a victim impact statement. So the conclusion can be drawn that there is a legal basis in the Statutes of the ICTY and the ICTR for the consideration of the victims' view for the purpose of sentencing. Next, I would like to point out some arguments against and those in favour of such a consideration. According to Ashworth, the movement to incorporate victim perspectives has sometimes coincided with the movement toward more severe penalties. He further claims that victims would use the VIS as an opportunity to subject offenders to unfounded accusations." Edna Erez replied to this argument by stating that such a concern did not materialize." She showed that studies conducted in the United States of America and in Australia comparing sentencing outcomes of cases with and without VIS suggest that sentence severity has not increased following the passage of VIS legislation. For instance , judges and prosecutors recognized that the information available from the VIS shed new light in a

72 73

74

75

Article 24, para . 2 of the TCTY Statute; Article 23, para . 2 of the TCTRStatute.

Prosecutor v. Delalic et al., Case No. TT-96-21, Judgement, 16 Nov. 1998, para. 1226: Gravity is determined in personam and is not one of a universal effect. Ashworth, A., ' Victim Impact Statements and Sentencing', (1993) Criminal Law Review, 498-509. Edna Erez, LL.B ., Ph.D., 'Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice ' , Criminal Law Review, 1999, pp. 545556 .

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few cases, and assisted in imposing a more commensurate sentence. Although they stated that VIS were sometimes redundant or the harm done was inferentially available from other documents in the file, they also described in detail a few cases they tried in which the content of VIS caused them to rethink the penalty they had in mind prior to reading the VIS. In this minority of cases in which VIS made a difference, the data revealed that the sentence was as likely to be more lenient as it was to be more severe than initially thought. So, some changes in outcomes do occur, but they are hidden as in the aggregate they offset each other. Without victim input , sentences might well have been too high or too low. Thus, Edna Erez concludes that VIS make an important contribution to proportionality rather than to severity of sentencing and in this way they improve the quality of justice." Another concern expressed by the opponents of VIS theories is the substitution of the victim's subjective approach for the objective one and the subsequent threats to sentence uniformity." Pointing to the law I absolutely share this concern , but in practice also this apprehension may not materialize. In another study" judges and prosecutors (and to a limited extent defence attorneys) reported that they have become more informed about the way in which crime victims experience harm and react to victimization. But the same study confirmed the result of the one mentioned before, in the sense that VIS have had almost no impact on court outcomes . I suggest that only a substantial practical difference in sentencing caused by the consideration of the victims' view would justify such a concern. In my opinion taking into consideration the victims ' view in practice causes several problems. So there is the danger that defendants would challenge the content of VIS by subject ing victims to unpleasant cross-examination on their statements. Moreover it was opposed that victim input might produce unacceptable pressure on the court in high profile cases." And, lastly, but equally important, it should not be forgotten that for the trial victim participation at the sentencing stage will lead to delays and additional expenses . Taken that the victim input to a certain

76 77

78

79

Ibid. Victorian Sentencing Committee 1988. Sentencing: Report of the Committee, Attomey-General's Department, Melbourne. Conducted by Edna Erez and Lind a Rogers. described in: Erez/Rogers, 'Victim Impact Statements and Sentencing Outcomes and Proces ses'. British Journal of Criminal Law, Vol. 39, No.2 Spring 1999. Rube l, H. C. ' Victim Participation in Sentencing Proceedings' . (1986) Criminal Law Quarterly 28. pp. 226-250 .

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degree may improve the quality of justice, the question still arises, whether, in the light of these practical problems, the price of this improvement is not too high.

VI. SOME CIRCUMSTANCES INFLUENCING SENTENCING

A. General remarks In this chapter I would like to point out some circumstances that may be taken into consideration for the determination of punishment and examine how far they influence sentencing in international criminal law. At Nuremberg, the London Charter specifically allowed for mitigating but not for aggravating circumstances to be taken into account. 80 However, there was no set standard by which to apply such factors and that was the reason for inconsistencies in applying mitigating circumstances. The Tokyo Trials are notorious for the discriminatory and arbitrary manner in which sentences were imposed and mitigating circumstances were rarely taken into account during the Tokyo Trials." Thus, the Nuremberg and Tokyo Trials do not establish international legal precedent for determining how mitigating and aggravating circumstances should be applied . More guidance can be drawn from the jurisprudence of the ICTY and the ICTR as their Statutes and Rules give some indications on the application of mitigating and aggravating factors. Article 24, paragraph 2, of the Statute of the ICTY and Article 23, paragraph 2, of the Statute of the ICTR state that in imposing sentence , the Trial Chamber "should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person"." The Rules recall that the Trial Chamber shall take into account the gravity of the offence and the individual circumstances of the offender, as well as such factors that may amount to aggravating or mitigating circumstances.

80 81

82

Charter of the International Military Tribunal, 1945, Art. 29.

Interpretation and Application ofthe Sentence Provisions in Article 24 of the Statute of the ICIT - an interim report produced for feedback and commentary at Duke University School of Law; supra note 62, p. 45 . Article 78, para . I of the Rome Statute is identical to the mentioned Articles of the ICTY and the ICTR Statutes.

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B. The manner of perpetration of the crime The manner of perpetration of the crime committed, as a measure of the gravity of the offence, also influences sentencing. A qualitative criterion for the qualification of the way of perpetration of a crime is the level of brutalit y used by the offender in carrying out the crime.P In the second Erdemovic judgment the Trial Chamber stated that it has taken into account "the circumstances of the killings, looking in particular at the degree of suffering to which the victims of the massacre were subjected before and during the killings, the mean s used by the accused to kill and his attitude at the tirne";" Thus, the gravity of the offences is determined by the effect on the victim and is not one of a universal effect." The particular cruelty in perpetration of the crime was considered as a significant aggravating circumstance in numerous cases of the ICTY and the ICTR. 86 In concret e, in the Ielisic case, the Trial Chamber pointed out "the repugnant , bestial and sadistic nature of Goran Jelisic's behavior. His cold-blooded commission of murder and mistreatment of people attest to a profound contempt for mankind and

83

84

In some common law countries having acted cruelly towards persons constitutes an explicit aggravating circumstance, i.e., look at Article 6 1, sectio n I (4) of the Italian Codi ce Penal e, Article 46, sectio n 2 of the German StGB. Prosecut or v. Drai en Erdemovic, Case No. IT-96-22, Sente ncing Judgement, 5 Mar. 1998,

para. 20. 8'

86

In Prosecut or v. Kayishema and Ruzindana, Case No. ICTR-95-1, Sentence, 2 1 May 1999, at para. 16, the Trial Chamber stated that "the harm suffered by victims and their families represents an aggravating circumstance, and this Chamb er recalls the irreparable harm that Kayishema inflicted on his victims and their families". Prosecutor v. Dusko Tadic, Case No. IT-94- 1, Sentencing Judgement, 14 July 1997, paras II , 16, 20, 32, 56; Prosecutor v. Drai en Erdemo vic, Case No. IT-96-22, Sentencing Judgement, 5 Mar. 1998, para. 15; Prosecut or v. Anto Furundtija, Case No. IT-95-17/1, Judgement, 10 Dec. 1998. paras 282-283; Prosecu tor v. Delal ic et al., Case No. IT-96-21, Judgement, 16 Nov. 1998, paras 1260-1267 and 1272-1276; Prosecutor v. Go ran Jelisic, Case No. IT-9510, Jud gem ent, 14 Dec. 1999, paras 121, 126, 130, 131; Prosecut or v. Kayishema and Ru zindan a, Case No. ICTR-95-1, Sentence, 2 1 May 1999, paras 16, 18. On the other hand,

Nuremberg war crimes tribunals have taken into account efforts by an accused to reduce the suffering of victims as a mitigating circ umstance, i.e., for Waldemar Von Radetzky, in the 'Einsatzt ruppe n Case ' (USA v. Ohlendorfet al. (1948) 4 T.W.C. 1,4 L.R.T.W.C. 470 , 15 ILR 656, at p. 578), or Albert Speer in the case Goering et al. v. France et al., (Trial of the Major War Criminal s before the International Military Tribunal, Vol. XXIII, Nuremberg, 1948, at p. 597).

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the right to life."? Moreover, the Trial Chamber con sidered that, "even if it had been proved that Goran Jeli sic acted on the orders of a superior, the relentless character and cruelty of his acts would preclude his benefitin g from this fact as a mitigating circumstance"." In another case the Trial Chamber confirmed that the cruelty of the attack weighs heavily in any consideration of the appropriate sentence." The Icvel of brutality not only depends on the suffering inflicted on the victim s, but also on the heinous means used by the defendants in order to carry out the crime." Another criterion related to the gravity of the crime is the number of victims . It is obvious that the number of victim s is a gauge for the magnitude of the crime. Thus, if a high number of people suffered harm from the crime, this may be taken into consideration for senten cing as an aggravating circum stance. In this sense, in the Kambanda case the Trial Chamber stated that "the magnitude of the crimes involving the killing of an estimated 500 ,000 civilians in Rwanda, in a short span of 100 days con stitutes an aggravating fact" .?' In the Erdemovic case the fact that the defendant, within onl y one day, killed up to a hundr ed people aggravated the punishment in accordance with Article 24, paragraph 2, of the Statute of the ICTY.92 Of course it is in the discretion of the judges to consider what number of victim s justifies the application of the circumstance. In order to give some guidance in this sense, it is worth looking at the international and national jurisprudence.v From

87 88 89

90

91

92 93

Prosecutor v. Goran Jelisic, Case No. IT-95-1O. Judgement. 14 Dec. 1999. para. 130. Ibid.• para. 126. Prosecutor v. Dusko Tadic, Case No. IT-94-1. Sentencing Judgement. 14 July 1997. para. 32; in this case. the use of whips, iron bars and other instruments to inflict grea t suffering on the victim was of particular coneem. as well as his terrorisation and suffocation of victims through the use of a noose. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1. Sentence. 2 1 May 1999. para. 18; Prosecutor v. Anto Furundiija, Case No. IT-95-17/1. Judgement. 10 Dec. 1998. para. 183. Prosecutor v. Jean Kambanda , Case No. ICTR-97-23-S. Judgement and Sentence. 4 Sept . 1998. para. 42. Prosecutor v. Drai en Erdemovic, Senten cing Judgement. 5 Mar. 1998. para. 15. 500 .000 victim s in Prosecutor v. Jean Kambanda , Case No. ICTR -97-23-S. Judgement and Sentence. 4 Sept. 1998. 100 in Prosecutor v. Draien Erdemovic, Sentencing Judgement . 29 Nov. 1996, 33 in Prosecutor v. Omar Serushago, Case No. ICTR -98-39. Sentence. 5 Feb. 1999, para. 29; Jorgic: 29 victims (Oberlandesgericht Dusseldorf, IV-26/96. 2 StE 8/96. 5. Jaenner 1998. p. 169); Djadji c: 14 victims (Bayerisches Oberstes Landesgei cht, 3 St 20/96. 2 StE 10/96. p. 131).

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the wording of the judgments cited before one could understand that the period of time within which the crimes were committed is relevant for the determination of the magnitude of the crime: the shorter the period is, the more serious is the offence. Personally, I don't agree with this concept, as I cannot really identify any relevant difference, neither in the objective facts nor in the mens rea of the offender, justifying such an interpretation.

C. The guilty plea

Although there is no suggestion of this in the Statutes of the ad hoc Tribunals, the Rules specifically provide that "the substantial cooperation with the Prosecutor by the convicted person before or after conviction" shall be a mitigating factor in sentencing." According to Virginia Morris and Michael P. Scharf the reduction of sentence based on cooperation with the Prosecutor represents a compromise between the judges who favored the United States proposal for granting full or limited testimonial immunity in exchange for meaningful cooperation with the Prosecutor, and those who opposed conferring any kind of immunity on the perpetrators of the crimes referred to in the Statute as a matter of international law and policy." A guilty plea is such a form of cooperation with the prosecutor that ought to be considered as a mitigating factor. It spares the prosecution considerable effort and expense, and may also avoid requiring victims to undergo the pain and embarrassment of public testimony. It is also, of course, a sign of remorse that is clearly germane to sentencing." By recognizing the plea of guilty as a mitigating circumstance the International Tribunals demonstrate that those who have the honesty to confess are treated fairly, which should encourage other suspects or unknown perpetrators to come forward. The weight of the guilty plea, of remorse and cooperation with the Prosecutor on the process of determination of the punishment is evident in the Erdemovic

94

Rule 101 (B)(ii) .

95

Virginia Morri s, Michael P. Scharf, An Insider 's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995) .

96

Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998, para, 52: "Both Counsel for Prosecution and Defence have urged the Chamber to interpret Jean Kambanda's guilty pleas as a signal of his remorse, repentance and acceptance of responsibility for his actions".

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case," where the defendant, after being found guilty for the killings of numerous people as a crime against humanity, was sentenced to "only" 10 years of imprisonment. 98 After the Appeals Chamber quashed the proceedings and ordered a rehearing, a second judgement, in which Erdemovic was found guilty of the same facts, but qualified as a war crime, reduced the sentence to five years of imprisonment." In the Jelisic case the Trial Chamber was not convinced that the remorse which Goran Jelisic allegedly expressed was sincere. It therefore accorded only relative weight to his plea. However, there are other reasons besides the plea of guilty why Jelisic was sentenced to 40 years of imprisonment. 100 On the other hand, in determining how far a guilty plea should influence sentencing, account should be taken of the degree of involvement of the accused . Recognition of guilty pleas as a mitigating factor in sentencing opens the door to "plea bargaining". This practice, which is well known in common law courts, enables the defendant and the prosecutor to negotiate the sentence in return for a plea of guilt. The prosecutor will frequently drop or reduce some of the counts in exchange for a plea. The agreement between the prosecutor and the defendant, however, does not formally bind the court, although judges are generally respectful of such practices .

D. The role of the age of the defendant Age is among the classic "personal circumstances" to be taken into account for the determination of punishment. A defendant's young age may mitigate the punishment. In fact some judgments of the ICTY and the ICTR took the young age of the accused into consideration as a mitigating circumstance.'?' Some of them, in this

97

98 99

There were other mitigating circumstances mentioned, such as personal circumstances and duress . Prosecutor v. Draien Erdemovic, Case No. IT-96-22 , Sentencing Judgement, 29 Nov. 1996. Prosecutor v. Draien Erdemovic, Case No. IT-96-22, Senten cing Judgement, 5 Mar. 1998, para . 20.

100

Prosecutor v. Goran Jelisi c, Case No . IT-95-1O, Judgement, 14 Dec. 1999, para. 41.

101

Prosecutor v. Delalic et al., Case No . IT-96-2 1, Judgement, 16 Nov. 1998, para. 1238; Prosecutor v. Anto Furundiija, Case No. IT-95-17II , Judgement, 10 Dec. 1998, para . 284; Prosecutor v. Goran Jelisic, Case No . IT-95-1O, Judgement, 14 Dec. 1999, para . 124; Prosecutor v. Draien Erdemovic, Case No. IT-96-22, Sentencing Judgement, 29 Nov. 1996, para . III ; Prosecutor v. Draien Erdem ovic, Case No . IT-96-22, Sentencing Judgement, 5 Mar. 1998,

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connection, refer to rehabilitation of the convicted as an objective of sentencing. The Trial Chamber in the Erdemovic judgment pointed out that the convicted "is reformable and should be given a second chance to start his life afresh upon release, whilst still young enough to do SO".102The Serushago judgment states that "the fact that Omar Seru shago is only thirty-seven years old ... would suggest possible rehabilitation't.l'" For the purpose of rehabilitation, not only has the age of the defendant at the time of the events to be considered (tempus delicti commissi), but also the age at the moment the judgment is issued. This becomes evident in the case where these two date s differ a lot and the convicted has not spent this time, or part of it, in detention. Related to youth , and therefore also a mitigating factor, is the fact that young people are often inexperienced, naive and more fragile than adults and consequently much easier to influence by their superiors.I'" Experience shows that , especially in times of war, young people or even children are often manipulated into serving as soldiers. In this connection, a question as to the responsibility of the juvenile perpetrator of the crime arises. While the Statutes and the Rules of the two ad hoc Tribunal s do not contain any provision on this topic , Article 26 of the Statute of the ICC states that "[tlhe Court shall have no juri sdiction over any person who was under the age of 18 at the time of the alleged commission of a crime". In this case the age of the convicted person at the time of the judgement is irrelevant. Between the juri sprudence of the ICTY and the ICTR there is a large gap in relation to the application of age as a mitigating circum stance. The Trial Chambers of the ICTY considered the ages of 19 and 23 years at the time of the events as "relative youth ", 105but ignored Mirjan Kupreski c's age (30 years) for the purpo se of mitigation . On the other hand , the ICTR Trial Chamber in the Serushago case acknowledged the defendant's age - ("only thirty-seven years"I06) - as a mitigat ing circumstance. In my opinion it would be useful to strive for a certain degree of

para. 16; Prosecutor v. Omar Serushago, Case No. ICTR-98 -39, Senten ce, 5 Feb. 1999, para. 39. 102

Prosecutor v. Draien Erdemovic, Case No. IT-96-22, Sentencing Judgem ent, 5 Mar. 1998, para. 16.

103

Prosecutor v. Omar Serushago, Case No. ICTR-98-39, Sentence, 5 Feb. 1999, para. 39.

104

This finds confirmati on in the Delalic Judgement , para 1283.

105

106

Prosecutor v. Delalic et aI., Case No. IT-96-21, Judgement, 16 Nov. 1998, para. 1283; Landzo was 19, Erdemovic, Jelisic and Furund zija were 23 years old. Prosecutor v. Omar Serushago , Case No. ICTR-98-39 , Sentence, 5 Feb. 1999, para. 39.

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uni formity in the application of this circumstance in order to fulfil its purpose. Because the special features of a young person, menti oned before, are not really taken into consideration if the circumstance is appli ed also for adults. A person of 37 years of age , in general, has a more developed and stable per sonality. Furthermore , such a person is hardly reformable and it is very hard for him to start his life afre sh after having served a long-term imprisonment. Thi s appli es even more for Rwanda, where the average age of a man is only 61, compared to 71 107 years in Bosnia and Herzegovina. Related to the discussion abov e is the question whether old age should influence sentencing. There are no precedents on this case before the ICTY and the ICTR. And the Nuremberg judgments, as already mentioned, are inconsistent in the application of this mitigating circumstance and therefore they can hardly be used as guidance. So, for example in the " Krupp Case" , where several offenders were elderly, the Court expressed concern about the con sequences of a prison sentence, but took no speci fic act ion . According to United States prosecutor Telford Taylor , Nuremberg defendant Von Neurath, who se sentence was set at 15 years, " undoubtedly benefited by his age" .108 In another case Fran z Schlegelberger, a German jurist in his seventies, was sentenced to life imprisonment. P? Thus, there are very few judgments providing guidance for the appli cation of this mitigating circumstance. The Italian Tribunale Militare di Roma in 1997 in ajudgment against two German official s, both in their eighties , involved in a massacre in 1944 stated that "the Trial Chamber takes into account the advanced age of the two accused, determining the ir personal cond ition of life, in ord er to conside r that the offenders' delinquent capabilities are dim inished".110 As old age is very often related to infirmity and ill health, which are commonly recogni zed as mitigating factors, old age is excluded as an independent individual circumstanc e. Neverthele ss, in this connection the que stion ari ses whether the long term impri sonment of elderly person s is equivalent to death penalty? Isn 't the convict ion of an old person sufficie nt, provided that he doe s not con stitute a danger to his environment? Can 't the puni shment be waived, and , is a mere conviction

107

'Die Staaten der Erde', Der Spiegel, Weltalmana ch 2000. Taylor, The Anatomy ofthe Nuremberg Trials. A Personal Memoir, New York: Knopf, 1992, p. 599.

lOS Telford

109

United States of America v. Alstoetter et al. (Krupp Trial), 1949, 10 L.R.T.W.C. 69, 158.

110

Hass/Pri ebke, Tribunale Militare di Roma, Senten za N. 322 del 22.7. 1997, p. 86 .

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sufficient to fulfil the objectives of sentencing? This, and other questions, will have to be resolved by future Trial Chambers facing this situation. However, there are schools of thought, suggesting that if an elderly convicted person did not run his life "correctly", why give him another chance ? Also, then there is an argument that a specially equipped prison would be necessary to provide health care in the case of detention of an elderly person. Finally, in this connection, there arises the problem that young offenders will surrender and plead guilty only when they are infirm and elderly!

28

INTERNATIONAL PEREMPTORY NORMS (JUS COGENS) AND INTERNATIONAL HUMANITARIAN LAW Rafael Nieto-Navia

I. INTRODUCTION The notion of jus cogens in international law encompasses the notion of peremptory norms in international law.I In this regard, a view has been formed that certain overriding principles of international law exist which form "a body of j us cogens",' These principles are those from which it is accepted that no State may derogate by way of treaty. As a result they are generally interpreted as restricting the freedom of States to contract while "voiding" treaties whose object conflicts with norms which have been identified as peremptory.' However, both the scope and in fact very existence of this concept has been debated within the intemationallegal community for many years.' Consensus was finally reached as to a definition during

I

"Peremptory" is defined as: "Imperative; final; decisive ; absolute ; conclusive; positive ; not admitting of quest ion, delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown." Black 's Law Dictionary (Sixth Edition , 1990), p. 1136.

2

I. Brownlie, Principles of Public International Law (Fifth Edition , 1998), p. 5 15.

3

T. Meron, 'On a Hierarchy of International Human Rights '. 80 American Journal ofInternational Law (AJIL) (1986) , p.l at p. 14.

4

Certain author s found that there existed in the internat ional community a binding law, violation of which rendered illegal the object of certain treatie s. See J.C. Bluntschli, Le Droit International Codifie (1874) , pp. 238-240; P. Fauchille , Traite de Droit International Public, Vol. I, lere partie (1922), p. 22; A. Verdross, Forbidden Treaties in International Law , 31 AJIL (1937) pp. 571 et seq. For a contrary view, see C. Rousseau, Principes de Droit International Public (1944) , pp. 340-341 and Vol. 1, Droit Internati onal Publi c (1970) , pp. 130-13 1.

L.C. Vohrah et al. (eds .), Man 's Inhumanity to Man , 595 -640 ©2003 Kluwer Law International. Printed in the Netherlands.

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the Vienna Conference held in 1969 (Vienna Conference) and this was codified in Article 53 of the Vienna Convention on the Law of Treaties 19695 (Vienna Convention) . This article considers first the development of the current overwhelming view that norms of jus cogens exist in international law. Within this analysis: I briefly consider the debate as to the validity of international law itself, summarizing what are generally accepted as the sources of international law from which concepts of jus cogens are drawn ; I continue with consideration of the development of the concept of jus cogens both theoretically and legally up to and including an analysis of the debates during the Vienna Conference and the subsequent promulgation of the Vienna Convention. Second, I identify what are accepted as being the constituent elements of concepts of jus cogens in international law while also providing some brief examples. Third, I consider the existence and impact of emerging norms of jus cogens in international law. Fourth, I consider the invalidity of a treaty whose object is considered to be in violation of a principle of jus cogens (either because of a conflict with existingjus cogens or emerging jus cogens) . And finally, fifth, I consider the existence of principles of jus cogens in international humanitarian law (if any) .

II. DEVELOPMENT OF JUS COG ENS A. The validity of international law

Recognition of international law itself as a valid corpus of rules has been a gradual process,"At a national level, the existence and therefore validity of the law is quite clear. Law is created and enforced by virtue of the power of the State exerted over its citizens (individuals). As has been stated, "[i]n systems of municipal law the concept of formal source [of law] refers to the constitutional machinery of lawmaking and the status of the rule is established by constitutional law" .? For this reason it is considered to be "valid" . However, such a formal structure is absent in

5 6

1

Vienna Convention on the Law of Treaties (1969) , UN Doc. NCONF.39127 . See generally, L. Oppenheim in Sir R. Jennings and Sir A. Walls (eds.), Oppenhe im 's International Law, (Ninth Edition, 1992), Vol. I, pp . 3 et seq. I. Brownlie, supra note 2, p. I.

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the international arena. International law has been described as "one of the p ossible sets of laws for ordering the world" being based "on the wills of all or many nation s" ." Largely as a result of its very nature (that is, the fact that it is comprised of many sovereign States co-existing), the international community is characterized by the absence of any defined sovereign or formal structure comparable to that present within national juri sdictions. It is however clear that States have become more and more dependant on each other, a phenomenon perhaps largely attributable to the growing "institutionalization" of the international community,"This so-called interdependence requires regulation. Although this is sometimes achieved by way of agreements reached between individual States, the lacuna is also filled through the recognition by individual States of a so-called international "conscience" which imposes legal regulation on the actions of States and in doing so ensures international respect for basic social values.'? Similarl y, this is reflected in the so-cal1ed international moral infrastructure, II which itself is subjec t to normative disciplines. 12 As a result of the regulation of States by international law, the concept of "national sovereignty" has undergone an evolution and today States are regulated by both their own national rules together with the continually developing laws of

8

9

10

11

12

A. Verdross, Volkerrecht, (Spanish Edition, 1957), p. 8. There are in modem analysis two opinions as to the validity of the law: (i) Kelsen was of the opinio n that only norm s and not facts could be valid, while (ii) other authors stated that there are prin ciples which are valid per se and that thereafter it is possible, through the will of States, to create positive law from them. See H. Kelsen , 'The Basis of Obli gation in Intern ation al Law' , in: Libra Homenaje al Profe sor Barcia Trelles (1958) p. 196 and A. Flores Olea , Ensayo sobre fa Soberania del Estado (1969 ), p. 120 respectively.

J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, (1974), pp. 35, 165. This interdependence of States also means that so-ca lled freedom of action of States (which in any event has never been absolute) is even more curtailed toda y. Based on this "m oral code" international recognit ion and respect for certain basic social values ca n mean that particular agreements reached between a limited numb er of States become "valid" for all. See C. de Visscher, Theories et Realises en Droit International Public (Spanish Edition, 1962), pp. 151-1 53. See genera lly, N. Politis, La Morale International (1942). C. De Visscher, supra note 10, p. 106. See also, Hauriou who stated that the best wayan institution can express itself is not legal but moral and intellect ual. F. Hauriou, 'Aux Sources de Droit ', 23 Cahiers de la Nouvelle Journee, p. 117.

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the international community." These laws develop or are created not by an international legislator or sovereign, but very generally through the consensus of States which have recognized that certain "values" amount to valid legal norms which must be respected as between States." In this regard, it is possible to talk of the "validity" of international law. Having recognized the general validity of international law, before one can identify those norms which may be designated norms of overriding importance within this law, it is necessary to identify the sources from which they may be drawn. The sources of international law are generally regarded as having been exhaustively enumerated in Article 38 (1) of the Statute of the International Court of Justice ("ICJ"): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilised nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. It is noteworthy that norms of jus cogens are not included specifically as being a "formal" source of international law. Before these norms can be properly placed among the "formal" sources one must identify both its evolution as a legal concept and the extent of international recognition of its existence.

13

14

N. Politis, 'Le Probleme des Limitations de la Souverainete et la Theorie de I'Abus des Droit dans les Rapports Internationaux', 1. Recueil des Cours (1925), pp. 5 et seq. O. Lissitzyn, 'EI Derecho Internacional en un Mundo Dividido ', III Anuario Uruguayo de Derecho Internacional (1964) , p.lIO. For a contrary view see, a.M. Danilenko , 'International Jus Cogens: Issues of Law Making' (1991) European Journal of International Law (EJIL), p. 42. Although States may violate international law, generally it is not because they believe they are not subject to it. See J. L. Brierly, The Outlookfor International Law (1944), pp.4-5 .

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B. Recognition of the concept of Jus Cogens in international law" 1. Theoretical acceptance a/the concept of iu« Cogens The notion of jus cogens as finally codified by the Vienna Convention is not recent. Although its origins may be traced primarily to the period in which the naturallaw doctrine was developed (see below), the notion was in fact first developed by the so-called "stoics." In the fourth century AD they developed the theory that law should be applied on an international scale , by virtue of a so-called "universal reasoning" which is not based on individual nationalities or race but is rather common to all. In doing so, they arrived at an idea of a "universal State " in which all men should be equal." For the Spanish theologians of the sixteenth century (recognized as being the founders of modem international law), for Grotius and for other classical writers there existed certain "principles"!" which amounted to ajus naturale necessarium (necessary natural law)," Wolff'? and Vattel'" stated that there existed "necessary law" which was natural to all State s and that all treaties and customs which contravened this "necessary law" were illegal. Grotius stated that principles of natural law were so immutable that not even God could change them." "Natural law was the dictate of right reason involving moral necessity, independent of any institu-

15

16

17

On the origin s of the expression ju s cogens, see E. Suy, 'The Concept of "Jus Cogens " in Public International Law' published in the compilation of works presented during the Lagonissi Conference, Lagonissi Conference on International Law, Papers and Proceedings, \'hl. II: The Concept of Jus Cogens in Internat ional Law, (Geneva 1967) ("Lagonissi Conference"), pp. 17-77. These words were used for the first time by the International Law Commission in Fitzmaurice's Third Report , Vol. II, ILC Yearbook (1958) pp. 26-28 and 40-41 (see below), This was notwithst anding the fact that the ideal of absolute equality was blurred by a prevalent distinction between "absolute" and "relative" natural law. See W. Friedmann , The Changing Stru cture of International Law (Spanish Edition, 1967), p. 102 and in general, R. Nieto-Navia, Estudios Sobre Derecho Internacional Publico (1992) , pp. 61-83. Such notions were said by the "Thomists," to be present in the human mind. Aristotle, Ret. I, 13.

18

cplJm x 6v c'5txa[ov,

19

C. Wolff, Jus Gentium (1764) , para. 5.

20

E. de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle (1758), para . 9.

21

H. Grotius, De Jure Belli Ac Pacis Libri Tres (1625), I, Ch. I, X, 5.

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tion - human or divine"." Natural law was therefore interpreted as being a "necessary law which all states are obliged to observe't." It included a theory that there existed universally binding principles of law "which could not be changed by anyone"." In recognizing the existence of natural law principles, most philosophers were also in general agreement that there existed an international community" to which all sovereignties should submit in the interests of what could be described as the common good of humanity." They distinguished between jus naturale necessarium andjus voluntarium or voluntary law, described as consent based law or law "created by the presumed , express or tacit will of States". In particular, they considered that principles of jus naturale necessarium could not be amended by way of agreements reached in the exercise of voluntary law." One can also recall in this context the views of Bodin. Bodin has long been considered the main supporter of a theory of absolute sovereignty, that is the theory that States have absolute power over their citizens ." However, contrary to this popular opinion, Bodin did in fact also acknowledge that the concept of sovereign authority did not mean that this authority could be unlimited and arbitrary. On the contrary, he recognized that the sovereign was always subject to the overriding "laws of God," natural law and the law of nations.

22

L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, (\988), p. 30.

23

A. Verdross, 'Jus Dispositivum and Jus Cogens in International Law ' , 60 AJIL (\966), p. 56. Such notions are based on the metaphysical and consider that the validity and origin of all human actions are eternal truths. A. Flores Olea, Ensayo sobre la Soberania del Estado (1969), p.66.

24 25

26

27

28

L. Hannikainen, supra note 22, p. 30.

Although the concept of an international community is of course very old it was much developed after the Second World War, and especially during the last part of the twentieth century. See the Declaration of the then President of the International Court of Justice (ICJ), M . Bedjaoui attached to the ICJ Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons, Opinion of 8 July 1996, ICJ Reports, p. 226, para. 13, and R-J Dupuy, 'Communaute Internationale et Disparites de Developpement' 165 Recueil des Cours , IV, pp. 9 et seq. However, although there was general concurrence as to the existence of this overall notion the philo sophers often differed as to the contents of natural law: L. Hannikainen, supra note 22, p. 3 I. A. Verdross, supra note 23, p. 56. He stated that: sovereign authority is upon the citizens and subjects and power is independent of laws (majestas est summa in cives et subd itos legisbusque soluta potestas). J. Bodin, Les Six Livres de la Republique, L. I, c.VIll.

International Peremp tory No rms and Intern ational Hum ani tarian Law

60 1

Following this era, the notion of a superior and bind ing law on the international community (in general natural law theories) gradually began to disappear. Rather, what began to dominate thinking in the international arena were both new rules from State practice and what became known as the positive law doctrine, that is, the doctrine that law is actuall y and specifically enacted or adopted by proper authority for the government of an organized jural society." Although the notion of ju s naturale necessarium still maintain ed what could be described as a moral significance'? during this period the Hegelian notion of the State and "voluntary international law"," known to have been supported by Liszt emerged" As a result, for some years both the expressions jus cogens and ju s dispositivum disappeared. The overriding notion becam e rather the idea that international law was created solely through the will of States and was therefore subject to neither limitation nor restriction . Based on such interpretation in theory States could enter into treaties having any object and purpose.P Nevertheless for some authors the very foundati on of law remained what was contained in fundamental hypothetical norm s (g rundno rm tr' natural law" or La solidarite natu relle." The concept of norms of j us cogens developed partly from

29

Black 's Law Dictionary (Sixth Edition, 1990), p. 1162.

JO

L. Hannikainen, supra note 22, p. 34.

31

32

This approac h developed through two theories: the theory of auto-limitation of the State (Jellinek); and the theory according to which international law is created by the convergence of the will of States to produce an overall will of the community of States (the Vereinbarung) (Triepel and Anzilloti). See: C. Rousseau, Droit International Public (1953), p. 9; G. Jellinek , Teoria del Estado (Spanish edition, 1914), pp. 474 et seq.; C.H. Triepel, 'Les Raports entre le Droit Interne et Ie Droit International' , I Recueil des Cours (1923), p. 83. F. von Listz, Derecho Internacional Publico (Twelfth Edition (Spanish), 1929). As seen above this approach was largely based on what amounted to "consent based" international law.

n " Les regles de droit international n 'ont pas un caractere imperatif. Le droit international

admet en consequence qu 'un traite peut avoir n'importe quel contenu ... L'appreciatio n de la moralite d 'un traite conduit aisement ii la reintroduction du droit naturel dans Ie droit des traites," P. Guggenheim, Traite de Droit International Public ( 1953), pp. 57-58. See also, G. Morelli, Nozioni di Diritto intemazionale (1951), p. 37 and "Lo tus" Judgment No. 9, 1927, P.C.U. Series A, No. 10 at p. 18. 34

H. Kelsen, General Theory of La w and State (1945), pp. 110 et seq.

35

A. Verdross, supra note 8, pp. 21 et seq.

36

G. Scelle, Precis de Droit des Gens (1932), premiere partie, 3; Cours de Droit international public (1948) , pp. 5 et seq.

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these concepts. However, they are not the sole source or origin . This is because although natural law theory is based on a belief that there exist concepts exterior to and above positive law and which are contained in overriding fundamental binding norms,jus cogens is not. On the contrary, norms of jus cogens form an integral part of "positive" law itself and are defined and recognized by international law. As will be seen, these norms are norms which are accepted and recognized by the international community as norms from which no derogation is permitted. Therefore, although as with natural law theories, most of these norms derive from ethicalor sociological considerations , their character derives from within international law and from the will of States." 2. Formal legal recognition of the concept of Jus Cogens (a) Developments leading up to the Vienna Conference The aforementioned theories of positivism continued to dominate the development of international law until the early part of the twentieth century. The concept of peremptory norms was not "formally" accepted in international law until the latter half of that century, but as stated above the idea that these norms existed in international law did not disappear completely. 38 First, as has been seen, academics continued to acknowledge the existence of peremptory norms on an informal basis." Oppenheim stated in 1905 that in his view, a number of 'universally recognised principles' of international law existed which rendered any conflicting treaty void and that the peremptory effect of such principles was itself a 'unanimously recognised customary rule of Inter-

37

38

39

P. Weil, 'Le Droit International en Quete de son ldentite ', 237 Recueil des Cours (1992), Vol. 6, pp. 266 - 267 : "Alors que le droit naturel de naguere etait concu comme exterieur et superieur au droit positif, le jus cogens d' aujourd 'hui fait partie integrante du systeme, puisque c' est le droit intemational lui-meme qui definit certaines normes de rang superieur auxquelles la volonte des Etats ne peut deroger:"

Lauterpacht states that in modem times more and more importance is being accorded to concepts of natural law. See, H. Lauterpacht, Private Law Sources and Analogies ofInternational Law (1927), as quoted by W. Jenks in The Common Law ofMankind (Spanish Edition undated), p. 29 (original 1958). See J. L. Kunz, 'La Crise et les Transformations du Droit des Gens', 88, II, Recueil des Cours (1955), pp. 1-104. Also 'The Changing Law of Nations' , 51 AJlL, pp. 77-83.

International Peremptory Norms and International Humanitarian Law

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national Law' .4O Similarly, Hall stated that "[tjhe requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of international law and their undisputed applications, and with the arbitrary usages which have acquired decisive authority"." Second, moves towards a more "formal" recognition of this concept within internationally binding instruments and jurisprudence began to appear after the First World War, with, for example, the inclusion of relevant articles in both the Covenant of the League of Nations and the Statute of the Permanent Court of Justice (later, the Statute of the ICJ). Article 20.1 of the Covenant of the League of Nations of 1919 (interpreted by Judge Schiicking, below), provided that members of the League should not enter into treaties which were incompatible with the terms of the Covenant." While later, Article 38 (I)(c) of the Statute of the Permanent Court of Justice, adopted in 1920,43 included "the general principles of law recognized by civilised nations" within the sources of law applicable by the Court." In 1934, Judge Schiicking of the PCB interpreted Article 20 of the League of Nations as follows: The Covenant of the League of Nations, as a whole, and more particularly its Article 20 .. . would possess little value unless treaties concluded in violation of that undertaking were to be regarded as absolutely null and void, that is to say, as being automatically void. And I can hardly believe that the League of Nations would have already embarked on the codification of international law if it were not possible, even to-day, to create ajus cogens, the effect of

40

41

42

43

44

M. Byers , 'Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules '. 66 Nordic Journal of International Law (1997), p. 211 at p. 213 referring to L. Oppenheim, International Law (Longmans London, 1905) Vol. I, p. 528. W. Hall, A Treatise of International Law (Eighth Edition, 1924) at 382, referred to by M. Byers, supra note 40, at p. 213. Article 20.1 of the Covenant ofthe League of Nations provides : The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof. Later reflected in Article 38 (I)(c) of the Statute of the International Court of Justice, annexed to the Charter of the United Nations (see Article 92 of the Charter of the United Nations) . As will be seen, these general principles have been interpreted as providing a source for peremptory norms of international law. See for example, M. Byers, supra note 40, at 223.

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which would be that, once States have agreed on certain rules of law, and have also given an undertaking that these rules may not be altered by some only of their number, any act adopted in contravention of that undertaking would be automatically void." Similarly, in 1939, resolution of the celebrated dispute over the contract agreement between the Sheikh of Abu Dhabi and a British petroleum development corporation led to consideration by Lord Asquith of Bishopstone of what should be the appropriate principles to apply. The agreement contained a declaration by the parties "that they [should] base their work in th[e] agreement on good will and sincerity of belief and on the interpretation of th[e) agreement in the fashion consistent with reason". In resolving the dispute which arose between the parties, Lord Asquith of Bishopstone decided to apply "principles rooted in the good sense and common practice of the generality of civilised nations - a sort of ' modern law of nature' "." Finally, it is recalled that the IC] discussed the existence in international law of what it considered to be a special category of international norms that should receive a particular degree of prominence. In commenting on the Genocide Conventiorr'? it stated that "its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the Contracting States do not have any interests of their own ; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d'etre of the convention . . . The high ideals which inspired the Convention provide , by virtue of the common will of the parties , the foundation and measure of its provisions"."

45

Judge Schiicking 's individual opinion in The Oscar Chinn Case, (1934) PCIJ Rep. Ser. AlB , No . 63, p. 149.

46

47

48

W. Friedman , 'The Uses of "General Principles" in the Development of International Law' , 57 AJIL (1963) , p. 279 at p. 284. See also I International and Comparative Law Quarterly (lCLQ), (1952) , pp. 247 et seq .: Judicial Decisions, Cont inental Shelf, 47 AJIL (1953), p. 156; J. L. Kunz, 'El Sistema del Derecho Internacional,' in Libro Homenaje al Profesor Barcia Trelles (1958) , p. 101. The applicable law was decided by the arbiter. Convention on the Prevention and Punishment of the Crime of Genocide , adopted 9 December 1948 and entering into force on 12 January 1951. Reservations to the Convention on the Prevention and Punishment ofthe Crim e of Genocide, ICJ Reports (1951), p. 15 at p. 23. See also below, with regard to the discussion on international humanitarian law.

International Peremptory Norms and International Humanitarian Law

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Such was the approach generally taken by international law with the abandonment of strict positivist theories. The draft article onjus cogens brought to Vienna by the International Law Commission essentially reflected these developments and opinions." (b) Jus Cogens as discussed during the Vienna Conference The International Law Commission began preparations for a convention on the law of treaties at its first session held in 1949. Based on the prevailing view (discussed above) that there existed within the international community overriding binding laws or principles, violation of which could render illegal the object of a particular treaty, it decided to include as part of the discussions a proposal for a provision formally recognizing peremptory norms in the law of treaties . Four Special Rapporteurs were appointed overall to research the question . However, it is particularly noteworthy that two, Brierly" and Lauterpacbt," had long before their appointment as Special Rapporteurs been supporters of acceptance of the notion of peremptory norms in international law.52 Lauterpacht had even gone so far as to endorse the creation of an international organ responsible for deciding on the morality of the object of treaties ." Accordingly in his report in 1953 he included a draft article which permitted the ICI to declare a treaty void if its accomplishment could be considered illegal under intemational law." The next draft was submitted by Special Rapporteur Fitzmaurice with the final draft being that ofWaldock who was appointed in 1963 as the final Special Rapporteur on this question. 55 The issue

49 50

See generally , J. L. Kunz , 'El Sistema del Derecho Internacional ', sup ra note 46. J. L. Brierly, 'Regles Generales de Droit de la Paix'; 58 Recueil des Cours (1936) , pp. 218-

219. 51

H. Lauterpa cht, 'Regles Generales de Droit de la Paix' , 62 Recueil des Cours (1937) , pp. 153 et seq.

52

Although Brierly did not include reference to ju s cogens in his reports .

53

H. Lauterpacht, supra note 51, pp. 306-307.

54

55

Article 15, Vol. II, ILCYearbook (1953), p. 93: "A treaty, or any of its provisions, is void ifits performance involves an act which is illegal under intemationallaw and if it is declared so to be by the International Court of Justice ." It was Waldeck's draft that provided the basis for discussion during the conference held in Lagonissi under the auspices of the Carnegie Endowment. For arguments against the draft , see G. Schwarzenberger, 'International Jus Cogens ?'; 43 Texas Law Review (1965), pp. 45 et seq., and 'The Problem of International Public Policy', Current Legal Problems (1965) , pp.

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of jus cogens was discussed by the International Law Commission during its sessions held in 1963 and 1966, and it was on the basis ofWaldock"s draft that the final draft article was adopted and included in the report submitted to the Vienna Conference." In this report, the International Law Commission stated the following;" 1. The view that in the last analysis there is no rule of international law from which States cannot at their own free will contract out has become increasingly difficult to sustain [. ..] 2. [I]n codifying the law of treaties it must start from the basis that to-day there are certain rules from which States are not competent to derogate at all by a treaty arrangement, and which may be changed only by another rule of the same character [recognition of the existence of Jus Cogens] [ ...]

3. [T]here is no simple criterion by which to identify a general rule of international law as having the character ofjus cogens . Moreover, the majority of the general rules of international law do not have that character [. . .] 4. It is not the form of a general rule of international law but the particular nature of the subject-matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens [. . .]

191-214 . A response to this is found in A. Verdross, supra note 23, pp. 55 et seq. In general see also Lagonissi Conference: E. Suy, supra note 15, G. Abi-Saab, Summary Record ofthe Discussion on the Concept ofJus Cogens in Public International Law ; B-S. Murty, Jus Cogens in International Law . See also J. Sztucki, supra note 9, pp. 194-204. A summary of the views of States on the draft article were included by Waldock in the report found in Vol. Il , ILC Yearbook (1966), pp. 20 et seq. 56

57

Draft Article 37 in 1963 (which became draft Article 50 in the report to the Vienna Conference in 1966) read : "Treaties conflicting with a peremptory norm of general international law (jus cogens). A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character:' This draft was finally adopted unanimously in 1963. See Vol. I, ILC Yearbook (1963), pp. 291 ff. (the article was then numbered 13). The principles drawn from the report are quoted exactly , although the numbering has been added.

International Peremptory Norms and International Humanitarian Law

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5. The emergence of rules having the character of jus cogens is comparatively recent, while international law is in process of rapid development. The Commission considered the right course to be to provide in general terms that a treaty is void if it conflicts with a rule of jus cogens and to leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals [.. .] 6. [I]t would clearly be wrong to regard even rules of jus cogens as immutable and incapable of modification in the light of future developments ...The article, therefore defines rules of jus cogens as peremptory norms of general international law from which no derogation is permitted "and which can be modified only by a subsequent norm of general international law having the same character" [.. .] 7. [The] article is designed to exclude the arbitrary determination of the invalidity, termination or suspension of a treaty by an individual State such as has happened not infrequently in the past and to ensure that recourse shall be had to the means of peaceful settlement indicated in Article 33 of the Charterl'"] [. . .] 8. [T]here is no question of the present article having retroactive effects. It concerns cases where a treaty is void at the time of its conclusion by reason of the fact that its provisions are in conflict with an already existing rule of jus cogens [... 1 9. [T]he emergence of a new rule of jus cogens is not to have retroactive effects on the validity of a treaty. The invalidity is to attach only from the time of the establishment of the new rule of jus cogens. 59 As will be seen below, during the Vienna Conference it became clear that in reality, although most States acknowledged in principle the existence in international law of peremptory norms, they differed somewhat as to how they could be identified

58

59

Article 33 of the Charter of the United Nations provides : "I. The parties to any dispute, of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry , mediation , conciliation, arbitration, judicial settlement , resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such mean s." Vol. II, ILCYearbook (1966) pp. 247 et seq.

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and defined. Nevertheless, based largely on the International Law Commission report and draft article'" and following the debates at the Vienna Conference, the article as it appears today (see below) was adopted by what has been described as a "rather impressive majority"61 of 87 votes (8 votes againsr? and 12 abstentions"). (c) The Vienna Convention on the Law of Treaties Article 53 of the Vienna Convention is recognized as setting out the current internationally accepted definition of jus cogen s. It provides:

Treaties conflicting with a peremptory norm of general international law (jus cogens) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character/" (d) Difficulties arising after the Vienna Conference The International Law Commission itself had already recognized the problems in attempting to codify the concept of jus cogens in international law. In its report to the Vienna Conference, it acknowledged that "[tlhe formulation of the article is not free from difficulty, since there is no simple criterion by which to identify a

60

61 62

63

64

The draft article was adopted at the Vienna Conference largely as suggested , save for the addition of primarily the words "accepted and recognised by the international community of States as a whole ." A1CONF. 39/C . IlL , p. 306. J. Sztucki, supra note 9, p.158. Australia, Belgium , France, Liechtenstein, Luxembourg, Monaco , Switzerland and Turkey. A1CONF.39/l1/Add.l , p. 107 (Records of Twentieth Plenary Meeting held 12 May 1969). New Zealand , Norway, Portugal , Senegal, South Africa , Tunisia, United Kingdom, Gabon, Ireland, Japan, Malaysia and Malta. A1CONF.39/lI/Add.l , p. 107 (Records of Twentieth Plenary Meeting held 12 May 1969). This provision deals only with the impact on treaties of existing norms recognised as being peremptory under general international law at that time. The impact of what were referred to as emerging peremptory norms on existing treaties (see below) is regulated by Article 64 of the Vienna Convention.

International Peremptory Norms and International Humanitarian Law

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general rule of international law as having the character of jus cogens. Moreover, the majority of the general rules of international law do not have that character, and States may contract out of them by treaty"." During the debates held at the Vienna Conference the French delegate, M . Hubert" was one of the delegates who pointed out the problems he anticipated would potentially arise through codification of the concept." In particular, he pointed out the following: a. He expressed a general concern that the article was imprecise as to scope, formation and effect. He stated that "it declared void. . .an entire category of treaties but failed to specify what treaties they were, what were the norms whereby they would be voided, or how those norms would be determincd"." b. He stated that imprecision in the article would mean that disputes would become a permanent feature in its interpretation and as a result both legal instruments and international relations would be undermined. c. He stated that if the article was interpreted to mean that a majority of States could create rules of jus cogens then the result would be the creation of a source of international law subject to no control and lacking all responsibility. In sum, he stated that "his delegation was not prepared to take a leap in the dark, and to accept a provision which, because it failed to establish sufficiently precise criteria, opened the door to doubt and compulsion'Y" These criticisms, directed primarily at the difficulties inherent in identification of peremptory norms of international law, were by no means new. The criticisms have also not gone away and in more recent times concerns are still being raised . One can cite by way of example, Virally, who wrote in 1983 that it is "difficile d 'affirmer aujourd'hui si une seule regle de droit international a pu satisfaire le

65

Vol. II, ILC Yearbook (1966), pp. 247-248 .

66

France eventually voted against the inclusion of final Article 53.

67

A/CONF.39/1 l/Add. 1, pp. 93 et seq.

68

Ibid., p. 94, no. 8.

69

Ibid., p. 95. no. 18.

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critere defini a l'article 53 de La Convention de Yienne't." While in 1992 Weil wrote: "Tous cesfacteurs [71) se conjuguent pour interdire al'heure actuelle encore - pLusde vingt ans ... apres La Convention de Vienne - toute identification, meme approximative, des regles de jus cogens"." Notwithstanding these criticisms, almost all States recognized prima facie the existence of jus cogens in international law and it was on this basis that Article 53 of the Vienna Convention was adopted." Since 1969, it is clear that the international community as a whole has continued to accept the existence of these norms from which no derogation is permissible through agreement or unilaterally. As a result , it is possible to state that the definition agreed upon in the Vienna Convention is probably more than simply valid for the purposes of the Convention and is rather valid as a definition of the concept for the general purposes of international law."

III. JUS COG ENS IDENTIFIED Having considered the general definition of jus cogens in the Vienna Convention, the following are identified as being the pre-requisites necessary for a norm in international law to be "elevated" to the status of a norm of jus cogens in intemationallaw:

70

71 72

73

74

M. Virally, 'Panorama du Droit International Contemporain ', 183 Recueil des Cours (1983), p. 178. M . Virally was a member of the French delegation to the Vienna Conference. As seen above, France was strongly opposed to the inclusion in the Vienna Convention of an article regulating jus cogens . Namely a concern regarding the risk of rendering the international system unbalanced. P. Weil, 'Le Droit International en Quete de son ldentite'; 237 Recueil des Cours (1992), p. 271.

Report of the Sixth Committee to the General Assembly during the eighteenth period of sessions (1963), UN Doc . A/5601 . M. Akehurst, A Modern Introduction to International Law (Spanish Edition, 1972), p. 73.

International Peremptory Norms and International Hum anitarian Law

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A. The norm must be a norm of general international law General international law is international law that is binding on most, if not all, States. It is the law which governs the international community in general "as is far the greater part of customary law"." This is distinguished from both regional international law, which is only binding upon States from an identified geographical region and particular international law (usually contained within treaties) which is only binding upon a few States. Schwarzenberger considered the possibility of the existence of jus cogens inter partes, that is, norms ofjus cogens having a limited effect only between identified or signatory parties." Such a notion envisaged the creation of norms of ju s cogens by way of treaty, and thereafter observance of the requirement that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith" (pacta sunt servandai." However, such a treaty is limited by the fact that there is no overriding rule prohibiting derogation (one of the identifying characteristics of jus cogens, as seen below) and the norm is only binding between the limited number of States parties." Not all norms of general international law have the character of jus cogensl? However, "[t]he criterion for [the] rules [of jus cogens] con sists in the fact that they do not exist to satisfy the need of the individual states but the higher interest of the whole international community'"? as can be seen in certain of the rules of general intemationallaw created for a humanitarian purpose (see below).

75

L. Oppenheim, Oppenheim 's International Law, supra note 6, Vol. I , p. 4. What is referred to

as general international law in this article is referred to as universal intern ation al law in Oppenheim 's Intemational Law, whil e the word "general" is employed to describe internationallaws that are "binding upon a great many state s." 76

77 78

79

80

G . Schwarzenberger, 'Th e Problems ofInternational Public Policy ' , Current Legal Problems (1965), p.191 at p. 194. See also, by the same author The Inductive Approach to International Law (1965), p. 100 and International Law, (1957), Vol. I, pp. 213 et seq. See Articl e 26 of the Vienna Convention. The International Law Commission expressly excludes "regional international law" when referring to the chapeau of dra ft article 50 . Vol. I, ILC Yearbook (1963), p. 214 . This means that not all general international law treaties even those ratified by a very large number of States can be classed asjus cogens. This problem will be discussed further infra. A. Verdros s, supra note 23 , p. 58 .

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B. The norm must be "accepted and recognized by the international community of States as a whole" 81 Acceptance and recognition by the international community can be either express or implied. Interpretation of how broad this acceptance must be however remains subject to debate. As pointed out by the Chairman of the Drafting Committee at the Vienna Conference, Mr. Yasseen, the words "as a whole" were added to draft Article 50 by the International Law Commission to avoid a situation whereby one State could effectively veto a decision to designate a norm as peremptory: [. ..] there was no question of requiring a rule to be accepted and recognized as peremptory by all States. It would be enough if a very large majority did so; that would mean that, if one State in isolation refused to accept the peremptory character of a rule, or if that State was supported by a very small number of States, the acceptance and recognition of the peremptory character of the rule by the international community as a whole would not be affected." Therefore, it is the case that before a norm can be considered as jus cogens it must be accepted and recognized by the international community of States as a whole (in some respects similar to the way in which norms of general customary international law are formed). However, this does not mean that the norm must be accepted by all States (unanimously). What is most important is that "only some subjects of international law, acting alone or in conjunction with others" cannot create jus cogens 83 and thereafter impose their interpretation on the majority of States. Similarly, only some subjects acting alone or in conjunction with others cannot in theory veto a decision taken by a majority of States."

81

The words "recognized by the community of States" were included by an amendment proposed by Spain, Finland and Greece (AICONF.39/C. IlL and Add. 1 and 2). The Drafting Committee introduced the words "as a whole". "[L ]a pratique de ces dernieres annees nous montre que le recours a la notion de communaute international n 'est plus I' apanage des pays en voie de developpement dans la mesure oii les Etats occidentaux, hier les plus reticents, n 'hesitent plus, aujourd'hui, invoqu er la defense de la dite communaute au nom de droit." J-A . Carrillo-Salcedo, 'Cou rs Gen eral de Droit International Public', 257 Recueil des Cours (1996), p. 132.

a

82 83

84

AlCONF. 39/11, p. 472.

C. Tomuschat, 'Obligations Arising for States Without or Against their Will', 241 Recueil des Cours (1993), p. 307. This interpretation is valid in the context of an international conference attempting to identify j us cogens as in this context a veto would not be accepted . However it has no significance

International Peremptory Norms and International Humanitarian Law

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One can state generally that norms of jus cogen s can be drawn from the following identified sources of international law: (i) General treaties It is well accepted in international law that treaties do not bind non-parties without

their consent. 85 However, one exception to this principle are those conventions or treaties whose objects and purposes render them more important. This will be considered further below when discussing international humanitarian law. However it can be noted that if a treaty or convention simply codifies existing norms which are already binding on States as customary international law, States not party to the convention or treaty in question may nevertheless find that they remain bound by the terms of the relevant customary law principle." Similarly, if provisions of such treaties or conventions satisfy the other criteria to be recognized as jus cogens, States not party to them will also be bound by their terms. (ii) International custom International custom is defined as being "evidence of a general practice accepted as law.'"? Notwithstanding the process of codification of international law under-

in the case of customary law. "Il ne s'agit pas d 'une question de majorite ni d 'acceptation

universelle: on demande plutot qu'une regie donnee soit acceptee et reconnue comme imperativ e par de nombreux Etats qui soient assez representatives des differents groupes politiques et geographiques qui forment la communaute international." F. Capotorti, 'Cour s General de Droit International Public ', 248 Recueil des Cours (1994), p. 141. 85

The maxim pacta tertiis nee nocent nee prosunt means that a treaty applies only between the partie s to it. See for example, Article 34 of the Vienna Convention: "A treaty does not create either obligations or rights for a third State without its consent." Article 35 of the Vienna Convention: "An oblig ation arises for a third State from a provision of a treaty if the parties to the treaty intend the provi sion to be the means of establishing the obligation and the third State expressly accepts that obligation in writing." Also, 1. Brownlie, supra note 2, p. 628 . See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951) , p. IS at p. 21.

86

See Articl e 38 of the Vienna Convention: Rules in a treaty becoming binding on third States through international custom: "Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such." Kelsen stated that "general multilateral treaties to which the overwhelming majority of the states are contracting parties, and which aim at an international order of the world " are exceptions to the pacta tertiis rule. See H. Kelsen , supra note 34, p. 486 .

87

Article 38 (l)(b) Statute of the ICJ.

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taken by the International Law Commission over the years a large portion of international law remains customary in nature. Indeed even the many so-called "general" treaties (see below) are often in fact simply codification of existing customary law rules . For certain authors , norms of jus cogens are to be found primarily in international custom ." (iii) General principles of law recognized by civilized nations."

C. The norm must be one from which no derogation is permitted and which can be modified only by a subsequent norm of general international law of the same character 90 It could be stated that this is in fact the main identifying feature and "essence" of a norm of jus cogens . Although the next section of this article will attempt to illustrate, by way of selected examples, norms which one can state have been accepted

88

89

90

A. McNa ir, The Law of Treaties (1961) , pp. 2 14-2 15; Katz, Lagonis si Conference, p. 100; Tunkin, Lagonissi Conference, p. 102. Some authors think that only international custom can create ju s cogens. See for example , J. Sztucki, supra note 9, p. 74, where he mentions Monaco and Wengler. Article 38 (1)(c) Statute of the ICJ. The role of general principles of law as a source of international law is often considered to be "supplementary" . See generally A. Verdross, supra note 8, p. 126 and supra note 23, pp. 55 et seq. However it could also be stated that most of these principles are binding per se. "The fact that all States consider that immoral agreements (contra bono s more s) are not binding" (ibid. 143), is a general principle of law, as affirmed by Judge Schiicking in his individual opinion in The Oscar Chinn Case , (1934) PCIJ Rep. Ser. AlB, No. 63, pp. 149-150. For example , notwithstanding Article 103 of the Charter of the United Nations (Article 103 provides : "In the event of a conflict between the obligations of the Members of the United Nations under the .., Charter and their obligations under any international agreement , their obligations under the present Charter shall prevail"), although a conflict in an obligation under the UN Charter and a norm of jus cogens is highly improbable, the relevant norm of jus cogens would have to be found to prevail over any corresponding norm or obligation under the United Nations Charter. See M. Virally, 'Reflexions sur Ie Jus Cogens'; Annuaire Francais de Droit International (1966) , p. 26. Similarly, the Security Council (as with all organs created by States for common action) is bound by norms of jus coge ns. K. Zemanek, 'Legal Foundations of the International System', p. 266, Recueil des Cours (1997), p. 231.

International Peremptory Norm s and Int ernational Human itar ian Law

615

by most as being norms ofjus cogens, with regard to this criteria in particular it is "easier to illustrate these rules than to define them".?' Accordingly, it is possible to draw a preliminary classification of norrns'" that do not pennit derogation by inter-parties treaties or otherwise: (i) Norms which have a fundamental bearing on the behaviour of the international community of States as a whole and from which no derogation is permitted at al1. 93 One example is the principle of good faith." (ii) Norms which are necessary for the stability of the international juridical order, for example pacta sunt servanda 95 and general principles of law96 including res inter alios acta." (iii) Norms referred to as having humanitarian objects and purposes including certain principles of human rights and international humanitarian law,"

9\

92

93 94

95

96 97

98

A. McNair, supra note 88, p. 215. Although this statement is made in general with regard to "rules of customary intemationallaw which stand in a higher category and which cannot be set aside or modified by contra cting States" it is particularly relevant in illustrating this "ingredient" of norms of ju s cogens.

" [L]a notion d 'ordrejuridique designe toujours un systeme coordone de principes et de regles" J-A Carrillo-Salcedo, Cours General de Droit International Public, 257 Recueil des Cours (1996), p. 135. These are not strictu sensu norms as defined in Article 53 of the Vienna Convention. See Pechota , Carnegie Endowment Conference on the Process of Change in International Law ("Menton Conference"), Report, p. 15. See Article 26 of the Vienna Convention : Every treaty in force is binding upon the parties to it and must be perform ed by them in good faith. From which derogation is logically impossible . This rule forbids the introducti on of collateral facts which by their nature are incapable of affording any reasonable presumption or inference as to the principal matter in dispute , and thus evidence as to acts, transaction s or occurrences to which accused is not a party or is not connected is inadmis sible. Black 's Law Dictionary (Sixth Edition , 1990), p. 1310. See also J. Sztucki , supra note 9, p. 72. A. Verdross, supra note 23, pp. 59-60. This is in fact a general conclusion as not all norms of human rights can be included. In general terms one can state that under jus cogens States are obliged to respect human rights. Specific human rights which can be considered as part of ju s cogens are for example, those prohibiting the trade of human beings (not only "slavery" as defined, but also the traffic of women and children extended and tolerated in Europe today ). With regard to international humanitarian law, see below.

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(iv) Norms of general interest to the international community as a whole or to international public order. Examples are: the goals and aspirations set out in the preamble to the Charter of the United Nations : WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and, the "Purposes and Principles" of the United Nations , as set out in inter alia, Articles 1.299 and 2.1-2.4 100 respectively of the Charter of the United Nations . These include : respect for equal rights and self-determination of peoples ;101 sovereign equality of States; fulfilment in good faith of international obligations ; settlement of international disputes by peaceful means; 102

99

100

101

102

Article 1.2, setting out one of the purposes of the United Nations , provides in full: "To develop friendly relations among nations based on respect for the principles ofequal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace" . (Emphasis added). Article s 2.1-2.4 provide as follows : The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordan ce with the following Principles. 1. The Organisation is based on the principle of the sovereign equality of all its Members . 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shalljUljil in goodfaith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Member s shall refrain in their international relations from the threat or use offor ce against the territorial integrity or polit ical independen ce ofany state, or in any other manner incon sistent with the Purposes of the United Nations (emphasis added) . M. Bedjaoui, 'Commentary to Article 73 of the Charter' in: J-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (1985), p. 1074. According to J. Charpentier this principle is a rule of customary law binding on all States but is not jus cogens. He reaches this conclusion based on the fact that during the discussion on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of United Nations (UN . Rep, suppl.

Internationa l Peremptory Norms and International Humanitarian Law

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prohibition of the threat or use of force against other States in any manner inconsistent with the purpose s of the United Nations.' ?' (v) Norms which are binding on all new States even without their consent as being established rules of the international community. Exampl es are the principles of the freedom of the high seas or the common heritage of mankind, the protection of the environment and respect for the independence of States. 104 One final observation should be made. Rules of ju s cogens can be defined in general terms as being non-derogable rules of international "public policy" .105 Given their overriding importance and indeed because often they involve matters of international public order, it can be stated that each and every State has a legal

No.4, Vol. I, p. 363) a proposed amendm ent to consider this principle as expressing a universal juridical conviction by the international community was rejected (' Commentary to Article 2, paragraph 3 of the Charter' , in: J-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (1985). 103

Case Concerning Military and Paramilitary Activities In and Against Nicaragua, Judgement of 27 June 1986, ICJ Reports (1986 ) (the "Nicaragua case"), pp. 100-10 I. M. Bennouna believed that Article 2.7 of the Charter of the United Nations (which prohibits UN intervention "in matter s which are essentiall y within the dome stic juri sdiction of any State") "a un caractere peremptoire" and "[lja non-intervention pa r la force dans les luttes intestines est une nonn e imperative de Droit international" (Le Consentement a la Ingerence Militaire dans les Confiits Internes (1974 ), pp. 120 and 79). In the Case Concerning United States Diplomatic and Consular Staffin Tehran , Judgm ent of 24 May 1980, ICJ Reports ( 1980), pp. 42-43, the ICJ stated: "Such events [setting at naught the inviolability of a foreign emb assyI cannot fail to undermine the edifice of law carefully con structed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progre ss of relation s between its members should be constantly and scrupulously respected." Although this is recognition of the importance of these rules of behavior within the international community it does not mean that the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations are peremptory.

104

"Les regles qui assurent a tous les membres de la communaute internationale la j ouissance de certaines biens communs." R. Ago, ' Droit des Traites a la Lumiere de fa Convention de Vienne. Introduction ', 134 Recueil des Cours (1971), III, p. 324. The Tribunal of Arbitr ation in the case Aminoil expressly rejected the idea of considering the perman ent sovereignty on the natural resources as a norm of j us cogens. Journal du Droit Internati onal ( 1982), p. 893.

105

M. Byers, supra note 40, p. 211.

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interest therein. P" As a result, one can state that peremptory obligations are owed by all States (and other subjects of international law) to the international community of States as a whole. One can recall the well-known dictum of the Ie) in the BarceLona Traction case: [A]n essential distincti on should be drawn between the obligations of a State toward s the international community as a whole , and those arising vis-a-vis another State [.. .] By their nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes [.. .] Such obligations derive , for example, in contemporary international law, from the outlawing of acts of aggression, and of genocidet'?" as also from the princi ples and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. l'" The se erga omnes obligations have been defined as obligations of a State towards the international community as a whole, in the vindication of which all States have a legal interest. They are rules which accord a right to all States to make claims . As stated by Brownlie such rules are "[o]pposable to, valid against, ' all the world ' , i.e., all other legal persons, irrespective of con sent on the part of those thus

106

Except the States parties in the treaty by application of the principle venire contra fa ctum proprium non valet. See the opinion of Luxembourg on the 1963 draft (Vol. II, ILC Yearbook ( 1966), p. 312). Commo n article I of the Geneva Con venti ons provides that "[r[he High Contr acting Parties undertak e to respect and to ensure respect for the present Con vention in all circumstances ." This has been interpreted by the JCRC as meaning that " [ijn the event of a Power failing to fulfil its oblig ations, each of the other Contra cting Parties (neutral, allied or enemy) may and should endeavour to bring it back to an attitude of respect for the Convention," See, for example the commentary to Article I of Geneva Convention IV, in J. Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, (International Committee of the Red Cross , Geneva, 1958). This means, that all Contracting Parties , even those not concerned with the case in particular, have locus standi to react.

107 In

its decision of II July 1996 in the Case concerning Appli cation of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgem ent on Preliminary Objections, ICJ Report s (1996), para. 52, the ICJ also considered that the rights and obligations in that convention were erga omnes.

conce rning the Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment of 5 Febru ary 1970 , ICJ Reports (1970), p. 3, at p. 32.

108 Case

International Peremptory Norm s and International Human itarian Law

619

affected" . 109 It should be noted, however, that although all norms of jus c og en s are enforceab le erga omnes not all e rg a om nes obligation s arejus cogensP? IV. EXAM PLES OF JUS COGENS 111

Although Article 53 of the Vienna Convention provides some guidance to the identification of jus cogens nevertheless "elevation" of norms of intemationallaw to the status of jus cogens is not an easy task. There are obvious risks in overuse of the notion and consequently attempts to do so often attract criticism.!" This is particularly so when, for example, attempts are made to exhaustively list entire treaties as being j us cogens. "? In fact, as has been stated "more authority exists for 109

1. Brownlie, supra note 2, Glossary.

110

For examp le, in 1949 the IeJ con sidered that the international subjectivity of the United Nations Organization was opposable erga omnes, that is as between all States and not only the Members of the Organization. By this statement the Court recognized the separate international existence of internati onal organizations as being subjects of international law, but in doing so, did not intend to create or recognize an existing peremptory norm . See, Reparation fo r Injuries suffe red in the Service ofthe United Nations , Advisory Opinion of II April 1949, ICJ Reports ( 1949), p. 185. See also the Nuclear Tests Cases, where in 1974 the ICJ considered that unilateral statements made by the French authorit ies that France would not carry out new nuclear atmo spherics tests in the South Pacific Ocean were erga omnes, that is, directed towards the international community: Nuclear Test Case (Australia v. France), Judgement of20 December 1974, ICJ Report s (1974), p. 253, para . 50 and Nuclear Test Case (New Zealand v. France), Judgement of 20 December 1974, ICJ Report s (1974 ), p. 457, para. 52.

III

Apart from these brief example s, I will consider primarily the impact and presence of jus cogens in the field of international humanitarian law.

112

See, for example, A. D' Amato , ' It' s a Bird, It's a Plane, It' s Jus Cogens' ; 6 Connecticut Journal of International Law, 1990, I. D' Amato stated that such overuse of the concept has resulted in the promotion "to the status of supernorm" of seemingly limitless numbers of rules of international law and human rights law. He stated that "[t [he sheer epheme rality of jus cogens is an asset, enabling any writer to christen any ordinary norm of his or her choice as a new j us cogens norm , thereby in one stroke investing it with magica l power." D' Amato also criticized the identification of what he referred to as a "gaggle of substantive norms" and the claim "that the entire body of human rights norms are norms of j us cogens" by K. Parker and L. B. Neylon, in 'Jus Cogens: Compelling the Law of Human Rights' , 12 Hastings International and Comparative Law Review, 1989, p. 411.

1I3

Ibid. See also, J. Sztucki , supra note 9, p. 82, wherein he refers to 39 treaties which are stated by various authors (including Berber, Von der Heydte and Quadri ) to be treaties contrary to jus cogens and in doin g so criticises such analyse s.

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the category of jus cogens than exists for its particular content . .."114 Nevertheless it is possible to give some examples of norms which have been considered as peremptory in nature. I begin with the examples put forward by the International Law Commission in its final report to the Vienna Conference. As noted above , the International Law Commission decided against the inclusion of specific examples of jus cogens in the draft article forwarded to the Vienna Conference. Its reasons were the following: First, the mention of some cases of treaties void for conflict with a rule of jus cogens might .. . lead to misunderstanding as to the position concerning other cases not mentioned in the article. Secondly, if the Commission were to attempt to draw up, even on a selective basis, a list of rules of international law which are to be regarded as having the character of jus cogens, it might find itself engaged in a prolonged study of matters which fall outside the scope of the present articles. I 15 It did however include in its report examples put forward by certain of its members, "by way of illustration [as being], some of the most obvious and best settled rules of jus cogens in order to indicate by these examples the general nature and scope of the rule contained in the article'l.!" In this way, it is suggested that it managed to illustrate, without recommending that specific examples should be included in the final article, how it hoped the concept would be interpreted. Specific examples!'? included were: (1) Principles of the Charter of the United Nations prohibiting the unlawful use of force; 118 (2) international laws that prohibit the performance of any other act criminal under international law; and (3)

114

T. Brownlie , supra note 2, pp. 516-517 .

1I5

Vol. II, ILC Yearbook (1966), p. 248.

116

Ibid.

117

118

As seen above, these examples largely reflect the principles and purposes of the United Nations, as set out in Articles I and 2 of the Charter of the United Nations . Article 2.4 of the Charter of the United Nations . As for States not member s of the United Nations, Article 2.6 provides that "[t]he Organization shall ensure that States which are not Members of the United Nations act in accordance with [the] principles [set out in Article 2] so far as may be necessary for the maintenance of peace and security." However, this has been referred to as "a task of the Organization and does not create legal obligations for nonmember States." K. Zemanek , supra note 90, p. 231 (footnote omitted) .

International Peremptory Norms and International Humanitarian Law

621

international laws that oblige States to cooperate in the suppression of certain acts such as trade in slaves, piracy or genocide.l'" It is noteworthy that both Lauterpacht and Fitzmaurice in their respective reports had also attempted to define or provide examples of peremptory norms of internationailaw. Lauterpacht in his first report provided as examples the prohibitions against privateering and slavery in the Declaration of Paris of 1856 and the Slavery Convention of 1926 respectively .P' Quoting McNair he explained his interpretation of the impact of jus cogens on treaties: "It is believed that a treaty between two States the execution of which contemplates the infliction upon a third State of what customary international law regards as a wrong is illegal and invalid ab initio:'?' Fitzmaurice in his report in 1958 referred generally to norms concerning the international protection of individuals, the prohibition of wars of aggression and the "hypothetical" convention containing the agreement of a State not to interfere "in case [another State] should command its vessels to commit piratical acts in the high seas" .122 He concluded by stating that it was "not possible . .. to state exhaustively what are the rules of international law that have the character of jus cogens, but a feature common to them, or to a great many of them, evidently is that they involve not only legal rules but considerations of morals and of international good order". 123 Other examples can be drawn from remarks made by delegates during the Vienna Conference. For example, the Italian delegate, Mr. Maresca, referred to rules of an absolute character being those which "protected the human person"

119

These examples largely reflect those initially mentioned in the second report by Waldock in 1963. This report progressed from giving particular examples of jus cogens to being more general. See Vol. II, ILC Yearbook (1963) pp. 52 et seq. More general examples which expanded the proposed interpretation beyond consideration of acts that constitute crimes under intemationallaw were treaties violating human rights, the equality of States or the principle of self determination. See, A. Cassese, 'Commentary to Article 1, Paragraph 2 of the Charter', in J-P Cot, and A. Pellet, La Charte des Nations Unies (1985), p. 54: "Il ne faut pas oublier un autre grand merite des Nations Unies: celui d 'avoir progressivement transforme un postulat poLitiqueet une norme programatoire qui l'in corporait - J'article 1, paragraph 2 - en un des principes juridiques fundamentaux de La Communaute internationaL, dotes de La force juridique speciale propre au jus cogens:'

120

Vol. II, ILC Yearbook (1953) , pp . 154-155.

121

Ibid., p. 154.

122

Vol. II, ILC Yearbook (1958) , p. 40 .

123

Ibid., pp. 40-41.

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and "ensured the maintenance of peace and the existence and equality of States" . He stated that this was an example of jus naturalis which has its original source in what he referred to as "mankind's awareness of the law" and "the conscience of mankind" .124 Examples of acts or treaties permitting such acts considered by delegates at the Vienna Conference as being contrary to norms of jus cogens were: acts violating certain human rights norms, such as acts contrary to certain laws of war, colonialism and racial discrimination.I" Finally, acts contrary to fundamental norms of the international community, such as the principle of the freedom of the high seas, were considered by the Polish delegation as being in violation of a norm of jus cogens.!"

V. EMERGING NORMS OF JUS COGENS

127

Although the previous section has attempted to illustrate briefly certain examples of norms of international law which have been considered peremptory, it is important to recall that international law is in a constant state of evolution . This must also mean that new norms of jus cogens may in theory develop .128 The evolution of jus cogens is referred to in the Vienna Convention in terms of the emergence of new peremptory norms of general international law and is specifically regulated by Article 64:

Emergence of a new peremptory norm of general international law (jus cogens)

If a new peremptory norm of general international law emerges, any existing

treaty which is in conflict with that norm becomes void and terminates .

124 125

126 127

128

NCONF. 39/11 (1968) p. 311.

Lebanon and Poland, Ukraine and Uruguay respectively. See A/CONF. 39/11 (1968), pp. 297,302,322,303 respectively. Ibid. , p. 302.

In considering this issue the International Law Commission simply referred to it as "the logical corollary" of its more detailed analysis and proposal regarding existing jus cogens. In fact, only four paragraphs were included in the final Report . Vol. II, ILC Yearbook (1966), p. 261.

J. Paust, 'The Reality of Jus Cogens', 7 Connecticut Journal of International Law (1991) , 81, at p. 83: "[I]t is subject to birth, growth , other change, and death , depending upon patterns of expectation and behaviour that are recognizably generally conjoined in the ongoing social process."

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It is not intended in this article to analyse in the context of emerging norms, either the differences between termination and invalidity of legal norms or to determine how and when what was validly born can become void.!" Nor do I intend to examine if it would be sufficient to consider emergingjus cogens as plainly as one of the cases of termination of treaties. However, I will briefly consider the following question : whether or not it is possible for a new peremptory norm to constitute a totally new concept having no link with pre-existing peremptory norms or whether, on tile contrary, such a norm is better described as a derogation from an existing peremptory norm. As discussed, there is no legislature in the international community. How then can new concepts of jus cogens be "created"? The International Law Commission pointed out that "a modification of a rule of jus cogens would to-day most probably be effected through a general multilateral treaty".130 By analogy, this could also be applied with regard to the emergence of new norms of jus cogens . Similarly, such norms could emerge through the recognition of a new rule of customary international law which is considered as being peremptory. As a result, in theory it appears that it would be possible for a new peremptory norm to constitute a totally new concept having no link with a pre-existing peremptory norm as long as it was accepted and recognised by the international community as a whole as such . With regard to derogation from an existing peremptory norm , it is not so clear. Application of the principle ex injuria non oritur jus means that the continuous violation of an existing rule of jus cogens cannot lead, through such violation, to its modification. P' However, as has been discussed principles of ju s cogens can be drawn from both customary international law and treaties. In theory it is always possible for both a new treaty to derogate from an existing treaty and a new rule of

129

130

131

Vol. II, ILC Yearbook (1966), p. 261: "Although the rule operates to deprive the treaty of validity, its effect is not to render it void ab initio, but only from the date when the new rule of jus cogens is established: in other words it does not annul the treaty, it forbids its further existence and performance." Vol. II, ILC Yearbook (1966), p. 248. It is recalled that general treaties (indeed all treaties), are subject to the rule pacta tertiis and are not binding erga omnes simply because there is a majority (even a large majority) of States that are parties. However, as has been stated, the principles contained in some are nevertheless binding on third parties as a result of customary law (for example, rules of the United Nations Convention on the Law of the Sea related to the maritime areas) but even in those cases they are not necessarily rule s of jus cogens. The principle that no benefit can be received from an illegal act See , O . Lissitzyn, Menton Conference, p. II and E. Suy, Lagonissi Conference, p. 112.

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customary international law to derogate from an existing rule, if the will of States so dictates. In these circumstances, by derogation from an existing rule of jus cogens contained within custom or treaty, in theory the new rule, treaty (or provision within the treaty) could amount to jus cogens. Again, this would only arise if either the new treaty or customary rule is accepted and recognised by the international community as a whole as being a rule of jus cogens. In practice , however, it is most unlikely if not impossible that this would ever arise . This is primarily because of the very nature of these principles of jus cogens. In particular I refer to the fact that norms of jus cogens are recognised as being fundamental and general in nature, and the fact that they only reached this status having first been recognised as a whole as being norms from which no derogation is permitted, and which can only be modified by a subsequent norm of general international law of the same character. In these circumstances, it is very unlikely in practice that derogation would ever occur. Consequently, it is the case that an emerging norm ofjus cogens will probably only ever be recognised if it takes the form of a totally new concept, which is accepted and recogni sed by the international community as a whole.

VI. THE INVALIDITY OF TREATIES VIOLATING JUS COGENS A final issue to consider in this general analysis is the impact of j us cogens on a treaty which is considered to be in violation thereof. As norms of jus cogens have been identified as being norms "accepted and recognized by the international community of states as a whole as . . . norm[s] from which no derogation is permitted" it must follow that there will be a specific impact on a treaty which is found to be in violation of an identified norm. After considerable debate and discussion at the International Law Commission , it was finally concluded that a treaty which conflicts with a peremptory norm of international law is void if and because its object is identified as being illegal. P? A treaty which is void because of such illegality

132

Lauterpacht spoke in 1953 about the "performan ce" of the treaty (Vol. II, lLC Yearbook (1953) , p. 154); Fitzmaurice stated that it was essential to the validity of a treaty that it should be in conformity with or not contravene, or that "its execution" should not involve an infraction of principl es of jus cogens. (Vol. II, ILC Yearbook (\958), p. 26); Waldock referred to a treaty's "obj ect or its execution" (Vol. II, ILC Yearbook (\963), p. 52). In the International Law Commission Report to the Vienna Conference it was stated that "a treaty is void at the time ofits conclusion by reason of the fact that its provisions are in conflict with an already existing rule of jus cogens." Sec Vol. II, ILC Yearbook (1966), p. 248.

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terminates independently of the will of the parties to the treaty - it is considered invalid ipso jure ab initio. 133 Articles 53 and 64 of the Vienna Convention (above) therefore provide as a general principle that a treaty is or becomes void if it conflicts with either an existing peremptory norm or an emerging peremptory norm, respectively. However, a finding that a treaty is void perhaps many years after it has been entered into will obviously have an impact on any acts/agreements etc., performed in reliance on its terms .' >'For the following reasons , although the Vienna Convention contains a general provision regulating the consequences of the termination of a treaty both under its own provisions or in accordance with the Convention itself (Article 70) it was decided that invalidity through conflict with a peremptory norm merited its own specific provision. The International Law Commission in particular considered that in relation to nullity of a pre-existing norm, this was a special case of nullity. The question which arises in consequence of the invalidity is not so much one of the adjustment of the position of the parties in relation to each other as of the obligation of each of them to bring its position into conformity with the rule of jus cogen s.P' Similarly, it stated that termination "by reason of .. . conflict with a new rule of ju s cogens .. . is a special case of termination" . 136 It stated that "the rules laid down in Article 66, paragraph I [of the draft, Article 70. I of the Vienna Convention] are applicable in principle'tF' However, it felt that because the current Article s 53 and 64 were "special cases arising out of the application of a rule of jus cogens" they should be grouped in their own article. It also felt that such a specific article gave

133

134

135 136

137

Vol. II, ILC Yearbook (1966) , p. 266. Fitzmaurice believed that a treaty contrary to jus cogens could be applied inter partes, provided that no prejudice was caused to third States. The effect would be the unenforceability of the treaty. Vol. II, ILC Yearbook (1958) , p. 28. Article 69 (I) of the Vienna Convention provides, as a general principle with regard to the consequences of the invalidity of a treaty, that "[aJ treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force." Vol. II, ILC Yearbook (1966) , p. 266.

Ibid. It also stated that this was a special case of invalidity since the invalidity does not operate ab initio. Ibid. (Emphasis added) .

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added emphasis to the distinction between the original nullity of a treaty under article 50 [of the draft, article 53 of the Vienna Convention] and the subsequent annulment of a treaty under article 61 [of the draft, article 64 of the Vienna Convention] [. .. ] Having regard to the misconceptions apparent in the comments of certain Government s regarding the possibility of the retroactive operation of these articles, this additional emphasis on the distinction between the nullifying effe ct of article 50 and the terminating effect ofarticle 61 seemed to the Commission to be desirable.l" This distinction is very important given the different legal consequences of a finding that a treaty is void by reason of conflict with either an existing or new peremptory norm. The International Law Commission in particular stressed the need to emphasise the fact that a treaty validly born must be found to have produced valid consequences. It is suggested that although such a treaty may terminate as a result of emerging jus cogens it does not, in our view, become void, such that it is found to have been without legal effect. However, it is clear that certain of the legal consequences and the rights and obligations flowing from the treaty which come into conflict with the new norm cannot be maintained . The consequences of the invalidity of a treaty conflicting with a peremptory norm are regulated by Article 71 of the Vienna Convention:

Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law I. In the case of a treaty which is void under article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in

reliance of any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law. 2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty: (a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties cre-

ated through the execution of the treaty prior to its termination; provided

138

Ibid.

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that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law. As can be seen, the article is two-pronged. It regulates first, nullity of a treaty ab initio as being contrary to pre-existing peremptory norms (a treaty which is void under Article 53 of the Vienna Convention) and second, nullity of a treaty ex nunc as conflicting with emerging peremptory norms (a treaty which becomes void under Article 64 of the Vienna Convention). In the case of the latter, it is provided that recognition of the new peremptory norm does not render the treaty invalid ab initio. That is, it is not the case that the emerging jus cogens will have retroactive effect - the treaty in question is still considered to have been valid and to have produced valid consequences.P? However, any "right]s] obligation[s] or legal situation[s)" may only be maintained "to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law" .

VII. JUS COGENS AND INTERNATIONAL HUMANITARIAN LAW A. Introduction The recognition of norms of jus cogens, norms from which any derogation is forbidden, is particularly important in the area of international humanitarian law. As has been pointed out: In the law ofwar there was a great need for absolute norms for the safeguarding of the minimum fairness, orderliness, civilization and humanity of warfare and to prevent superfluous devastation.v'"

139

140

"[A] right, obligation or legal situation valid when it arose is not to be made retroactively invalid; but its further maintenance after the establishment of a new rule of jus cogens is admissible only to the extent that such further maintenance is not in itself in conflict with that rule" (Vol. II, ILC Yearbook (1966) , p. 267) . "[Nlous pouvons dire qu 'il n 'existe , ii notre connaisance, pas un seul cas oii, sur la base des prescriptions d'une quelconque regie generale coutumiere survenue par la suite. on ait conclu ii la responsabilite d 'un Etat pour unfait qui n 'etait pas internationalment illicite au moment ou it a ere commis:" R. Ago , 'Rapport sur la Responsabilite International de l 'Etat', in: Scritti sulla Responsabilita internazionalle degli Stati, II, 1 (1986), p. 804 .

L. Hannikainen, supra note 22, p. 211.

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These absolute norms have been gradually identified over the years and it is now the case that the prohibition of genocide together with certain rules of international humanitarian law are considered almost unanimously to be peremptory norms of international law. It is this classification which will now be considered.

B. International Humanitarian Law in general It serves to briefly consider the development of international humanitarian law, to properly place identification, if possible, of peremptory norms therein. The term "humanitarian law" is in fact "a relatively recent one"!" despite the fact that the concepts (formerly referred to as part of the laws of war (jus in bello)) have been recognised for a very long time.142 International humanitarian law as it exists today broadly includes what is now commonly referred to as The Hague and Geneva laws.!? At the end of the nineteenth century a concerted effort was made on the international plane to codify the laws of war. The Hague International Peace Conferences held in 1899 and 1907 had the most important impact and resulted in, inter alia, the promulgation of The Hague Conventions II (1899) and IV (1907)144 together with those related to the prohibition of certain weapons. These became known as the laws of The Hague .!" The laws of Geneva encompass the four

141

142

143

144

145

G. Abi-Saab in 'The Specificities of Humanitarian Law', in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Martinus Nijhoff Publishers, 1984), p. 265. The concepts are very old. Predecessors to "modern " humanitarian law are for example , the Spanish scholastics and the Catholic Church Councils. During the middle ages, the former developed theories of the bellumjustum and the latter those prohibiting the slavery of prisoners of war (III Lateran Council, 1179) or the use of weapons considered as too "lethal and hateful for God" (II Lateran Council, 1139). See H. Nussbaum, A Concise History ofthe Law ofNations (Spanish Edition , undated) , p. 22 (original 1954). For a discussion on this question , see the Judgement by the Appeals Chamber of the ICTY: Prosecutorv. Delalic eta!' , Case No.IT-96-21-A,Judgement, 20 Feb. 2001, paras 131 et seq. The Hague Convention (II) with respect to the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, The Hague, 29 July 1899 and The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, The Hague, 18 October 1907. It is noted that other regulations and conventions are also included in the laws of The Hague.

International Peremptory Norms and International Humanitarian Law

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Geneva Conventions of 12 August 1949 146 together with the protocols adopted on 10 June 1977. 147 Finally, there is the Convention on the Prevention and Punishment of the Crime of Genocide (1948) . Although it is arguable that this convention cannot be considered strictu sensu to be part of the "laws of armed conflicts" it is without doubt applicable. 148 This is not least because Article I provides that genocide "whether committed in time of peace or in time of war" is a crime under international law for which individuals shall be tried and punished.!" In 1996, the ICJ specifically re-affirmed the importance of the place held in international law by rules of international humanitarian law. As a general principle, it initially stated : It is undoubtedly because a great many rules of humanitarian law applicable

in armed conflict are so fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it in its Judgment

146

(I) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field ; (II) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; (III) Geneva Convention relative to the Treatment of Prisoners of War; (IV) Geneva Convention relative to the Protection of Civilian Persons in Time of War. In the view of the ICJ "the Geneva Conventions are in some respects a development, and in other respects no more than the expression" of the fundamental general principles of humanitarian law. The Nicaragua case, para. 218. The ICRC Commentary to Geneva Convention IV states : "[t]he Geneva Conventions form part of what are generally called the laws and customs of war, violations of which are commonly called war crimes". See J. Pictet (ed .), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, (International Committee of the Red Cross , Geneva, 1958). As of January 2001,189 States are parties to the Geneva Conventions. Only two United Nations members . Marshall and Nauru are not parties. 147

148

Protocol I: Protocol Additional to the Geneva Conventions of 12August 1949, and relating to the Protection of Victims of International Armed Conflicts . Protocol II : Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts . These Protocols have received a more limited number of ratifications by comparison to the Geneva Conventions. As of January 2001, 157 States are parties to Additional Protocol I and 150 States are parties to Additional Protocol I!. In his report to the Security Council with regard to the establishment of the ICTY, the Secretary-General included in his list the Genocide Convention as comprising "part of conventional international humanitarian law which has beyond doubt become part of international customary law . .. applicable in armed conflict." Report ofthe Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (/993), UN Doc. 5/25704,2 May 1993 (Secretary-General's Report) , para. 35.

149 Emphasis

added.

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of 9 April 1949 in the Corfu Channel case (I.C.l. Reports 1949, p. 22) , that The Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.150 Considering the history of these rules and the road to recognition as being fundamental to the respect of the human person and "elementary considerations of humanity," the ICJ mentioned in particular the so-called "de Martens Clause" contained in the preambles to The Hague Conventions of 1899 (II) and 1907 (IV) .151 It referred to the fact that a "modem version ... is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows : "In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience't.tv It stated that at a very early stage humanitarian

150

Legality ofthe Threat or Use ofNuclear Weapons : Advisory Opinion, ICJ Reports (1996) (the "Nuclear Weapons case"), para. 79. In a decision by the Appeals Chamber of the ICTY, the Appeals Chamber stated that "[sjtate practice shows that general principles of customary international law have evolved with regard to internal armed conflict also in areas relating to method s of warfare .. . Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rule s to internal conflicts; rather, the general essence of those rules , and not the detailed regulation they may contain , has become applicable to internal conflicts." Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, paras 125-126. For a different opinion see T. Meron , 'The Continuing Role of Custom in the Formation of International Humanitarian Law' , 90 AJIL (1996), pp. 238-249.

151

This provides as follows : "Until a more complete code of the laws of war has been issued , the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience" . This clause was included in the Preamble of the 1899 Hague Convention II respecting the Laws and Customs of War on Land and in the 1907 Hague Convention IV on the same matter, See, in general , A. Cassese, 'The Martens Clause: Half a Loaf or simply Pie in the Sky?' Vol. 11, No. I, EJIL (2000 ), pp. 187-216.

152

The Nuclear Weapons case , para. 78.

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law "prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives". It referred to the fact that the Nuremberg International Military Tribunal had already found in 1945 that the humanitarian rules included in the Resolutions annexed to the Hague Convention IV of 1907 "were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war".'>' Finally, it referred to the most recent confirmation on the international level of the status which the international community has accepted should be accorded to certain rules of international humanitarian law, by referring to the Secretary-General's Report and his remarks concerning the subject-matter jurisdiction of the ICTY: In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law. .. The part of conventional humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied by: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respect ing the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1949; and the Charter of the International Military Tribunal of 8 August 1945. 154 One can note the following findings of the IC] in respect of the Genocide Convention: The Convention was manifestly adopted for a purely humanitarian and civilizing purpose . .. its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a

153

154

Trial of the Major War Criminals, 14 November /945 -1 October 1946, Nuremberg, 1947, Vol. I, p. 254, referred to in the Nuclear Weapons case, para. 80. The Nuclear Weapons case, para . 81, citing the Secretary-General's Report , paras 34-35 . As cited below, jurisprudence of both the Trial Chambers and the Appeals Chamber of the ICTY has re-affirmed these findings .

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common interest, namely, the accomplishment of those high purposes which are the raison d ' etre of the Convention . 155 There can be little doubt that as a general rule the provisions contained in the conventions and regulations referred to above have attained the status of customary international law, while certain provisions are generally considered to reflect elementary and fundamental considerations of humanity . The Statutes of the ICTY and ICTR provide for prosecution for violation of the following customary rules of international humanitarian law: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity.s" In the context of this article, it remains to be seen whether or not one may also automatically elevate these conventions or provisions as a whole to the status of peremptory norms.

C. Rules of International Humanitarian Law which can be classified as Jus Cogens

Article 2 of The Hague Convention IV of 1907 provides: The provisions contained in the Regulations referred to in Article I, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention. This clause , known as the si omnes or general participation clause, was based on the principle of reciprocity and was designed to avoid disadvantages in the military balance. It provided that the convention and annexed regulations were not applicable unless all the parties to the conflict were equally bound by their terms. This meant that they would not even apply between those who were parties to the convention if there were other belligerents involved who were not. The Geneva Conventions, on the other hand, have been described as reflecting "a constant endeavour to extend their application to the widest possible circle of

155

Reservations to the Convention on the Prevention and Pun ishment ofthe Crime ofGenocide: Advisory Opinion, 28 May 1951, in 10 Reports (1951), p. 23. This case also confirms that the Genocide Convention is considered to be part of customary international law. See also the Secretary-General's Report , paras 35 and 45.

156

See generally, Prose cutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995.

International Peremptory Norms and International Humanitarian Law

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States and conftictual situations, and to reduce to a minimum the legal grounds for avoiding such an application't.!" Paragraph 3 of common article 2 to the four Geneva Conventions "expressly refute[s]" the si omnes clause!" and provides as follows : Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. This provision which came over forty years later was a clear and welcome departure from the more limited terms of Article 2 of the aforementioned Hague Convention . The important difference is the fact that it provides that the provisions of the four Geneva Conventions will remain applicable as between the parties even if one of the belligerents in a conflict is not a party to them .P? However, the provision remains limited largely because the principle of reciprocity is preserved. As a result , hypothetically and based on the express terms of the provisions, if a power involved in a particular conflict who is not a party to the Geneva Conventions neither formally accepts to be bound by their provisions (for example, by way of a formal or explicit declaration), nor even to apply its provisions (for example, by in practice accepting their terms), the Geneva Conventions will not on the face of it apply to govern actions committed by them.I'" Despite this very hypothetical scenario, one must recall what has been described as the overall humanitarian aim of the Geneva Conventions. Indeed, the Appeals Chamber for the ICTY recently described the object and purpose of the Geneva Conventions as being "to guarantee the protection of certain fundamental values common to mankind in times of armed conflict" while describing the conventions

157

G. Abi-Saab, supra note 141, p. 267 (footnote omitted).

158

Ibid.

159

Article I of the four Geneva Conventions provides: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." That is they undertake to ensure respect regardless of considerations of reciprocity.

160

We state "hypothetically" as this analysis is of course purely theoretical. This is because as has been seen almost all members of the United Nations are parties to the conventions. It is also because many of the terms of the conventions in any event are considered to constitute customary intemationallaw. See Judgement by the Appeals Chamber of the ICTY in Prosecutor v. Delalic et al., Case No. IT-96-21-A, Judgement, 20 Feb. 200 I, paras 112-113.

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as "fundamental humanitarian conventions't.!" This humanitarian object and purpose is particularly reflected within certain provisions. Examples are the prohibition against the taking of reprisals's- and the prohibition on any party absolving itself of any liability incurred in respect of breaches of the "grave breaches" provisions.r" A further example is the specific protection offered to the category of persons defined by the conventions as "protected persons". The conventions provide that these persons "may in no circumstances renounce in part or in entirety the rights secured to them" by the conventions or by special agreernents.lv' In addition, the conventions expressly prohibit agreements inter partes which could "adversely affect the situation of protected persons" or, "restrict the rights" which the conventions confer on them. 16 5 Further protection is guaranteed by Article 60 (5) of the Vienna Convention which reads as follows: Paragraphs I to 3 [on the conditions of termination or suspension of treaties as a consequence of their breach] do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. This general clause applies to all treaties . Nevertheless, it is suggested that the protection offered by the conventions and the above provisions is technically not absolute. This is because, within the terms of each convention there is provi sion for States to avoid application of their terms through denunciation. Although it is also provided that such denunciation "shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated" and that denunciation "shall in no way impair

161

162

163

Ibid., para . 113. For example, Article 46 (Convention I) provides : "Reprisals against the wounded, sick, personnel , buildings or equipment protected by the Convention are prohibited." See also, Articles 47 (Convention II), 13 (Convention Ill) and 33 (Convention IV) and 20 and 51 to 56 of Additional Protocol I . Common articles 51 (Convention I), 52 (Convention II), 131 (Convention Ill) and 148 (Convention IV).

164

Common articles 7 (Conventions I, II, Ill) and 8 (Convention IV).

165

Common articles 6 (Conventions I, II, Ill) and 7 (Convention IV).

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the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience",166 nevertheless, the fact remains that denunciation of the conventions is possible. Similarly both the Geneva Conventions and the Genocide Convention can be subject to reservations, provided that these reservations do not go against "the object and purpose" of the treaties. 167 The question arises as to how treaties, which can in theory be denounced' < and which may in theory be subject to reservations can be considered as a whole as ju s cogens? One author has stated the following: A number of factors in the 1949 Geneva Conventions make them appear particularly to satisfy criteria drawn f rom the perspective ofj us cogens: - Many provisions stipulate the protection of persons in absolute terms. Each Convention contains a provision prohibiting reprisals against the persons protected by the Convention . (The provision in Convention IV does this only in a limited scale). - The Conventions prohibit the conclusion of special agreements which would adversely affect the situation of protected persons or would restrict their rights as defined by the Conventions. Thus, derogations by treaties inter se which would have adverse effects are prohibited. - The Conventions deny the validity of any renunciations of their rights by protected the persons. - The Conventions single out the grossest violations as "grave breaches", and prohibit the parties from absolving any other party of any liability

166

167

168

Common articles 63 (Convention I), 62 (Convention II), 142 (Conve ntion Ill ), 158 (Convention IV) and 99.1 of Protocol I. The purpose of these dispositions is to maintain the protected persons within the same parameters until the conclusion of military operations and in the case of civilians, until their "release, repatriation and re-establishment." Article 158, Geneva Convention IV.

Reservations to the Convention on the Prevention and Punishment of the Crime ofGenocide: Advisory Opinion, 28 May 1951, in ICl Reports (195 1), pp. 15 et seq. Also Article 19(c) of the Vienn a Convention. It is the case that they have already been subject to several. In the Nuclear Weapons case, para. 82, the ICl noted in genera l that the denunciation clauses in codification instrume nts of the conventions codifying international humanitarian law had (to that date) never been used.

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incurred in respect of the "grave breaches" . There is a strong presumption that at least the prohibitions of the "grave breaches" of the Conventions are peremptory. - The Conventions have received a nearly universal degree of ratification ." ? Although it has been sugge sted that there is a strong presumption that at least the "grave breaches" provisions of the four Geneva Conventions have gained peremptory status, it has also been acknowledged that many ofthe norms contained within the conventions do not fulfil the criteria which are necessary for such a norm to be considered asjus cogens. v? But, as seen above, norms of jus cogens are essentially general in nature. They are defined as norms which are "accepted and recognized by the international community of States as a whole as a norm from which no derogation is pcrmiued'" !" It is as a result rather difficult to identify specific norms within treaties which are peremptory in nature unless they are very general. This applies equally in the identification of norms of jus cogens in the area of international humanitarian law and in particular, with regard to this analysis, to the four Geneva Conventions of 1949 and the Genocide Convention of 1948. With regard to the four Geneva Conventions of 1949 it is suggested that it can only be said that the principles and prohibit ions underlying paragraphs ( I) and (2) of common article 3 are truly peremptory in nature . Those other provisions in, for example the Geneva Convention s and the Additional Protocol s (together with other instruments in international humanitarian law) which reflect the principles contained within common Article 3 can also be considered peremptory in nature. Common article 3 is general in nature, it lays down the "elementary considerations of humanity" described by the IC] which derive "from established custom , from the principles of humanity and from the dictate s of public conscienc e." Common article 3 reads as follow s: [E]ach party to the conflict shall be bound to apply, as a minimum, the following provisions: (I) Persons taking no active part in the hostilities, including members of armed

forces who have laid down their arms and those placed hors de combat by

169

170

171

L. Hannikainen, supra note 22, pp. 605-6 (footnote omitted ). The same author also recognises that "the number of norms fulfilling all the criteria is not necessarily very small, even if limited." Ibid. , p. 606. Article 53 of the Vienna Convention.

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sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons : (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.t'?" (b) taking of hostages ; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. Although common article 3 refers to "[c]onflicts not of an international character" it is now generally accepted that its terms are applicable in situations of both internal and international armed conflicts. The ICRC Commentary to common article 3 of Geneva Convention IV stated, inter alia, that" .. . the object of the Convention is a purely humanitarian one ' " and that it merely ensures respect for the few essential rules of humanity which all civilised nations consider as valid everywhere and under all circumstances and as being above and outside war itself'. 173 In the commentary to each Geneva Convention, it stated that it "[r]epresent[s] .. . the minimum which must be applied in the least determinate of conflicts, its terms

172

173

It is recalled that for example with regard to (I) (a), a recent decision by a Trial Chamber of the ICTY confirmed that the prohibition against torture in both times of peace and during an armed conflict constitutes a norm of jus cogens which is therefore non-derogable, See Prosecutor v. Kunarac et al., Case No. IT-96-23- T & IT-96-23/1-T, 22 Feb. 2001 , para . 466 . Also Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement, 16 Nov. 1998, para. 454 and references therein. Also, T. Meron, 'International Criminalization of Internal Atrocities' , 89 AJIL (1995) , p. 554, at p. 571. ICRC Commentary to common article 3, in Jean Pictet (ed.) , Commentary : IV Geneva Convention Relative to the Protection ofCivilian Persons in Time ofWar, (International Committee of the Red Cross, Geneva, 1958), p. 44 .

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must a fortiori be respected in the case of international conflicts proper, when all the provisions of the Convention are applicable . For the greater obligation includes the lesser, as one might say". 174 The IC] later interpreted it as follows: Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called "elementary considerations of humanity". 175 Finally, the Appeals Chamber for the ICTY, in a decision rendered on 20 February 200 I relied on this interpretation by the IC] and confirmed that common article 3 is applicable in international armed conflicts. It stated: It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical .':" It is therefore suggested that the principles underlying common article 3 of the four Geneva Conventions satisfy the criteria set out above for it to be designated a

174

175 176

ICRC commentary to common article 3, in for example , Jean Pictet (ed.), Commentary: II Geneva Convention for the Am elioration of the Condition of Wounded, Sick and Shipwre cked Memb ers ofArmed Forces at Sea, (International Committee of the Red Cross, Geneva, 1960), p. 35. This comment also appears in the commentary to the three other Geneva Conventions . The Nicaragua case , para. 218, citing the Corfu Channel case , ICJ Report s (1949) , p. 22. Prosecut or v. Delalic et aI., Case No. IT-96-21-A, Judgement, 20 Feb. 2001, para. ISO. This Judgement confirmed the decision in: Prosecutor v. Dusko Tadic , Case No. IT-94-I -AR72 , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, where the interpretati on of common article 3 in the Nicaragua case was accepted . The Appeals Chamber found that "at least with respect to the minimum rules in common article 3, the character of the conflict is irrelevant" (para. 102).

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norm of jus coge ns. It lays down fundamental standards which are applicable at all times, in all circumstances and to all States and from which no derogation at any time is permitted. As was stated, it "sets forth a min imum core of mandatory rules [and], reflects the fundamental humanitarian principles which underlie international humanitarian law as a whole, and upon which the Geneva Conventions in their entirety are based. These principles, the object of which is the respect for the dignity of the human person, developed as a result of centuries of warfare and had already become customary law at the time of the adoption of the Geneva Conventions because they reflect the most universally recognised humanitarian principies". 177 Finally, with regard to the Genocide Convention, the IC] stated in its Advisory Opinion in 1951 that there could be little dispute over a finding that the crime of genocide was universally prohibited. It stated that: [t]he origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as "a crime under international law" involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and result s in great losses for humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December l lth, 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recogni zed by civilized nations as binding on States , even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required "in order to liberate mank ind from such an odious scourge" (Preamble to the Convention).' ?" However all relevant article s to the Genocide Convention save Articles I and 2 have reservations.' ?' It is accordingly suggested that one can only find as being truly peremptory in nature, the principles "underlying the Convention [and] recognized by civilized nations as binding on States, even without any conventional obligation" because their denial "shocks the conscience of mankind ." Consequently,

177

178

179

Prosecutor v. Delalic et al., Case No. IT-96-21-A, Judgement, 20 Feb. 2001 , para. 143. Reservations to the Convention on the Prevention and Punishment ofthe Crime ofGenocide, Advi sory Opinion, ICJ Reports (1951), p. 23. See T. Meron, supra note 172, at p. 556 . The United State s has however filed an "understanding" with regard to Article 2 of the Genocide Convention.

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it is suggested that in terms of the Genocide Convention its provisions constitute ju s cogens only with regard to the principles enunciated in Articles I and 2 of the same. Articles I and 2 read as follows: Article J

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) KilIing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

VIII. CONCLUSION As can be seen, it is in fact difficult to identify norms of international law which can be defined truly as peremptory. Based on a strict application of the definition discussed in this article often a principle which could be prima facie considered as peremptory, in fact fails to satisfy all criteria . In the context of international humanitarian law, it is suggested that this task of identification is no less difficult. Although the Geneva Conventions as a whole have been described as setting forth fundamental principles of humanitarian law, nevertheless it is suggested that many of the provisions cannot truly be described as jus cogens. Based on a strict interpretation of the concept , it is suggested that only those principles underlying common article 3 and as outlined above can be identified as having reached the relevant standard . Similarly, with regard to the Genocide Convention, it is suggested that only the principles underlying articles I and 2 of the convention can be truly considered peremptory in nature.

29

DIALOGUE FOR RECONCILIATION: A Supplementary Step For Truth Commissions Francisco Orrego Vicuna

International law has witnessed in the past decades the emergence of numerous efforts to deal with the violation of human rights and international humanitarian law in the context of both civil strife and outright international wars. Some of these efforts have been international in character while some others have been essentially devised under domestic law, but all of them have an acute interest and implications for the international community at large.

I. PROGRESS AND SHORTCOMINGS OF INTERNATIONAL TRIBUNALS Two basic models can be identified in the context of this emerging experience. The first is the establishment of international judicial institutions to investigate, prosecute and sanction those responsible for the violation of human rights and international human itarian law. Since Versailles, Ntirnberg and Tokyo, ad hoc tribunals are a part of this effort. The most recent tribunals relating to the former Yugoslavia and Rwanda, and suggestions to follow this model in respect of Cambodi a and other countries , have also come to confirm this trend .' The creation of the Inter-

1

Sean D. Murphy : 'Progress and Jurisprudence of the International Crimin al Tribunal for the Former Yugoslavia' , Am erican Journal of International Law, Vol. 93, 1999,57-97; Lyal S. Sunga : The emerging system ofinternational criminal law, 1997.

L.C. Vohrah et al. (eds.), Man's Inhumanity to Man , 641-654 ©2003 Kluwer Law International. Printed in the Netherlands.

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national Criminal Court has strengthened this model by providing for a permanent international court in the field.' The difficulties associated with this first model, however, cannot be ignored. It is first an approach which can be justified and utilized in very specific and sometimes unique circumstances. But even then a number of questions have come up as matters of concern for scholars and judges alike. Issues such as the sources of information, the arrangements for receiving witness depositions, the scope of the crimes envisaged and the very even-handed approach of the institutions established, have all been the subject of recent comments .' The International Criminal Court has not been exempt from these difficulties , particularly in respect of the extent of the principle of complementarity and how it will be applied in practice, or the extent of the guarantee of non-retroactivity in the light of interpretations that do not appear to be quite consistent with it, or even the powers of the prosecutor, among many other issues that have been raised as needing a fine-tuning so as to avoid potential misuses.' Recent developments in respect of the exercise of criminal extraterritorial jurisdiction in this field, often relying on interpretations of international or domestic law that are not always shared, have further complicated the outlook for this first model and introduced in its discussion confrontational views.' While international or foreign judicial efforts might contribute to the sanction of those responsible , there is another aspect of the matter which is difficult to grasp under this model. The more detached the handling of a case becomes from the national context in which it originates the less it will be able to contribute to the establishment of historical truth or the necessary national reconciliation. In some instances such efforts may even lead to the opposite result, that is to make transitions to democracy more difficult and reconciliation more distant.

2

3

4

5

G. Sluiter : 'An International Criminal Court is Hereby Established', Netherlands Quarterly ofHuman Rights , Vol. 16, 1998,413--420; Mahnoush H. Arsanjani : 'The Rome Statute of the International Criminal Court, American Journal of International Law , Vol. 93, 1999,57-97; William Bourdou : La Cour Pen ale lnternationale, 2000 . Jonath an I. Charney : 'Progress in International Criminal Law?', Am erican Journal of International Law, Vol. 93, 1999,452-464. David J. Scheffer: 'The United States and the International Criminal Court ' , American Journal ofInternational Law , Vol. 93, 1999, 12-22. See generally Manuel Perez Gonzalez y Montserrat Abad Castelos : 'Los delitos contra la comunidad interna cional en el Cod/go Penal Espaiiol", Anuario da Facultade de Direito da Universidade da Coruiia , No.3, 1999,433-467.

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II . DEVELOPING TRUTH AND RECONCILIATION COMMISSIONS

Because of the need to take into account such national circumstances and contexts, a second model has been recently developed. This is the model of the truth and reconciliation commissions," Investigation commissions had been known under international law for a long time,?but this other approach is novel in that it seeks "(I) to establish an historic record; (2) to obtain justice for the victims ; (3) to facilitate national reconciliation; and (4) to deter further violations and abuses"." Over fifteen truth and reconciliation commissions have been established over the past ten years." Some have been established under the auspices of the United Nations 10 and some others have been the outcome of domestic arrangements. I I The composition of these commissions range s from a complete international membership as in the case of EI Salvador," to a full national membership as in Chile" or South Africa,'! not excluding mixed national and foreign participation."

6

Richard J. Goldstone : 'Justice as a tool for peace-making: Truth Commissions and International Criminal Tribunals , New York University Journal 0/ International Law and Politics, Vol. 28, 1996,485-503; Jonathan Allen: 'Balancing Ju stice and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission' , University ofToronto Law Journal , Vol. 49,1999,315-353.

7

Michael P. Scharf: 'The case for a Permanent International Truth Commission' , Duke Journal of Comparative and International Law, Vol. 7, 1996,375-410, at 377.

8 9

10

11

12

13

14

15

Ibid., at 379.

Priscilla B. Hayner: 'Fifteen Truth Commmissions - 1974 to 1994: A Comparative Study', Human Rights Quarterly, Vol. 16, 1994,597-655 . Scharf, sup ra note 7, at 377 , with reference to the Commissions on EI Salvador, Guatemala and Somalia. Hayner, supra note 9, at 600-604, with reference to the Commissions on Bolivia, Argentina and Uruguay among other cases. Thomas Buergenthal: 'The United Nations Truth Commission for EI Salvado r' , Vanderbilt Journal ofTransnati onal Law, Vol. 27,1994,497-544. JOSe Zalaquett: 'Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations', Hastings Law Journal, Vol. 43, 1992,425; Jorge Correa S.: 'Dealing with Past Human Rights Violations: The Chilean Case After Dictatorship' , Notre Dame Law Review, Vol. 67, 1992, 1455. Paul van Zyl: 'Dilemmas of Transitional Justice: The Case of South Africa 's Truth and Reconciliation Commission', Journal of International Affairs , Vol. 52, 1999.647-667 . Scharf, supra note 7, at 377, with reference to the Commission for Guatemala.

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All of these commissions have had an ad hoc character as they have been established to deal with specific national processes, mainly in the context of transition from authoritarian regimes to democracy. An interesting proposal has been also made to create a permanent international truth commission ." Such an institution might have many of the advantages noted above in terms of historical records, reconciliation, justice and deterrence, but may lack perhaps the one crucial element that is at the heart of the new approach: not to be detached from the national realities and circumstances with which it has to deal. The functions of these commissions have depended largely on the mandate with which they have been entrusted and this mandate is of course most varied. One common denominator, however, has been that the commissions have generally been restrained to deal with the question of abuses of human rights under the outgoing regime and seldom with the broader issue of the circumstances in which these regimes came into place, or have done so only marginally. As will be discussed below these circumstances are usually much more complex than commonly thought and admitting responsibility for them is many times decisive of the final objective of reconciliation. Neither have the commissions dealt with the international factors having an incidence in the problems investigated ; these factors involve many times delicate political matters and the participation of major powers. 17 The kind of issues with which the commissions have had to deal has led to interesting comparative studies." The question of naming names has been a particularly difficult one. While the Commission on EI Salvador decided to do S01 9 that on Chile took the opposite stance as it was felt that due process would not have been well served by this approach.w Compen sation for the victims and their families has also been a question dealt with by a number of commissions, as in Chile and EI Salvador."

16

Supra note 7.

17

Hayner, supra note 9, at 637 .

18

Supra notes 7, 9.

19

Buergenthal, supra note 12, at 519 et seq.

20

21

Jose Zalaquett, in I Report of the Chilean National Commission on Truth and Reconciliation, Translation by Philip E. Berryman, 1993, at xxxii , and comments by Scharf, supra note 7, at 385.

Supra notes 13 and 12, respe ctively.

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III . TRUTH, AMNESTY AND INTERNATIONAL LAW

Perhaps the most delicate issue of all is that relating to sanctions, prosecution and the role of amnesties. Here again the experience of truth commissions is most varied. Civil sanctions, such as barring offenders from public office, were recommended by the EI Salvador Commission and they appear not to be a problem in themselves . In Argentina, Yugoslavia or Rwanda, truth commissions led to either national or international prosecution.P and to this extent such commissions can be considered supplementary of judicial efforts. In most cases, however, the work of the truth commissions has been accompanied or followed by amnesties." In Chile the work of the truth commission led the government and ultimately the courts to reinterpret the meaning of the amnesty law in force. It is no doubt true that amnesties have a built-in element of impunity, but this is so if justice is conceived in a rather narrow sense of prosecution and punishment. If justice is also associated with truth, reparation, reconciliation and deterrence, and ultimately with the very thought of living in a democratic society under the rule of law, then the fact that amnesty might be granted does not have the negative connotation that it could have if considered in isolation. This is particularly so when transitions to democracy are the outcome of a negotiated settlement, often a very difficult one and occasionally one that also involves the ending of a civil war. In this context, the granting of amnesty can well make the difference between continuation of strife and the reestablishment of democracy, above all when political actors involved in such a transition have enough power to accept or reject a particular arrangernent." Truth commissions have been described as the "third way?> that results from a compromise providing for a degree of justice, albeit not a complete one, and not meaning necessarily a widespread prosecution that could undermine a transition to democracy. The political stability reached through such arrangements has to be secured both nationally and internationally. In the first case, this means that commitments made are to be respected and cannot be changed at the will of one side.

22

Scharf, supra note 7, at 378.

23

Ibid., with referen ce to the Commissions on Somalia, Guatemala and South Africa, among other cases.

24

Elin Skaar: 'Truth Commissions, trials-or nothing ?: Policy options in democratic transitions ' , Third World Quarterly, Vol. 20,1999,1109-1128.

25

van Zyl, supra note 14, at 648.

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In the second case, it means that amnesty should not be ignored by foreign courts or governments, or for that matter by international tribunals , because it would then be confined to a pure domestic arrangement. It is on this point that domestic experiences, however independent they may be, have a close connection with international law. Increasingly the argument is being made that amnesty laws are contrary to the basic treaties on human rights or contrary to specific treaties in the field of humanitarian law and other matters." This approach seeks in essence to nullify the effects of amnesty both internationally and domestically. In this view, a national judge who could apply an amnesty statute to given crimes and offences would be prevented from so doing because of it being contrary to international law and some of the treaties in force for that country. While this is not the occasion to discuss such issue, it must be noted that this question is a matter of opinion. The view expressed above is one possible interpretation, often a far-fetched one, which is not self-evident in the light of those treaties and provisions. The opposite interpretation is also possible, particularly because it does not appear to be the function of international law to reshape domestic arrangements that are essential for the attainment of peace and democracy, even less so if this could lead to reopen civil strife. On the contrary, international law is expected to foster democracy and political stability. If the latter were not to be the result it then means that there is something quite wrong with the principle of international law as stated in that argument. This connection between amnesty laws and international law is still more complex. If it is assumed that international law regards amnesty laws as incompatible with some of its basic provisions and a State enacts such a law an issue of State responsibility arises, but in tum an exemption from responsibility might simultaneously arise in terms of the operation of the state of necessity." A more intriguing connection will inevitably arise between the implementation of amnesty laws in the context of the operation of truth and reconciliation commis-

26

27

For a discussion of these views see Scharf, supra note 7, at 396-397. See also Santiago Corcuera Cabezut: 'Las leyes de amnistta en el derecho internacional de los dere chos humanos' ;Juridica, Anuario del Departamento de Derecho de la Universidad lberoamericana , Mexico, 1999,23-38. The author greatly benefited from a discussion on this point held at the University of Seville Law School with Professors Juan Antonio Carrillo Salcedo, Marfa del Carmen Marquez Carrasco, Joaquin Alcaide Fernandez and Susana Rueda, among other, on 16 November 2000.

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sions, on the one hand, and the principle of complem entarit y under the Statute of the International Criminal Court, on the other hand. While it might be argued in this respect that complementarity refers only to the jurisdiction of domestic courts and not to that of truth and reconciliation commissions, in actual fact these commissions are called to intervene when there is a need to supplement the work of the courts or in substitution of their regular functions as ju stified by the circumstances. Article 17 of the Rome Statute does not exclude the interventi on of other bodies in carrying out the tasks of investigation and prosecution. It follows that it can also be argued that the work of truth and reconciliation commi ssions should be accorded priority under the principle of complementarity.

IV. THE DIFFICULT ATTAINMENT OF RECONCILIATION: CHILEAN EXP ERIENCES

Many of the commi ssions established refer to both truth and reconciliation. The connection between these two elements, however, is not self-evident either. While it is true that reconciliation without truth is most difficult to achieve, it has been rightly commented that this assumption is "forcefully rebutted by those instances where the revelation of truth leads to greater division, acrimony and bitterness. While truth may lead to reconciliation, it is a myth to presume it automatically does so . .. Not only is the relationship between the pursuit of truth and the attainment of reconciliation by no means clear-cut, but the concept of ' reconciliation' is equally difficult to define"." The experience of the Chilean Commi ssion of Truth and Reconciliation quite clearly reveals these difficulties. Although the Commi ssion was compo sed of distinguished personalit ies its membership lacked the participation of key actors, including the representation of the victims of abuses and of the armed forces. Because of this fact alone its effect on the process of transition would be limited. Moreover, its mandate covered only the abuses that had taken place under the period of the prior government, but not the overall historical period in which these events were inserted and that related to a much longer period of time. While the Commission itself undertook to expl ain this broader setting, it only discussed the abuses included in its mandate . Thi s proved to be also a serious limitation on its effects. The evidence that reconciliation would not be achie ved solely under this scheme

28

van Zyl, supra note 14, at 662 .

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became brutally patent a few weeks after the publication of the report of the Commission with the assassination of the leader of the opposition." In the light of these findings and other evidence prosecution of offenders of human rights abuses was encouraged, particularly by means of a new interpretation of the amnesty law. In the light of this interpretation before amnesty can be applied there must be a complete investigation of the facts, eventually leading to the identification of those responsible." The interpretation until then prevailing excluded such investigations and any case relating to the period covered by the amnesty was to conclude in exculpation. Simultaneous with this interpretation , however, legislation was passed authorizing the President to grant pardons to offenders serving prison terms for their participation in terrorist activities. Pardons were accordingly granted while in other cases sentences were reduced or commuted by exile. It is beyond doubt that the intention behind these measures, some of which had the support of the opposition, responded to a genuine desire to facilitate a peaceful transition, but the fact is that the aggregate of policies pursued would inevitably be perceived as unbalanced and hence not conducive to reconciliation. The arrest of General Pinochet in the United Kingdom" polarized Chilean society to the extreme and brought unexpected obstacles to a smooth transition to democracy and to the orderly conduct of international relations . Reconciliation was becoming every passing day a more distant reality. Clearly realizing the dangers for political stability and continuing economic development entailed in such a situation, the government decided to undertake a major political initiative in convening a "Table of Dialogue on Human Rights",32 while also actively pursuing the

29 30

31

32

Hayner, supra note 9, at 622 . For an endorsement of this interpretation by the President of Chile, see the letter addressed by Mr. Patricio Aylwin to the Supreme Court on 4 May 1991. See generally Hazel Fox: 'The First Pinochet Case: Immunity of a Former Head of State', International and Comparative Law Quarterly, Vol. 48, 1999,207-216; Fox: 'The Pinochet Case No .3', International and Comparative Law Quarterly, Vol. 48, 1999,687-702; Eileen Denza : 'Ex Parte Pinochet : Lacuna or Leap ?', International and Comparative Law Quarterly, Vol. 48, 1999, 949-958; and contributions to the discussion In Re Pinochet in the light of developments in Spanish, French, Belgian and British courts by Maria del Carmen Marquez Carrasco, Joaqufn Alcaide Fernandez, Brigitte Stem , Luc Reydams and Christine M. Chinkin, in American Journal ofInternational Law, Vol. 93, 1999, 690-711. Edmundo Perez Yoma: 'Discurso de Constitucion de la Mesa de Dialog o sobre Derechos Humanos, dicta do por el Ministro de Defensa Na cional', 21 August 1999, in .

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return of Senator Pinochet to Chile so that his situation would be handled by Chilean courts under Chilean law. In this manner reconciliation would again become attainable. Both initiatives ended successfully after having to surmount formidable obstacles.

V. DIALOGUE ON HUMAN RIGHTS : A NEW PROMISING APPROACH TO RECONCILIATION

The initiative on the Table of Dialogue came, almost a decade later, to supplement the work of the Truth and Reconciliation Commission by adding the real elements that made reconciliation possible . First, its composition included the missing representation in the Commission. Lawyers for the victims of human rights abuses, some of whom were victims themselves, high-level representatives of all the branches of the armed forces, human rights experts, scholars , representatives of the principal religious faiths and selected high-level government ministers and officials came together in secluded meetings so as to reach a firm understanding on reconciliation, built on confidence and mutual respect. The Final Declaration of the Table of Dialogue" begins with two most extraordinary admissions of responsibility. It is first established that beginning in the 1960s Chilean politics were affected by a process of political violence that actors of the time either provoked or were unable to control, with particular reference to the grave fact that some supported violence as a method of political action. This is the first time that the sectors affiliated with the governments of the time admit such a responsibility. This social and political conflict, it is next stated, led to the military intervention of 1973, an event in respect of which the Declaration recognizes that there are legitimate differences of opinion. The second acceptance of responsibility is equally unique. The Declaration firmly condemns the grave violations of human rights carried out by agents of State entities under the military government, and expresses with equal strength the determination not to permit the repetition of these events. This is also the first time that representatives of the armed forces, with the express endorsement of their high command, admit such abuses and the responsibility for them. Political violence on the part of opponents to the military regime is equally condemned.

33

Declaracion de la Mesa de Didlogo sobre Derechos Humanos, 12 June 2000, in .

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On the basis of these two most difficult steps, the Table of Dialogue calls for reconciliation and understanding in terms of excluding political violence and human rights abuses from Chilean society, relying on the rule of law, the use of force only by those institutions entrusted to do so under a democratic system and the eradication of access to power by means other than the exercise of democracy. There is here a clear-cut condemnation of both revolutionary violence and military intervention as means of acceding to power, thereby evidencing an even-handed approach by the Table of Dialogue to the sources of confrontation and violence in society. These statements by the Table of Dialogue were not of a rhetorical kind but were followed by specific mechanisms. The first such mechanism follows a declaration of deep concern for the unsolved fate of those who were detained and later disappeared, aiming at the finding of their remains or at the very least the clarification of the pertinent circumstances and events. It is expressly stated that in carrying out this effort there is not only a duty toward the families and relatives of the victims , but also a need for society to acquire conscience about events that must not be repeated in the future . Under this mechanism the Armed Forces and the National Police undertake the commitment to carry out all possible efforts to obtain the information necessary for such findings, while at the same time the Declaration accepts the statement of the Armed Forces high command to the effect that such institutions do not have such information but are willing to cooperate in its finding. This issue has particular importance as many had assumed that the Armed Forces had the pertinent information and were not willing to provide it, but such was not the case and it has been now accordingly accepted . Implicitly there is here also an assertion that the Armed Forces were not responsible as such for abuses of human rights but this was the work of individuals and other agencies. A period of six months from the enactment of the required legislation is provided to this end, which may be renewed for another six months at the request of the President of Chile. An essential aspect of this mechanism is that relating to the confidential nature of the provision of information. Thi s aspect protects both the person providing information and also that receiving it, who will not be under an obligation to reveal the sources. This confidential nature, like that applying to some professional activities , was essential to secure the necessary flow of information. A specific legislative amendment was introduced to allow for the operation of this confidential procedure." The Declaration, however, makes a specific warning about

34

Chile, Law No. 19.687, Official Journal, 6 July 2000.

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the fact that those who suppress information might be found guilty of perjury or obstruction to justice, like those who give false information can be guilty of defamation. Both the Armed Forces and the religious institutions participating in the Table of Dialogue were called to set up the pertinent channels for obtaining information, each having done so without publicity. The information gathered is to be forwarded to the President, who in tum shall make it available to the courts, most probably in an organized manner. It follows from the above that neither the agreements of the Table of Dialogue nor their implementation affect the normal work of the courts but are conceived as a supplementary measure. This result is important as the courts will be able to use the information received in cases which are actually submitted to their decision . While the names of offenders or informants shall not be revealed, this information is crucial in order to reach a determination about the fact of the death of the victims . In the absence of firm evidence on this fact the courts have been operating under an assumption to the effect of considering that the victims are actually kidnapped. As the latter is interpreted as a crime of continuing execution, it has been held that it prevents the application of amnesty until the crime has ceased." Upon evidence of death the crime will be subject to the possible application of amnesty. The issue of the compatibility of amnesty with international law will no doubt again be raised before the Chilean courts in this context and different interpretations are likely to be proposed in the terms outlined above . The possibility of applying justice with mercy has also been suggested as a feasible alternative." Also the Catholic Church organized an important liturgical ceremony where pardon was asked for both political violence and human rights abuses, thus signaling the need to achieve genuine reconciliation.37 It is in the light of these developments that the courts will have to carefully consider the meaning of the reconciliation agreements reached and the end result which the process purports to achieve with the support not only of the participants in the Table of Dialogue but also of the government, congress and main churches .

35

36

37

For this interpretation see, for example, the indictment issued by an investigating judge in the process called "caravan of death" on 10 June 1999. Jose Zalaquett: 'Justicia con Clemencia' , La Tercera, 21 Sept. 2000 ; Jose Zalaquett: ': Son la verdad y la justicia principios irreconcialiables de la transicion chilena?', La Tercera, 28 Sept. 2000. Reported in El Mercurio, Santiago, 25 November 2000, p. A I .

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The Dialogue undertaken not only provides for practical mechanisms leading to reconciliation but also for long-term approaches seeking to promote and strengthen the understanding of the need to respect human rights. To this end there is a specific call to develop the teaching of both international human rights law and international humanitarian law. Therein lies the long-term solution for many of the problems through which Chilean society has transited .

VI. IMPROVING THE SUCCESS OF TRUTH AND RECONCILIATION COMMISSIONS

The conclusions that can be reached in the light of this recent experience are of importance for the succes s of Truth and Reconciliation Commissions, particularly in order to attain the objective of reconciliation. First, it is quite evident that such commi ssions must include at the appropriate time the relevant actors in a spirit of mutual confidence and understanding. Second, the mandate of the commissions must cover the whole relevant historical period and not just a fraction of it so as to bring into light the aggregate of responsibilities . Selectivity in this respect might be politically convenient but is selfdefeating. Third, the government and entities responsible for the implementation of the recommendations or agreements reached must be particularly careful in carrying out a balanced and even-handed policy. Again any policy favoring one side to the detriment of the other leads to self-defeating results . Fourth, the terms agreed for the transition to democracy must be also strictly observed by both domestic and international actors, as the efforts to change such terms will normally lead to a step backwards in the process. This is still more so if the changes are not the result of further political understandings and new historical settings, but the outcome of direct or indirect foreign intervention or determinations. Fifth, it is also important that for the success of the effort undertaken the relevant political actors admit their respective responsibilities in the wrongdoings of the past. Seldom do historical responsibilities fall upon only one sector of society. Sixth, in the context of an attitude of genuine reconciliation specific mechanisms of redress must be agreed to and implemented, always thinking in satisfying the concerns of both sides to the equation.

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Seventh, and most important, international law as applied and interpreted by both domestic , foreign and international courts , governments and other entities, must be approached in terms of reaching positive results and not of creating obstacles to the success of the process . To this end it must not be used or seen to be used as a tool for political activism but as the legal framework that aims at securing peace, democracy and stability.

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LE NOUVEAU PROJET DE LA C.D.I. SUR LA RESPONSABILITE DE L'ETAT POUR FAIT INTERNATIONALEMENT ILLICITE: REQUIEM POUR LE CRIME? Alain Pellet

Le jeudi 31 mai 2001, la Commission du Droit international a adopte, par consen sus, en seconde lecture , Ie projet d'articles sur la responsabilite de I'Etat pour fait internationalement illicite.' Ce faisant , elle mettait un point presque final? a une saga qui remonte aplus de soixante dix ans, lorsque , en 1927, Ie Comite d' expert s const itue par la Societe des Nations decid a d'inscrire Ie sujet a l'ordre du jour de la Conference de codification de 1930, avec Ie peu de succes que I'on sait.' Quant a la C.D.I. elle-meme, eIle a inscrit Ie sujet a son ordre du jour en 1955,4 pour n'en achever I'examen que quarante-six ans et cinq rapporteurs speciaux' plus tard.

I

2

3

4

5

II s'agit d'un nouveau titre . Auparavant, Ie projet s'intitulait: "Responsabilite des Btats". Ce changement tardif mais bienvenu a Ie merite de c1airement distinguer, dans les langues autre s que I'anglais, la responsabilite (responsibility) pour fait illicite de la respon sabilite (liability) pour les con sequences prejudiciables des activites qui ne sont pas interdites par Ie droit international. Par sa resolution 56/83 du 12 decembre 2001 , I' Assernblee generale des Nations Unies pris note du projet, qui est annexe 11 la resolution.

Cf, Charles Rous seau , Droit internati onal public, tom e I, Introdu ction et sources, Sirey, Paris, 1971, p. 358 ou Alain Pellet, "Rernarques sur une revolution inachevee: Ie projet d' articles de la C.D .1. sur la responsabilite des Btats", A.F.D.I. 1996, p. 7. V. Ie resume des premieres etap es de I'examen du suj et in C.D.I., Annuaire 1969. vol. II, pp. 268-243, pars . 64-84 . Successivement Frederico V. Garcia Amador (1955-1961), Roberto Ago (1963-1979), Willem Riphagen (1980-1986), Gaetano Arangio-Ruiz (1987 -1996) et Jam es Crawford (1997 -200 I) .

L.c. Vohrah et al. (eds.), Man 's Inhumanity to Man , 655-684 ©200 3 Kluwer Law International. Printed in the Netherlands.

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Parmi les multiples problemes rencontres lors de cette entreprise de longue haleine, la question de l'unite ou de la pluralite des regimes de responsabilite est sans doute l'une des plus difficiles de celles a laquelle la Commission a df repondre. II n' est pas douteux qu' a cote des regles generales applicables a la situation creee par la survenance d'un fait internationalement illicite, existent des regimes de responsabilite particuliers qui soit se substituent aces regles," soit les completent ou y derogent partiellement. Mais beaucoup plus delicate et controversee est la question de savoir si certaines violations, par nature, emportent (de lege lata), ou doivent emporter (de lege ferenda) , des consequences specifiques qui s'ajoutent a celles de droit commun ou les remplacent. Implicitement, Ago avait repondu par l' affirmative en faisant adopter par la Commission en 19767 Ie celebre article 19 du projet d'articles, confirme en 1996,8 dans les deux cas, sans opposition , et aux termes duquel: 1. Le fait d'un Btat qui constitue une violation d'une obligation internationale est un fait internationalement illicite quel que soit I'objet de I' obligation violee , 2. Le fait illicite qui resulte d'une violation par un Btat d'une obligation si essentielle pour la sauvegarde d'interets fondamentaux de la communaute internationale que sa violation est reconnue comme un crime par cette communaute dans son ensemble constitue un crime international. 3. Sous reserve des dispositions du paragraphe 2 et d' apres les regles du droit international en vigueur, un crime international peut notamment resulter: a) d'une violation grave d'une obligation internationale d'importance essentielle pour Ie maintien de la paix et de la securite internationales, comme celie interdisant I'agression;

6

7

8

Et I' on peut parler alors - mais alors seulement - de regimes se suffisant aeux-rnemes (selfcontained regimes) ; sur cette notion, v, not. Bruno Simma, "Self-Contained Regimes", N.Y.B.I.L., 1985, pp. 111-136, ou Gaetano Arangio-Ruiz, Troisieme rapport sur la responsabilite des Etats , in CD.I., Annuaire 1992, vol. 11, Iere partie, p. 27, pars . 84-88 . V. Ie cinquierne rapport de Roberto Ago sur la responsabilite des Btats, in CD.I., Annuaire 1976, vol. 11, 1ere partie, pp. 26-57 , pars. 72-155 , et Ie rapport de la Commi ssion , ibid., 2eme partie , pp. 89-113 .

Le projet d'articles sur la Responsabilite des Etats adopte en premiere lecture par la CD.I. est reproduit dans Ie Rapport de la Commission sur sa 48eme session , in CD.I., Annuaire 1996, vol. 11,2eme partie, pp. 62-70 .

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b) d'une violation grave d' une obligation intemationale d' importance essentielle pour la sauvegarde du droit des peuples a disposer d'eux-mernes, comme celie interdisant l'etablissement ou Ie maintien par la force d'une domination coloniale; c) d' une violation grave et aune large echelle d' une obligation intemationale d' importance essentielle pour la sauvegarde de I' etre humain, comme celles interdisant l'esclavage, Ie genocide, l'apartheid; d) d'une violation grave d'une obligation essenticlle pour la preservation de I'environnement humain, comme celles interdisant la pollution massive de l'atmosphere ou des mers . 4. Tout fait intemationalement illicite qui n'est pas un crime intemational conformement au paragraphe 2 constitue un delit international." Adoptes vingt ans plus tard, les articles 51 a 53 du projet de 1996 tiraient de ce concept fecond des consequences pour Ie moins decevantes,'? au point que I' on en a tire argument pour "tuer Ie crime", II comme si, du fait que la montagne avait accou che d'une souris, il fallait araser la montagne . . . Ce n'est heureusement pas ce que fait Ie projet adopte en seconde lecture en 2001: si Ie mot "crime" en est soigneusement banni, la chose perdure (I); et si les consequences qui en sont explicitement tirees demeurent, aux yeux de certains, assez anodincs, Ie projet , grace aux "clauses de sauvegarde" dont il est emaille, preserve raisonnablement l'avenir (Il),

9

Ibid., p. 64.

10

V. ibid., pp. 75-78.

II

V. par exemple I' article extremernent critique de Robert Rosenstock, "An International Crimina Responsibility of States?" in C.D.I., Le droit international ii l'aube du XXIeme siecle Rejlexions de codificateurs, Nation s Unies, New York, 1997, no. de vente: ElF 97.VA, pp. 263-285, not. p. 284; v. aussi Ie premier rapport de James Crawford sur la responsabilite des Etats , 1998, A/CNA/490/Add.l , par. 51 et Add. 3, pars . 86 et 92, et Julio Barboza, "State Crimes : A Decaffeinated Coffee" in L'ordre juridique international. un systeme en quete d 'equite et d 'universalite - Liber Amicorum Georges Abi-Saab, Nijhoff, La Haye, Londre s, Boston, 2001, pp. 357-375 . »-

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I. LE MOT ET LA CHOSE ("CRIMES" OU "VIOLATIONS GRAVES"?)

A. Qu'importe Ie mot ...

A la lecture du projet de 200 I, une chose saute aux yeux: Ie mot "crime" n' y apparaft pas unc seule fois. Davantage meme: la premiere partie, consacree au "fait intemationalemcnt illicite" ne contient aucune disposition qui, de pres ou de loin, pourrait s'apparcntcr a I' ancien article 19. Dans un article co-signe avec deux de ses assistants, Ie professcur Crawford donne de cettc disparition une explication globalement convaincantc sur le fond, a defaut de I'etre sur le plan de la terminologie: "La premiere partie procede de l'idee que les faits intemationalcment iIlicites d'un Etat formcnt une seule ct meme categoric et que les criteres qui s'appliquent a ces faits (en cc qui conccme notamment I'attribution et les circonstanccs excluant l'Illiceite'!") sont indifferents a toute distinction entre responsabilite 'delictuelle' et 'penale'"." Ce vocabulaire temoigne cependant de l'mcomprehension - ou du refus de comprehension? - du Rapporteur special de la C.D.I. de la portee reelle qu' Ago et les redacteurs du projet adopte en premiere lecture donnaicnt au mot "crime" qui n'avair , dans leur esprit, aucune connotation "penale". Comme I' a fort bien montre Ie professeur Marina Spinedi, la Commission n' avait nullement I'intention "to attach to these acts forms of responsibility similar to those provided in the penal law of modem domestic legal systems" .14 Mais, malgre les indications tres c1aires en ce sens donnees par la C.D.1.dans Ie commentaire du projet d'article 19,15 M. Crawford n'cn a pas moins maintenu fermement son opposition au mot "crime" en se fondant, bien a tort, sur des analogies avec Ie droit interne" alors meme qu'il reconnaissait expressement que: "[Ijidee qu'en droit

12

13

14

15 16

Sur ce second point, I' auteur de la presente contribution nourrit quelques doute s - v. infra, in fine . James Crawford, Pierre Bodeau et Jacqueline Peel, "La seconde lecture du projet d'articles sur la responsabilite des Btats de la Commission du Droit international", R.G.D.I.P. 2000, p. 93\. "International Crimes of State: The Legislative History" in J.H .H. Weiler, A. Casse se and M. Spinedi eds ., International Crimes of States : A Critical Analysis of the ILC' s Draft Article 19 on State Responsibility, W. de Gruyter, Berlin-New York, 1989, p. 52. V. I'analyse de Georges Abi-Saab, "The Uses of Article 19", EJ.IL 1999, pp. 344-346. V. par exemple son premier rapport sur la responsabilite des Btats, AlCN.4/490 Add . 3, par.

8\.

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internationalla responsabilite n'est ni 'civile' ni 'penale' mais simplement 'internationale' n' est guere contestee" .17 Les rapporteurs speciaux de la C.D .I. y jouent, assurement, un role preeminent, du moins dans Ie cadre des sujets dont ils ont la charge I 8 et il y avait peu de chance que la Commission passe outre I' opposition decidee de son Rapporteur special, fflt-elle fondee sur un argument discutable. D'autant plus que l'opposition de M. Crawford au mot "crime" rejoignait celie de plusieurs Etats l 9 et d'une partie de la doctrine" et que, si Ie terme a ses vertus, il presente aussi des inconvenients. Au nombre des premieres, il y a surtout l'usage - un usage sur lequel s'etait fondee la Commission en 1976, et que son projet avait, ason tour renforce, Comme Ie montre Ie commentaire de I' ancien article 19, plusieurs conventions utilisent Ie mot "crime" pour designer les atteintes les plus graves a I'ordre juridique international: Ie genocide, l'apartheid, l'agression, etc," et, aussi critique qu 'il ait pu etre, Ie mot est devenu d'usage courant dans la litterature internationaliste. En outre, il a Ie merite de stigmatiser les comportements qu'il designe , ceux qui portent, en effet, les atteintes les plus graves "aux interets fondamentaux de la cornmunaute internationale". A I'inverse, cette terminologie a, indiscutablement, une connotation penale et, des lors, trompeuse car, decidement, la responsabilite internationale n' est ni civile, ni penale, mais sui generis, propre au droit international public, comme la responsabilite administrative est particuliere au droit public interne (et meme si, dans les deux cas, les analogies avec Ie droit civil sont sans doute plus prononcees que

17 18

19

20

21

Ibid., Add. 1, par. 60 (iv). Cf Alain Pellet , "La codification du droit de la responsabilite internationale - Tatonnemcnts et affro ntements" in L'ordre juridique international, un systeme en quete d'equite et d 'universalite - Liber Amicorum Georges Abi-Saab, Nijhoff , La Haye, Londres, Boston , 2001 , pp. 301-302 et "Conclusions generales" in S.F.D.I., Colloque d' Aix-en-Provence, La codification du droit international, Pedone , Paris, 1999, p. 335. Cf C.D.I., Responsabilite des Etats - Commentaires et observations recus des gouvernements, NCN.4/488 et Add. 1 11 3, et le resume qu'en donne J. Crawford, premier rapport sur la responsabilite des Etats, 1998, A/CN .4/490/ Add.I, pars . 52-60 .

V. notamment Robert Rosenstock, "An international Criminal Responsibility of State s?", in C.D.I., Le droit international a l'aube du XXeme siecle, N.V., New York, 1997, pp. 276-284 ou Julio Barboza , "State Crimes : A Decaffeinated Coffee" in L' ordrejuridique international, un systeme en quete d'equite et d 'universalite - Liber Amicorum Georges Abi-Saab , Nijhoff, La Haye, Londres, Boston , 2001 , pp. 358-359.

V. C.D.I., Annuaire 1976, vol. II, 2eme partie , p. 110, par. 59 du commentaire.

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celles que I' on peut faire avec le droit penal). Avrai dire, cette connotation penaliste n'est nullement intolerable s'agissant des crimes eux-memes qui menacent la cohesion de la societe intemationale dans son "noyau dur", celui qui permet de parler a son sujet de "comrnunaute", ffit-elle limitee a un tres petit nombre de valeurs essentielles. En revanche, qualifier de "delit" tout fait intemationalement illicite qui n'est pas un crime, comme Ie faisait le paragraphe 4 de I'ancien article 19, etait eminemment critiquable: meme s'il existe des "delits civils", le mot renvoie, lui aussi, c1airement, au droit penal, alors meme que la cohesion de la societe intemationale n'est pas telle que I'on puisse pretendre qu'elle est interessee par la "repression" de ces faits. La violation d'un traite bilateral de commerce ne porte nulle atteinte aux interets de la "communaute intemationale dans son ensemble" - elle est une affaire bilaterale qui doit se regler, et ne peut se regler que, dans un cadre purement bilateral; toute actio popularis est ici exclue . A cet egard, le dictum de la C.U. dans I'affaire du Sud-Ouest africain demeure aujourd'hui tout aussi actuel qu'en 1966.22 II ne I'est pas s' agissant des crimes, com me I' a reconnu la Cour dans Ie celebre corrigendum qu'elle a apporte quatre ans plus tard a cette position trop categorique: une distinction essentielle doit . .. etre etablie entre les obligations des Etats envers la communaute intemationale dans son ensemble, et celles qui naissent vis-a-vis d'un autre Etat dans le cadre de la protection diplomatique. Par leur nature meme, les premieres concement tous les Etats. Vu I'importance des droits en cause, tous les Etats peuvent etre consideres comme ayant un interet juridique a ce que ces droits soient proteges ; les obligations dont il s'agit sont des obligations erga omnesP La dichotomie entre crimes et delits presentait le merite de faire c1airement cette distinction; elle avait l'inconvenient de renvoyer a des concepts plus familiers aux penalistes qu' aux intemationalistes. Une maniere simple de resoudre le problerne eflt pu consister a renoncer au mot "delit" (en supprimant Ie paragraphe 4 de l' ancien article 19) tout en conservant Ie

22

23

Dans son arret du 18juillet 1966,la Cour s'est refusee a"admettre une sorte d' actio popularis ou un droit pour chaque membre d'une collectivite d'intenter une action pour la defense d'un interet public . S'il se peut que certains systemes de droit interne connaissent cette notion, Ie droit international, tel qu' il existe actuellement, ne la reconnait pas" (Rec. 1966, p. 47). Arret du 5 fevrier 1970, Barcelona Traction Light and Power Cy., Fond (2eme phas e), Rec. 1970, p. 32.

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terme "crime", infiniment moins critiquable. Suivant son Rapporteur special, la Commission du Droit international s'est ralliee, sans opposition majeure, a une solution plus radicale: on ne parlerait ni de crimes, ni de delits, et ces mots qui fachent seraient remplaces par leur definition. Encore fallait-i1 ne pas "jeter Ie bebe avec I'eau du bain" et, au pretexte de consensus sur la terminologie, ne pas renoncer a un concept indispensable, seul a meme de rendre compte de la cohesion relative de la communaute internationale, aussi limitee qu 'elle soit a I'heure actuelle.

B. .•• pourvu qu'on ait la chose Dans son premi er rapport, en 1998, Ie professeur Crawford avait deploye de grands efforts pour "se debarrasser" du probleme. Paradoxalernent, il s'y affirmait Ie defenseur Ie plus convaincu de la notion de crime international de I'Etat . . , entendu dans un sens penal; et de deployer d'immenses efforts d'ingeniosite pour esquisser ce que devrait etre "un regime digne de ce nom de responsabilite 'criminelle ' de I'Etat",24 tout en reconnaissant "qu ' il faudrait beaucoup d' imagination pour satisfaire ade telles conditions en relation avec les crimes internationaux des Etats",25 pour finalement conclure ala suppression de I' article 19 (et, "par voie de consequence", des articles 51 a 53) et a I'inclusion d'une clause de sauvegarde qui indiquerait "que I'exclusion du projet d'articles de la notion de 'crime international' est sans prejudice a) du champ d' application du projet d' articles, qui continuera d' englober tous les manquements a une obligation internationale quelle que soit son origine, et b) de la notion de 'crime international d'Etat' elle-rneme et de la possibilite de la developper a I'avenir, soit a titre de sujet distinct pour la Commission soit dans Ie cadre de la pratique des organisations intemationales competentes'V" Appuyee avec empressement par les membres de la Commission qui y voyaient, non sans raison, I' occasion de remettre aux calendes un concept qu 'ils reprouvaient ou ne comprenaient pas, cette proposition etait inacceptable pour ceux qui ne pouvaient concevoir qu'un genocide d'une part, et la violation anodine d'un traite de commerce, d'autre part , fussent places sur le me me plan et soumis au meme regime juridique.

24

A/CNAI490/Add.3, par. 91.

25

Ibid., par. 92.

26

Ib id., par. 100.

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Ala suite de debats parfois passionnes" mais qui n' apporterent guere d' elements nouveaux a ceux deja largement discutes par la doctrine.P la Commission dut prendre "note du fait qu'aucun consensus ne s'etait realise sur la question du mode de traitement des 'crimes' et des 'delits' dans Ie projet d' articles et qu'Il falIait etudier plus avant les manieres possibles de regler les questions de fond qui se posaient. II a done ete convenu que: a) sans prejudice des vues de quiconque parmi les membres de la Commission, Ie projet d' article 19 serait laisse de cote pour Ie moment pendant que la Commission poursuivrait l'examen d'autres aspects de la premiere partie du projet; b) il faudrait examiner si les questions soulevees par Ie projet d'article 19 ne pourraient pas etre resolues par un developpement systematique, dans Ie projet d' articles, de notions telIes que les obligations erga omnes, les norrnes imperatives (jus cogens) et une eventuelle categorie regroupant les violations les plus graves d'obligations intemationales .. .",29 Le grave inconvenient de cette solution d'attente etait que, une fois de plus, la Commission remettait aplus tard sa decision sur la question de la dualite des regimes juridiques applicables aux faits intemationalement illicites. On risquait done de retomber dans les ornieres de la premiere lecture: Ie precedent Rapporteur special, Ie professeur Arangio-Ruiz, ayant examine les consequences des faits intemationalement iIIicites de facon indifferenciee, sans operer de distinction entre celIes des crimes d'un cote, celIes des delits de I'autre, il en est resulte un "telescopage" entre les deux regimes et de graves lacunes dans celui des crimes."

27

28

29

30

V.le resume (qui n'en traduit pas toute la fougue!) qu'en donne le Rapport de la CD.I. sur les travaux de sa cinquantierne session , 1998, Assernblee generate, Documents officiels , 53eme session , supplement no. 10 (A153/1O), pars . 283-331. Pour la tres abondante litterature consacree au crime international de l'Etat, v. J .H.H. Weiler, A. Cassese et M. Spinedi eds., International Crimes ofState - A Critical Analysis ofthe ILC's Draft Article 19 on State Responsibility, W. de Gruyter, Berlin-New York, 1989, et les etudes citees par Gaetano Arangio-Ruiz dans son Serne rapport (A1CNo4/453 et Add. I 11 3), J. Crawford, premier rapport (A1CN04/490/Add.I, note 29 et bibliographie jointe) et P. M. Dupuy, "Responsabilite et legalite" in S.F.D.I., Colloque du Mans, La responsabilite dans Ie systeme international, Pedone , Paris, 1991, note 13, pp. 268-269. Rapport de la CD.I. sur les travaux de sa cinquantieme session, 1998, Assemblee generate, Documents officiels , 53eme session, supplement no. 10 (A153/1O) , par. 331. V. Alain Pellet, "Vive Ie crime! Remarques sur les degres de l'iIlicite en droit international", in CD.!., Le droit international a l'aube du XXIeme siecle - Reflexions de codificateurs, Nations Unies, New York, 1997, no. de vente : ElF 97.Vo4, pp. 307-311 ou "Rernarques sur une revolution inachevee: Ie projet d'articles de la C.D.!. sur la responsabilite des Etats", A.f:D./. 1996, p. 24.

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Telle fut egalement la maniere de proceder de son successeur, qui attendit deux ans (et la derniere annee de son mandat) pour aborder it nouveau de front, dans son quatrieme et dernier rapport, la question des crimes internationaux de I'Btat. 31 Entre temps, la Commission avait adopte I' essentiel de son projet sans se preoccuper de l'incidence eventuelle d'un regime de responsabilite propre aux violations les plus graves du droit international. II est vrai que, I' annee precedente, en 2000, Ie Professeur Crawford avait ouvert la voie it une solution, en s'interrogeant sur la question de savoir si des "consequences supplernentaires [it celles s' attachant normalement it un fait intemationalement illicite] peuvent etre rattachees it la categoric des violations graves, ftagrantes et systematiques des obligations dues a la communaute internationale dans son ensemble"." Acette question, il repondait par l' affirmative en considerant que, "si on laisse de cote la terminologie controversee des 'crimes' , [les consequences tirees des crimes par les articles 52 et 53 du projet ado pte en premiere lecture] sont generalement acceptables .. .".33 C'etait une "conversion" partielle et deguisee au concept de crime , le mot excepte, et, sur cette base, Ie Comite de redaction adopta, it titre provisoire, les projets d' articles 41 et 42, formant le chapitre ill de la deuxieme partie du projet sur Ie "Contenu de la responsabilite internationale des Btats" et se substituant aux anciens articles 51 et 53 du projet de 1996.34 Le mot "crime" y etait soigneusement evite. Mais ce chapitre devait s'appliquer " it la responsabilite intemationale decoulant d'un fait intemationalement illicite qui constitue une violation grave par un Btat d'une obligation envers la communaute internationale dans son ensemble et essentielle pour la protection de ses interets fondamentaux "." Cette formule constituait une definition fort acceptable des crimes intemationaux de I'Btat ; on avait done la chose en se debarrassant du mot. Bien que la Commission pleniere n'eflt pas pu examiner les projets d'articles provisoirement adoptes par son Cornite de redaction, elle decida de les publier dans son rapport, en appendice au chapitre consacre it la responsabilite," afin de

31

NCNA/517, pars. 43-53 .

32

Troisieme rapport sur la responsabilite des Etats, NCNA/507/Add. 4, par. 407.

33

lbid., par. 410 .

34

Rapport de la C.D.I. sur lcs travaux de sa 52eme session, Assemblee generale , Documents officiels, 55eme session, Supplement no. 10 (N55/l0), p. 120.

35

Projct d' article 41, par. I.

36

Rapport de la C.D.I. sur les travaux de sa 52eme session, Assemblee generale , Documents officiels, 55eme session , Supplement no. 10 (A/55/1O), pp. 110-126.

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permettre aux representants des Btats d'y reagir lors des debats de la Sixieme Com mission de I' Assemblee generale. C'etait prendre Ie risque de rouvrir Ie debat sur les crimes internationaux des Etats, ce qui ne manqua pas de se produire: Ie sujet fut largement debattu et, de nouveau, Ie concept fut apremenr conteste par certains gouvernements.'? Sur la base de ces reactions, Ie Rapporteur special recommanda Ie maintien du chapitre III de la deuxieme partie tout en Ie revoyant "en profondeur"." II est difficile de considerer que c' est effectivement ce qu ' il a propose et ce qu ' a fait la Commission. Le projet d' articles definitivement adopte en 200 I ,39 ne differe en effet que marginalement de celui provisoirement adopte par son Cornite de redaction I'annee precedente, Mises a part quelques modifications purement redactionnelles, les seuls changements significatifs sont au nombre de deux : - en premier lieu, Ie titre meme du chapitre (et, par voie de consequence, Ie libelle du paragraphe ler du nouvel article 40 - qui se substitue a I'article 41 de 2000) est anouveau modifie: de "Violations graves d'obligations essentielles envers la communaute internationale dans son ensemble", on passe aux "Violations graves d'obligations decoulant de normes imperatives du droit international general"; - en second lieu , la possibilite de dommages-interets aggraves en cas de violation de ce type n'est plus evoquee dans Ie projet. Cette omission sera brievement cornrnentee ci-dessous.f En ce qui concerne I' autre innovation du projet definitif, elle est assez fondamentalement "cosmetique" . II s'agit, au fond , d'une troisieme maniere de dire a peu pres la merne chose: a cote des manquements "ordinaires" au droit international dont seules les victimes directes sont fondees a se plaindre, il existe des violations d'une particuliere gravite qui mettent en peril les interets essentiels de la communaute internationale dans son

37

38 39

40

V. Ie Resume thematique des debars, A/CNA/513, pars . 89-121 ; les oppositions les plus decidees furent celles des grands pays occidentaux, a I'exception notable de l'Italie et des pays nordiques. Quatrieme rapport, NCNA/517 , par. 53. V.le texte du projet dans Ie Rapport de la C.D.I. sur les travaux de sa 53eme session, Assemblee generate, Documents officiels, 56eme session, Supplement no. lO (N56/lO) . Ce texte est egalement annexe a la resolution 56/83 de I' Assemblee generale (v. supra, note 2). V. infra II B.

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ensemble et qui appellent des reactions specifiques de la part de tous les membres de celle-ci. Et la mention expresse des normes imperatives du droit international general dans la nouvelle redaction du chapitre III de la deuxieme partie du projet n'est pas sans avantages . Aussi discutee qu' elle ait pu etre dans Ie passe, la notion de jus cogens est, maintenant, tres generalement acceptee." Au surplus, I' approche retenue par la Commission a Ie merite de mettre en lumiere l'unicite de concept et la multiplicite de ses consequences, qui ne sauraient se limiter au droit des traites . Elle presente cependant un inconvenient: Ie projet d' articles definitivernentadopte par la C.D .I. ne definit pas ce qu'il faut entendre par "norme imperative du droit international general". De ce fait, on est ramene, implicitement mais sfirement, a celIe figurant al'article 53 de la Convention de Vienne de 1969. Celle-ci presente une triple caracteristique facheuse en ce qui concerne la responsabilite: - en premier lieu, Ie texte de 1969 definit les normes imperatives par leurs seules consequences en matiere de droit des traites, ce qui n'est pas tres rationnel dans la perspective du droit de la responsabilite internationale: cela revient a dire que lorsqu 'une regie entrainerait la nullite d'un traite contraire, sa violation appelle des consequences particulieres en matiere de responsabilite ; c' est meier inutilement des branches du droit bien distinctes;? - en deuxierne lieu, pour de nombreux auteurs , la notion de jus cogens a, a cote de son contenu "social", une dimension "logique"; elle recouvre non seulement les regles qui constituent Ie fondement , Ie ciment, de la communaute internationale, mais aussi celles sans lesquelles aucun systemejuridique

41

42

Meme la France, advers aire traditionnel du concept, au moins tel que Ie definit I' article 53 de la Convention de Vienne de 1969 sur Ie droit des traites, semble etre revenue sur ses preventions , comme Ie montrent de multiples signes, notamment les centre-propositions faites par ce pays au projet d'articles provisoirement adopte par Ie Cornite de redaction de la C.D.1. en 2000 . La France ne s'y eleve pas systernatiquernent contre les dispositions mentionnant Ie jus cogens (articles 21 et 51.d) (A1CN.4/488) . V. par exemple D. Bowett , "Treaties and State Respon sibility ", Melanges Michel Virally - Le droit international au service de la paix, de la ju stice et du developpement, Pedone, 1991, pp . 137-145; Prosper Wci!, "Droit des traites et droit de la respon sabilite" in Le droit international dans un monde en mutation - Liber Amicorum en hommage au professeur Eduardo Jimenez de Arechaga, Fundaci6n de cultura intemacional, Montevideo, 1994, pp. 523 -543 ; P.M. Dupuy, "Droit des traites , codification ct respon sabilite intemationale", A.F.D.I. 1997, p. 7-30 ou Ph. Weckel, "Convergence du droit des traites et du droit de la responsabilite intemationale", R.C .D.I.P. 1998, pp. 647-684 .

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ne serait concevable et, en premier lieu, le principe pacta sunt servanda; il est clair que seules les premieres sont pertinentes en ce qui conceme le regime juridique de la responsabilite internationale;" - en troisieme lieu et enfin, la definition de 1969 renvoie a la "cornmunaute intemationale des Etats dans son ensemble" alors que, dans le projet d' articles de la C.D.I., il n'est question que de la cornrnunaute intemationale "tout court" ;" on peut considerer que dans Ie temps qui s'est ecoule depuis I'adoption de la Convention de Vienne, la notion de comrnunaute internationale s'est elargie; il reste que cette dichotomie n'est pas des plus heureuses et que la co-existence de deux "comrnunautes internationales" distinctes dans le projet est source de confusion . Quoiqu'il en soit, le projet de 2001 va certainement dans la bonne direction. II omet le "chiffon rouge" que constituait le mot "crime" et prive d'arguments les auteurs et les Etats qui se fondaient sur lui pour s' opposer a la necessaire dualite de regimes de responsabilite, selon que le fait intemationalement illicite atteint les interets particuliers d'un ou de quelques Etats donnes ou ceux de la cornrnunaute intemationale (des Etats?) dans son ensemble; ce faisant, iI preserve les acquis fondamentaux de l'approche "revolutionnaire" de Roberto Ago, qui avait fait admettre que la responsabilite intemationale n'etait pas la situation resultant d'un dommage cause par un fait internationalement illicite, mais bien de ce fait luimeme, "objectivisant" ainsi Ie systeme de la responsabilite internationale."

43

Des preoccupations en ce sens avaient deja ete exprimees par certains auteurs avant I'adoption du projet definitif de la C.D.1. V. notarnment Georges Abi-Saab , "The Uses of Article 19", E.J./.L. 1999, pp. 348-349 ou Alain Pellet, "Vive Ie crime! Remarques sur les degres de l'illicite en droit international", in C.D.I., Le droit international ii l'aube du XX/erne siecle Refiexion s de codijicateurs, Nation s Unies, New York, 1997, no. de vente: ElF 97.VA, p. 306. »-

44

45

V. les articles 33, par. I ("Les obligat ions de l'Etat responsable enoncees dans la presente partie peuvent etre dues a un autre Etat, a plusieurs Etats ou a la communaute intemationale dans son ensemble, en fonction notamment de la nature et du contenu de I'obligation internationale violee et des circonstances de la violation") et 48, par. l.b) ("Conformement au paragraphe 2, tout Etat autre qu'un Etat lese est en droit d'invoquer la responsabilite d'un autre Etat, si: (... ) b) L'obligation violee est due a la cornrnunaute internationale dans son ensemble"). Cf Alain Pellet , "Remarques sur une revolution inachevee - Le projet d'articles de la C.D.1. sur la responsab ilite des Etats", A.F.D.I. 1996, pp. 7-32, not. pp. 10-13.

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En outre, tout en prenant note de I'existence de deux categories de violations, Ie nouveau projet de la C.D.I. enferme celles des obligations decoulant de normes imperatives du droit international general dans des limites etroites qui doivent etre approuvees: elles decoulent du degre d'integration et de solidarite, fort limite , qui caracterise la societe internationale. C'est la raison pour laquelle la Commission n'a pas soumis a un regime "aggrave" de responsabilite toutes les violations d'obligations decoulant de regles dejus cogens:" seules tombent sous Ie coup du chapitre III de la deuxieme partie les violations graves de ces obligations et Ie paragraphe 2 de I' article 41 precise: La violation d'une telle obligation est grave si elle denote que I'Btat responsable s'est abstenu de facon flagrante ou systematique d'executer I'obligation. II est clair que tout acte de torture est moralement et juridiquement condamnable et constitue la violation d'une norme imperative.'? II reste qu 'un acte isole de torture ne menace pas les fondements de I'ordre juridique international, contrairement a I'utilisation systematique et massive de la torture, meme si I'Btat n'y a recours (ou ne la tolere) qu'a des fins purement internes, sans relation avec un conflit international. Ainsi, on Ie sait, la France a fait I'objet d'une condamnation pour torture devant la Cour europeenne des Droits de l'hornme;" independamrnent de I'opinion que l'on peut avoir sur Ie bien-fonde de cette condamnation, on ne saurait, pour autant, tenir ce pays pour un Btat "criminel" (au sens de I'ancien article 19 du projet de la C.D.I. de 1976); cet acte isole survenu dans un commissariat de police et insuffisamment reprime par les juridictions francaises, aussi condamnable quil soit , ne constitue pas une violation flagrante ni systematique d'une obligation decoulant de la norme imperative du droit international general que constitue assurernent la condamnation de la torturerv la societe internationale nc s'en trouve pas destabilisee, II en va differernrnent s'agissant des politiques

46

47

C'est 11 juste titre que la C.D.I . parle de violations d'''obligations'' et non de "nonnes": les nonnes n' entrainant pas d' obligation ne peuvent donner naissance 11 un fait intemationalement illicite - cf I'article 2.b) du projet. Et, peut donner lieu 11 la responsabilite intemationale penale de I'individu qui en est l'auteur - cf, Ie jugement de la Chambre de premiere instance du T.P.1.Y. du 10 decembre 1998 dans I'affaire Furundiija, IT-95-17/1-T, qui definit I'interdiction de Ia torture comme une nonne erga omnes devenue imperative (pars. 151-157).

48

Grande chambre, arret du 28 juillet 1999. Selmouni, requete no. 25803/94.

49

V. supra . note 47.

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systematiques de rnepris des droits de l'homme mises en oeuvre naguere dans Ie Chili de Pinochet, I' Argentine de la dictature militaire ou, aujourd'hui, en Chine, en Iraq ou ailleurs. D'aucuns ne manqueront pas de s'etonner, voire de s'indigner, que Ie projet de la C.D .I. ne contienne aucune disposition prevoyant un mode quelconque de constatation de ces violations graves . Une proposition en ce sens avait ete faite, sur Ie modele de I'article 66 de la Convention de Vienne, lors de la discussion en premiere lecture du projet d' articles sur la responsabilite des Etats .50 Faute de temps et de volonte, la C.D .I. en avait remis l'examen a la seconde lecture. Cette proposition n'a pas ete repri se 11 cette occasion et n' aurait du reste guere eu de sens des lors que la Commission a decide de ne pas recommander formellement al' Assemblee generale la transformation de son projet d'articles en une convention." De toutes rnanieres, une telle dispos ition ne parrot pas indispensable: I' objet du projet est de decrire les regles de fond (fussent-elles "secondaires") applicables 11 la responsabilite des Etats pour faits internationalement illicites. La mise en ceuvre de celles-ci releve des memes mecanismes, et est soumise aux memes aleas que celie de n'importe quelle regie du droit international general: "[dlans l'etat actuel du droit international general, C. .. ) chaque Etat C... ) apprecie pour lui-me me sa situation juridique au regard des autres Etats"52 et I'absence de juge y est la regie plutot que I'exception. II n'est, au demeurant, pas sans interet de noter qu'a ce jour l'article 66 de la Convention de Vienne n'ajamais fait l'objet de la moindre application. Si, dans un avenir que l'on peut esperer lointain. >' les Etats decident de transformer Ie projet d'articles sur la responsabilite, illeur sera toujours loisible

50

51

52

53

Doc. ILC (XLVIII)/CRDA/Add.1. V. aussi 1esparagraphes 9 11 12 du commentaire de I'article 51 du projet d'articles in C.D.I., Annuaire 1996, vol. II, 2eme partie, p. 76. D'une facon plus generate, la Commis sion a renonce 11 inclure dans son projet une partie relative au reglernent des differends, en partie pour la merne raison. Sentence arbitrale du 9 decernbre 1978, Accord relatifaux services aeriens du 27 mars 1946 (Etats-Unis c. France), R.S.A. , vol. XVIII, p. 483. L'auteur de la presente contribution est partisan de laisser Ie projet d'articles de la C.D.1. "vivre sa vie" pendant plusieurs annees avant d' entreprendre, Ie cas echeant , sa transformation en une convention: Ie temps permettra d'apaiser les passions que certaine s de ses dispositions (en general les plus "progressistes") suscitent encore, et de faire Ie tri entre "le bon droit et l'ivraie".

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d'y inserer une disposition comparable -T'experience montre qu'elle presente un interet limite. 54 Comme celIe de "crime international de I'Etat", dont elle ne se distingue que par Ie nom (ou l'absence de denomination particuliere), la notion de "violation grave d'une obligation decoulant d'une norme imperative du droit international general", reflete l'idee qu'il existe des "interets fondamentaux de la communaute internationale" qu'il convient de sauvegarder de maniere speciale. C'est ce que tentaient de faire les articles 19 et 51 a53 du projet de la C.D .I. de 1996; c' est aussi l'objectif poursuivi par les articles 40 et 41 de celui de 2001. Les uns comme les autres consacrent prudemment les avancees limitees mais reconfortantes du sentiment "communautariste" et de la solidarite dans la societe internationale globale, comme Ie faisaient aussi, a leur maniere, les articles 53 et 64 de la Convention de Vienne." Avec ou sans Ie nom, decidernent, "Vive Ie crime!".

II . LE DIT ET LE NON-DIT: LES CONSEQUENCES DES "CRIMES"

A. Ce qui est dit Autant on ne peut que se feliciter que la C.D.I. ne se soit pas laisse intimider par les pressions dont elle a ete I'objet de la part d'une poignee d'Etats puissants et influents et que , conformernent asa mission, elle ait maintenu, dans son integralite, Ie projet de codification (plus que de developpement progressif) dont elle etait chargee et qui eut ete gravement ampute et desequilibre par la suppression des dispositions relatives aux violations graves des obligations decoulant de normes imperatives du droit international general," autant force est de constater que les

54

55

56

Sur ce point, I'auteur a change de position par rapport a celie qu'i1 avait soutenue il y a quelques annees dans un autre article icf. "Vive Ie crime! Remarques sur les degres de I'illicite en droit international", in C.D.I., Le droit international al'aube du XXIeme siecle - Refiexions de codificateurs, Nations Unies , New York, 1997, no. de vente: ElF 97.VA, pp. 294-296) . II est frappant que Ie projet d' articles surla responsabilite adopte en 2001 fait appel aplusieurs reprises ala notion de normes imperatives du droit international general ; outre Ics articles 40 et 41, v. les articles 26 et 50, par. I. d). II va de soi que, dans Ie processus de codification confie 11 la Commission, Ie dernier mot revient aux Etats , et c'est tres bien ainsi . Mais iI appartient 11 la C.D.1. de proposer 11 ceux-ci , en toute independance et en conscience, des projets cornplets, coherents, et prenant en consideration les evolutions de la societe intemationale et de son droit. Ce qu'il advient ensuite de ses projets n'est plus son affaire .

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consequences explicites qu'elle a tirees de ce concept sont en partie au moins, si l'on s'en tient au texte du projet, decevantes, incompletes, lacunaires . Bien qu'il eut proclame son intention de revoir "en profondeur" les anciens articles 51 a53 consacres aux consequences des crimes internationaux des Etats," le Rapporteur special, M. Crawford , n'en a rien fait, et ceux-ci sont passes du projet de 1996 acelui, provisoire, de 2000 (dans 1'article 42) puis acelui, definitif, de 2001 (article 41) sans changement notoire . Ce dernier se lit ainsi: Article 41 Consequences particulieres d 'une violation grave d'une obligation selon Ie present chapitre 1. Les Etats doivent cooperer pour mettre fin, par des moyens licites, violation grave au sens de I' article 40.

a toute

2. Aucun Etat ne doit reconnaitre comme licite une situation creee par une violation grave au sens de l' article 40, ni ne preter aide ou assistance au maintien de cette situation. 3. Le present article est sans prejudice des autres consequences prevues dans la presente partie et de toute consequence supplementaire que peut entrainer, d'apres le droit international, une violation a laqueUe s'applique le present chapitre . Sans doute, cette disposition est-elle plus "sobre" que ceUes auxqueUes eUe se substitue. Mais les changements sont plus apparents que reels. Par rapport au projet de 1996: - l' ancien article 5}S8 a disparu du texte de 2001; rnais, a vrai dire, le premier membre de phrase du paragraphe 3 du nouvel article 41 remplit la meme fonction et l'expression "consequences particulieres", dans le titre de cette disposition eut pu y pourvoir ;

57

58

V. note 38, supra. "Un crime international fait naitre toutes les consequences juridiques decoulant de tout autre fait internationalement illicite et, de surcroit, toutes les consequences supplernentaires enoncees aux articles 52 et 53 ci-apres" - texte in C.D.I., Annuaire 1996, vol. II, 2eme partie, p. 68.

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- de meme, I'ancien article 52 59 n'a pas ete conserve; mais Ie Rapporteur special a bien montre, dans son troisieme rapport, que celui-ci etait superftu; it y indiquait fermement qu'il n'y avait aucune raison de faire, a cet egard, une distinction entre les consequences des "crimes" et celles des autres faits intemationalement illicites.'" au fond , les limitations apportees par les anciennes dispositions relatives aux formes de la reparation , auxquelles I'article 52 pretendait faire exception (et que Ie nouveau projet attenue quelque peu), etaient inspirees par I'idee de proportionnalite (on souhaitait eviter que la reparation fasse peser une charge hors de proportion avec le prejudice subi ou la gravite de la violation) ; des lors que, s'agissant des "crimes", les violations sont, par definition, particulierement graves, cette proportionnalite s'en trouve, si l'on veut, "montee d'un cran" : il n'y a pas de raison, pour autant d'en supprimer I'exigence; - enfin, les paragraphes 1 et 2 du nouvel article 41 ne disent pas autre chose, mais sous une forme plus concise, et pretant sans doute moins acontroverse, que ce qu'enoncait I'ancien article 53. Quoique I'on ait pu en ecrire," il ne s'agit pas de consequences si anodines que cela. L'obligation de cooperer pour mettre fin aux "violations graves"62 est tout a fait specifique a celles-ci: nul n'ajamais pretendu que la solidarite entre les Etats soit suffisamment solide pour leur imposer un devoir (positif) de cooperation pour

59

60 61 62

"Lorsqu'un fait internationalement illicite commis par un Etat est un crime international: a) Ie droit d'un Etat lese d'obtenir la restitution en nature n'est pas soumis aux limitations enoncees aux alineas c et d de I'article 43 [selon lesquels la restitution ne doit pas imposer une charge hors de toute proportion avec l'avantage en resultant pour l'Etat lese, ni menacer a l' exces I' independant politique ou la stabilite economique de l' Etat responsable] ; b) Ie droit de l'Etat lese d'obtenir satisfaction n'est pas soumis a la restriction prevue au paragraphe 3 de I' article 45" (qui interdisait a l' Elat lese de "formuler des exigences qui porteraient atteinte ala dignite de l'Etat qui a commis Ie fait internationalement illicite") - texte ibid.

NCNAI507/Add. 4, par. 408. V. note II, supra.

L' ancien article 53 distinguait entre l' obligation "de coopereravec les autres Etats pour executer les obligations enoncees aux alineas a et b" (obligations de non-reconnaissance et de nonassistance) (alinea c) et celie "de cooperer avec les autres Etats pour appliquer les mesures visant a elirniner les consequences du crime " (alinea d). Cela etait inutilement complique et, en tout etat de cause, l'alinea c) n'avait aucune substance reelle distincte de celie des alineas a) et b).

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mettre fin 11 quelque autre fait internationalement illicite que ce soit. La structure propre de la societe internationale, faite d' abord de souverainetes juxtaposees, exclut evidemment une telle obligation/" Celle qui est reconnue au paragraphe 1 de l' article 41 est done, symboliquement au moins, en rupture avec Ie droit international classique et correspond aux avancees (modestes) de la solidarite internationale. Elle comporte en outre une indispensable garantie: en rappelant que tous les Etats doivent cooperer, "par des moyens licites", pour mettre fin aux violations graves, elle exclut par avance I'usage de la force armee d'une maniere contraire 11 la Charte des Nations Unies, ce qui devrait etre de nature 11 rassurer tous ceux qui pouvaient craindre que Ie projet ne legitime des operations "11 la Zorro" du type de celle menee par I'OTAN au Kosovo." Les interdictions, rappelees au paragraphe 2 de I' article 41 du projet de 200 I, de ne pas reconnaitre comme licite une situation creee par une violation grave d'une norme imperative du droit international general, et de ne pas preter aide ou assistance 11 son maintien, ne sont pas non plus depourvues de portee. La premiere plus que la seconde sans doute, cette derniere n'etant, au fond, que la consequence, ou la prolongation, de I'obligation enoncee au paragraphe 1. On a pu pretendre que I'obligation de non-reconnaissance n'etait pas specifique aux situations resultant de "crimes".65 Ceci n'est pas exact: certes, il n'appartient pas 11 un Etat non directement lese par un fait internationalement illicite "ordinaire" de reconnaitre une situation creee par un tel fait, mais la raison en est que cette situation est purement "inter-subjective", elle ne Ie "regarde pas"; il est tiers par

63

64

65

Qui n'existe d'ailleurs pas non plus en droit interne et y est exclue par l'idee que nul n'est cense se faire justice 11 soi-merne; en revanche, au sein de I'Etat, les citoyens ont une obligation de cooperer avec les forces de I'ordre et de lajustice (comme les Etats doivent preter leur concours au Conseil de securite dans I' exercice de sa responsabilite principale en matiere de maintien de la paix et de la securite internationales), mais ce n'est plus un probleme de droit de la responsabilite, mais de maintien de I'ordre public. L'auteur de la presente contribution n'est pas convaincu que , dans les circonstances ou elle a eu lieu , celle-ci ne puisse etre tenue pour Iicite (v. '''La guerre du Kosovo ' - Le fait rattrape par Ie droit", Forum du Droit international , 1999-1, pp . 160-165); pour I' opinion du dedicataire de ces Iignes sur cette question delicate, v. Antonio Cassese, "Ex injuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?", E.J.I.L. 1999, pp . 23-30.

Cf Robert Rosenstock, "An International Criminal Responsibility of States?" in C .D.I., Le droit international a l'aube du XXIeme siecle - Refiexions de codijicateurs, Nations Unies, New York, 1997, no . de vente: ElF 97 .VA, p. 284.

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rapport 11 elIe et n'a pas 11 prendre position 11 son egard." En revanche, il va de soi que I'Etat lese est parfaitement en droit de "passer l'eponge" et de reconnaitre, s'il Ie veut, les consequences prejudiciables d'une violation dont il est la victime. Comme l'ecrit Antonio Cassese, "under the 'old' law [toujours seul en vigueur s'agissant des faits internationalement illicites "ordinaires"] the consequences of international deliquencies were only a ' private business' between the tortfeasor and the clalmant' Article 33 (I) of the United Nations Charter mentions conciliation as one of the means of settlement" and the 1970 Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States" and the 1982 Manila Declaration on the Peaceful Settlement of International Disputes" both reaffirm the Charter's prescription. A conciliation provision is incorporated in the Vienna Convention on the Law of Treaties" and the 1982 Law of the Sea Convention." The Charter of the Organization of American States" and the OAU Protocol of 196431 also incorporate conciliation.

24

25

26

27

28

29

30

3\

General Act for the Peaceful Settlement of International Disputes, 26 Sept. 1928, 93 LNTS 342; Restoration to the General Act of26 Sept. 1928 to its original efficacy, GA Res. 268A(III), UNGAOR, 3d Sess., pt. 11, Res. At 10, UN Doc. Al900 (1949) . United Nations Charter, art. 33 (1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice . 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.); Case concerning the Aerial Incident of 10 August 1999 (Pak. v. India), supra note 15, at para . 53 ("The Court's lack of jurisdiction does not relieve States of their obligation to settle their disputes by peaceful means . The choice of those means admittedly rests with the parties under Article 33 of the United Nations Charter. They are nonetheless under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 2, of the Charter.") Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970) . Manila Declaration on the Peaceful Settlement of International Disputes, GA Res. 37/10, UN GAOR, 37th Sess., Supp. No. 51, UN Doc. A/37151 (1982). Vienna Convention on the Law of Treaties, Arts. 6, 55, opened for signature 23 May 1969, UNTS Regis . No. 18,232, UN Doc . AlCONF.39127 (1969) , reprinted in 8 ILM 679 (1969). United Nations Convention on the Law of the Sea, Art. 76, opened for signature 10 December 1982, UN Doc. A/CONF.621122, reprinted in 21 ILM 1261 (1982) . Charter of the Organization of American States, OAS Treaty Series No. I-E, OEAlSer. AI2 (English) Rev. 3 (1948, amended in 1967 and 1985); reprinted in 331LM 981 (1994). Protocol to Charter of the Organization of African Unity: Protocol of the Commission of Mediation, Conciliation and Arbitration, signed 21 July 1964, reprinted in 3 ILM 1116 (1964).

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The Revised General Act for the Peaceful Settlement of International Disputes describes the function of conciliation in Article 15 (1): The task of the Conciliation Commission shall be to elucidate the questions in dispute, to collect with that object all necessary information by means of enquiry or otherwise, and to endeavor to bring the parties to an agreement. It may, after the case has been examined, inform the parties of the terms of settlement which seem suitable to it, and lay down the period within which they are to make their decision. " Where parties have undertaken a conventional obligation to conciliate, there is usually a prior obligation to exhaust negotiat ions before initiating conciliation. A fair number of conciliation commissions have been established since the technique was established in the early days of the League of Nations . In the Americas, in particular, the Chaco Commission of 1929 was set up under the Inter-American General Convention of Conciliation. All of the international examples have led the United Nations to synthesize the core characteristics of modem conciliation in international law as follows: conciliation has evolved into a method which now has two distinctive characters [sic]. There is first of all the traditional conciliation procedure, reflected in the earlier treaties which leaves conciliation as an optional , third-party procedure, and then there is the newer conciliation procedure which emerged in the 1969 Vienna Convention on the Law of the Treaties and was further refined in the 1982 United Nations Convention on the Law of the Sea; both Conventions seek to make the resort of the conciliation procedure itself compulsory.33 In most cases , treaties do not prescribe a procedure to be followed by conciliation commissions, but authorize them to set up their own. The United Nations Handbook on Peaceful Settlement summarizes: in all treaties establishing conciliation as a third-party procedure there are provisions giving the commission the right to hear the parties, to examine their claims and objections and make proposals for an amicable solution or to draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement. In carrying out its functions , the commis sion may also summon and hear witnesses and experts and visit, with the

32

Supra note 24.

33

Handbook on the Peaceful Settlement of Dispute s Between States, United Nations, pp. 48-49.

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consent ofthc parties, the localities in question. Other provisions provide also the right of the parties to the dispute to be represented before the Commission by agents , counsel and experts appointed by them, while also being required to supply the commission with the necessary documents and information which would facilitate its work. Some treaties provide that, unless the parties otherwise agree, the work of the commission is not to be conducted in public . If a commission is able to conclude its work, it would prepare and submit a formal report containing its recommendations. Where it has not been able to reach a settlement, the commission is still expected under certain treaties to prepare the minutes of its proceedings or proces-verbaux in which no mention shaUbe made as to whether the commission's decisions were taken unanimously or by a majority vote. In certain treaties, there arc provisions aUowing conciliators to submit separate opinions if necessary." Many conciliation commissions specify a time limit of six or twelve months for the operation of the commission. The Law of the Sea Convention , in Annex V, Article 8, provides : The conciliation proceedings are terminated when a settlement has been reached , when the parties have accepted or one party has rejected the recommendations of the report by written notification addressed to the SecretaryGeneral of the United Nations, or when a period of three months has expired from the date of transmission of the report to the parties. A certain variation on the older forms of conciliation may be found in the Vienna Convention on the Representation of States and their Relations with International Organizations of a Universal Character" and in the Vienna Convention for the Protection of the Ozone Layer." The Vienna Convention on the Representation of States provides , in Article 85 (7): The recommendations in the report of the Commission shall not be binding on the parties to the dispute unless all the parties to the dispute have accepted

34 35

36

Ibid. at p. 52. Vienna Convention on the Representation of States and their Relations with International Organizations of a Universal Character, UN Doc. A/conf. 67116, signed 14 March 1975. Vienna Convention for the Protection of the Ozone Layer, entered into force 22 September 1988, reprinted in 261LM 1516, 1529 (1987) .

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them. Nevertheless, any party to the dispute may declare unilaterally that it will abide by the recommendations in the report so far as it is concerned. '? The Vienna Convention for the Protection of the Ozone Layer provides: The Commission shall render a final and recommendatory award, which the parties shall consider in good faith." There are a number of examples of conciliation commissions whose recommendations are compulsory and binding ." In cases such as these, conciliation has become a synonym for arbitration and the term, "conciliation," is used for political reasons to supplant the more accurate designation.

IV. The International Covenant on Civil and Political Rights provides for a friendly solution procedure in the optional inter-state complaint procedure in Article 41.40 Article 41 (e) provides that when such a complaint is made, "the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant." Article 41 (e) gives the impression that an effort to secure a settlement is a mandatory step which the Human Rights Committee must take, but Article 42 (I )(a) qualifies that impression by requiring the prior consent of the States concerned to appointment by the Committee of an "ad hoc Conciliation Commission." Article 42 (I)(b) provides: The Commission shall consist of five persons acceptable to the States Parties concerned . If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members.

31

38 39

40

Supra note 35, Annex Y, art. 8. Ibid. at art. 11, § 5. The Treaty Establishing the Organization of Eastern Caribbean States, Article 14 (3), entered into force 4 July 1981, reprinted in 20 ILM (1981) . Supra note 2.

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The requirement of a final report by the Comm ittee 18 months after the receipt of the initial communication (Articles 41 (l )(b) and (h) and, explicitly, Article 42 (7) establishes precise temporal parameters for this procedure. If a friendly solution is secured within the time limits, the Conciliation Commi ssion simply reports a brief statement of the facts and the solution reached . If a friendl y solution is not reached , the Commission submits a more detailed report with its own findings on questions of fact, as well as its own views on the possibilities for an amicable solution. As will be discussed below, the Inter-American Commission also uses time limits for friendly settlement, to prevent governments from using the procedure as a stalling tactic. As a number of scholars have noted, the ICCPR procedure is a faulty copy of the procedure of the International Convention on the Elimin ation of All Forms of Racial Discrimination" and it is not an outstanding piece of draftsmanship." Novak remark s, perhaps too bleakl y, that: A State Party is, therefore, able to submit to the entire procedure without risk and does not need to make any efforts toward concili ation , since it is in any event entitled at the conclu sion of the procedure to question the entire procedure, including the determinations of fact." However one would assume that the mere fact that a report is presented to the Human Right s Comm ittee as a whole cannot be without political consequence. The European system presents some striking contrasts. Although the original bipartite structure of the Europ ean system has been unified, the Comm ission 's settlement practice is still instructive. Article 28 (b) of the Europ ean Convention on Human Rights instructs the Commi ssion, upon acceptin g a petition, to place itself at the disposal of the parties concerned with a view to securing a friendl y settlement of the matter on the basis of respect for Human Rights as defined in this Convention." If a friendly settlement is reached , Article 30 instructs the Commi ssion to draw up a report , which "shall be confined to a brief statement of the facts of the

4\

42

International Convention on the Elimination of All Forms of Racial Discrimination, sup ra note 2. For a review of the drafting history, see Novak, United Nations Covenant on Civil and Political Right s CCPR Comm enta ry 607 ff. ( 1993) and citations there.

43

Ibid.,at61 4.

44

Sup ra note 2.

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solution reached" and then to submit it to the States concerned, the Committee of Ministers and the Secretary -General of the Council of Europe for publication. Rule 50 of the Rules of Procedure specifies what shall be in the "brief statement" prescribed by Article 39, but actually does little more than make explicit the obvious. The Rules provide no other guidelines on how the friendly settlement procedure is to be conducted. There are two distinct but cumulative requirements for a settlement under the European regime : agreement of the parties and approval by the Commission and now the Court. The approval is to be contingent on the compatibility of the proposed settlement with human rights as defined in the Convention: "on the basis of respect for Human Rights as defined in this Convention"." Jacobs suggests , hypothetically, that where an applicant has been the victim of a law or an admini strative procedure that the European Commission considers incompatible with the Convention, it should not accept a proposed settlement, even though it is acceptable to the victim, without , in addition, securing a commitment from the State to change the offensive law or practice." This means that the petitioner would not be free to reach a settlement that provides a remedy only for the violations he or she suffered , without an attempt to influence a government's future conduct. A settlement must defend the interests of the community at large, in other words, not only the interests of the petitioner in reparations for past violations. Governments would not be allowed to offer only money damages lest friendly settlements become a price list for human rights violations. As far as we have been able to ascertain , no friendly settlement has been rejected by the European Commission or Court on the grounds that it was not compatible with human rights as defined in the Convention.'? Since there have been friendly settlements consisting only of reparations for individual violations," one may surmise that the Court and Comm ission have not applied Jacobs ' rule.

45

European Convention on Human Rights, art. 38 (l)(b), supra note 2.

46

Jacob s, supra note 16 at 254-55.

47

See Kruger , supra note 10, at 332, (noting that "there has been no case so far in which the Commission has refused to accept the agreement reached between the partie s") ; and -cwww.oas.org» for more recent case reports .

48

See, e.g., P. van Dijk and OJ.H. van Hoof, Theory and Practice ofthe European Convention on Human Rights, at 105 (listing a dozen friendly settlement cases in which "the substance of the settlement consisted merely in that the government concerned paid compensation and/or redressed the consequences of the violation for the victim as much as possible.") Also see

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However, the requirement that every friendly settlement must be monitored, at least formally speaking, by a supervisory body, means that a petitioner may not use the European Commission's involvement merely as a threat, initiating an action and then withdrawing it when the defendant State agrees to a private, unmonitored settlement. Once the case is initiated, the Commission must playa role, because it must approve any settlement. The substantive requirement of Article 38 (b) also generates a procedural step : the Commi ssion must perforce form a "provisional view" of the merits of the case before settlement discussions can start. Without such a view, the Commission could not ensure that the settlement meets the "respect for Human Rights " test. It is the normal practice of the [European] Commission to indicate to the

Government in confidence, and very tentatively, its provisional opinion on the question of violation." As noted above , settlement talks can also be no more than a stalling tactic, in human rights as in other fields of law. Lawyers who defend corporate entities against claims know that if one simply waits, a significant number of claimants simply lose interest or go away. A standard and rational defendant's tactic is meticulously to insist upon and, in effect, to prolong every procedural option especially in the earliest phases of the dispute, before the putative plaintiff has made a significant investment in the prosecution of the case, as a way of wearing down the plaintiffs . One way of effecting this strategy is to protract settlement discussions. The European Commission's rules provide no guidance for dealing with this recurring problem. The nub of the problem is determining when to declare the settlement effort abortive. One technique is to set a temporal limit as under the ICCPR , or as the Inter-American Commission does in each case. Another is to determine the limit prudentially case-by-case. The Permanent Court opted for the second technique. In Mavrommatis , the Permanent Court required a clear indication of the impos sibility of securing a settlement: "a peremptory non possumus or non volumus of one of the parties."? With regard to the European Commission, Fawcett observes that

Farrell v. UK, No. 9013/80, in which a widow received an ex gratia payment of £37,000, after her husband was shot by an army patrol in Northern Ireland, as cited by Opsahl and Dolle, supra note I at 992. 49

Ibid. at 255.

50

Mavrommati s Palestine Concessions, 1924 P.C.I.J. (Ser. A) No.2.

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It is for the Sub-commission to decide whether in the exchanges directed towards a friendly settlement a solution appears possible. If a point mort is reached, then Article 31 applies ."

This is also the technique that the Inter-American Commission used in one of its first attempts at friendly settlement, identifying the point mort after two years of negotiations.F Since then, as we will see, the Inter-American Commis sion has exercised its statutory prerogative of setting and enforcing a time limit.

v. Of the settlement regimes considered here, that of the Inter-American Human Rights Commission is by far the best articulated. This may be the product of a legal cultural style" rather than a greater commitment to settlement. Article 48 (l )(f) of the American Convention on Human Rights provides The Commission shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention." This is substantively the same language found in Article 38 (b) of the European convention. Like its European counterpart, the Inter-American Commi ssion has no written guidelines for interpreting this language, and it has never rejected a friendly settlement. It should be noted that complainants are usually not in favour of settlements consisting only of monetary reparations. In fact, many petitioners are the first to refuse this type of settlement. "My son was not a calf," said one

51

Fawcett , Application ofthe European Convention on Human Rights 375 (2nd ed. 1987).

52

Miskito case , supra note 6.

53

54

See, generally, W. Michael Reisman, 'Bosses and the Law: Caudillism and Formalism' , Review of Rogelio Perez Perdomo, El formalismo juridico y sus fun ciones sociales en el siglo XIX Venezolano (1978) in 29 Ameri can Journal of Comparative Law 727 (1981). American Convention on Human Rights, supra note 2, art. 48 (I)(f); personal communication with one of the authors , Viviana Krsticevic, Executive Director, Center for Justice and International Law, 21 December 2000.

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mother of a massacre victim, expressing a sentiment that is typical among many surviving family members . "I will not trade him for money" . 55 Article 49 of the Convention deals with the successful conclusion of a friendly settlement negotiation . If a friendly settlement has been reached in accordance with paragraph I (0 of Article 48, the Commission shall draw up a report, which shall be transmitted to the Petitioner and to the States Parties to this Convention, and shall then be communicated to the Secretary-General of the Organization of American States for publication. This report shall contain a brief statement of the facts and of the solution reached . If any Party in the case so requests , the fullest possible information shall be provided to it. The Statute of the Commission does not elaborate the procedures for friendly settlements other than to note, in Article 23 (2), that failing arrangement of a friendly settlement, the Commission must proceed, within 180 days, to draft the Report required by Article 50 of the Convention . The Regulations of the Inter-American Commission elaborate the procedure for the friendly settlement process . Article 45 (l) of the Regulations provides: At the request of any of the parties , or on its own initiative, the Commission shall place itself at the disposal of the parties concerned, at any stage of the examination of a petition, with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the American Convention on Human Rights . There are two interesting discrepancies between Article 45 (I) of the Regulations and Article 48 (1)(0 and Article 49 of the Convention. First, the Regulations add "the request of any of the parties" as one of the possible contingencies for initiating a friendly settlement procedure. However, Article 48 of the Convention imposes a duty on the Commission to place itself at the disposal of the Parties with a view to securing a friendly settlement. The plain meaning of the text is that the Commission does this in all cases whether or not either of the Parties wishes it. In its early Velasquez Rodriguez case," the Inter-American Court indicated that the Commission has discretion over whether to offer friendly settlement, but the

55

56

Personal communic ation with one of the authors , Viviana Krsticevic, Executive Director, Center for Justice and International Law, 21 December 2000.

Velasquez Rodriguez case at para 43, supra note 10.

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Court later modified that position in the Caballero Delgado and Santana case, ruling that the Commission must offer a chance at friendly settlement to the parties except in "exceptional cases and, of course, for substantive reasons."? An exam ple, the Court suggested, would be "because the protection of the rights of victims or of their next of kin is at stake," but it did not explain further . The Commission has since avoided controversy by offering friendly settlement in every case." This means that the parties have control over whether to seek friendly settlement in a given case, not the Commission. Then the Commission might theoretically be able to exercise discretion by rejecting the terms of a settlement. Second, Articles 48 and 49 of the Convention seem to locate the friendly settlement phase of the petition procedure at the initial stages, and certainly before the Commission begins to prepare an Article 50 Report. But Article 45 of the Regulations seems to contemplate the option of a friendly settlement procedure "at any stage of the examination of a petition." This would appear to include phases occurring after an Article 50 Report has been prepared, whereupon one of the parties could initiate a proposal for securing a friendly settlement and the Commission would be obliged to put itself at the disposal of both parties. The Convention does not appear to contemplate that contingency. Rather, it seems to conceive of the friendly settlement procedure - understood as a distinct, juridical and conventionally regulated phase - as having exhausted itself prior to an internal decision to prepare an Article 50 Report. This does not mean that the Convention precludes the Commission from undertaking a settlement role after an Article 50 Report has been sent to the respondent State. The Convention is silent on this; the Convention's explicit friendly settlement phase is anterior. Therefore, any subsequent process, following an authoritative finding of law and fact by the Commission, would be materially different. We will consider "post-friendly settlement" settlements below. In an ordinary civil dispute , the structure and content of a settlement between the parties is, with a number of exceptions, entirely a matter for their decision. If, for example, one of the Parties wishe s to waive legal rights it otherwise has, as part of a settlement in return for some concession , it is free to do so. Even a settlement inconsistent with public policy or morality would not be, per se, unlawful, though

57

58

Caballero Delgado and Santana case, Preliminary Objections, Judgment of 21 Jan. 1994, Inter-Am. Ct. H.R. (Ser. C) No. 17 (1994), at para. 27.

Personal communication David Padilla, Inter-American Commission on Human Rights, to oneof the authors, 22 December 2000 .

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it would probably not be enforceable by any parts of the apparatus of the State." Civil matters are, after all, part of the private or civic order in a liberal State; there, the degree of public regulation is substantially reduced . The corresponding situation in a number of sectors of contemporary public internationallaw is quite different; parties do not enjoy such broad discretion . In the North Sea Continental Shelf cases/" the International Court of Justice observed that while a negotiated agreement was the preferred mode for resolving maritime boundary disputes, that agreement still had to reflect "equitable principles." The implication was that even in negotiated arrangements the international community reserves the right to review and, apparently, invalidate concessions or waivers that might have been made by one of the parties. Despite the word "equitable", the test that is applied to appraise party settlements is plainly legal, for "equitable principles" in the context of maritime boundaries is a code word for law." This community oversight of settlements, greater than in many domestic legal systems, would appear to be especially pertinent in human rights matters, which are quintessentially concerns of international public policy and in which the power disparity between the parties - a government, on the one hand, and an individual, on the other - are greatest. Hence it is no surprise that the American Convention, like its European counterpart, establishes substantive limits on how and with regard to what norms a friendly settlement of human rights disputes can be secured . As in the European system, it is not known how this vague phase "on the basis of respect for ... human rights" is meant to be applied, that is, what sort of settlements or settlement processes would be excluded or, specifically, why. This means that the friendly settlement procedure is different from negotiated settlements in civil law in most systems. There, the parties may conclude a private agreement and notify a court which has already been seized that they are terminating the case before it. Unless the Parties agree that the terms of their settlement should be endorsed by the court as an order or judgment, the court will have no role in supervising the content of the agreement. The Commission, in contrast, must assure itself that the terms of the settlement are consistent with the American Convention . This does not mean, as we will see, that the settlement must incorpo-

59

60 61

But cf. French concept of ordre public international, whose function is to avert the application of domestic ordre public.

North Sea Continental Shelf cases, (E.R.G . v. Den. ; F.R.G. v. Neth.), 1969 I.e.J . 3. W. Michael Reisman & Gayl Westerman , Straight Baselines in International Maritime Boundary Delimitation (1992) .

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rate a remedy exactly configuring the alleged violation of the Convention. Much more discretion is apparently allowed. The legislative objective, implied in the Convention and elaborated expressly in the Regulations, is plainly designed to protect the individual who has suffered the human rights violation . This objective can be frustrated in a number of ways. Given the preponderant power of the State Party, one can imagine worst-case scenarios in which the defendant State threatens the victim or the victim's family, which then asks for a settlement on terms largely dictated by the State instead of bringing a case to court. The intimidation which paralyzes the human rights protection system may take place prior to the initiation of the petition before the Commission. In this case, there is no way for the Commission to provide a degree of supervision over the settlement process. Even if a petition has been initiated, a petitioner who has been intimidated may withdraw the petition, in which case the Commission's jurisdiction will be terminated, or it will simply stop pressing the matter and ultimately archive the case. The Inter-American Court, whose normative regime does not specifically mention friendly settlement, has ruled that once a case is before it and the Parties indicate that they wish to arrange a settlement, the Court must participate in and approve the settlement. A party or parties may not simply end the case by withdrawing it. Because the friendly settlement must meet certain substantive criteria prescribed in the Convention , procedures that ensure that the Commission will have the information necessary for it to make a cogent judgment about that requirement must be established . The European Commission has the same requirement but operates informally. The Regulations of the Inter-American Commission present quite a different approach . Article 45 (2) of the Regulations provides: In order for the Commission to offer itself as an organ of conciliation for a friendly settlement of the matter[,] it shall be necessary for the positions and allegations of the Parties to be sufficiently precise; and in the judgment of the Commission, the nature of the matter must be susceptible to the use of the friendly settlement procedure . Regulation Article 45 (2) ostensibly illuminates the obligation of the Commission to place itself at the disposal of the Parties for friendly settlement purposes as required by Convention Article 48 (l)(f). The settlement, it will be recalled, must be "on the basis of respect for the human rights recognized in this Convention." If this is a proper reading of the Convention, the Commission can only determine this (according to its own criteria) once it has informed itself of the nature of the case. Hence the need for "the positions and allegations of the Parties to be sufficiently precise." This is quite a logical sequence even if one does not assume that

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the Commission has the competence to determine that certain types of violations are insusceptible to friendly settlement. In fact, that competence is not to be found in the Convention. It simply obliges the Commission to place itself at the disposal of the Parties for this purpose. A Report under Article 51, the culmination of the individual petition process in the absence of judicial jurisdiction, will include a confirmation of the facts and the violation of the Convention; a recommendation to the government concerned to investigate and, where appropriate, to punish; a recommendation of compensation where and to the extent appropriate and such other remedies as may appear required by the Commission. Presumably all ofthese elements would, in one degree or another, be incorporated in a friendly settlement. The major difference between a friendly settlement and an Article 51 Report would be in the degree of publicity attending each. An Article 51 Report may, if the Comm ission decides by majority vote, be published. A friendly settlement is notified only to the Secretary-General under Article 49, which contemplates "a brief statement of the facts and of the solution reached ." Thus , the only difference between the content of an Article 51 Report concluding a contentious petition procedure and an Article 49 Report concluding a friendly settlement of such a procedure concerns the range or extent of publication of the Report and its level of detail. Regulation 45 (2) seems to contemplate matters whose nature makes them insusceptible to friendly settlement. Since, however, the only difference between an Article 49 and an Article 51 Report in this regard would be detail and scope of publicity and since the Commission in performing its role in the friendly settlement could insist on wider publication if it felt that were necessary to bring it into conformity with respect for the human rights recognized in the Convention, the implication in Regulation Article 45 (2) that certain matters might be insusceptible ration e materiae to friendly settlement is, one must conclude, ultra vires. But, curiously, the Regulations approach the issue of publication of the Article 49 Report of a friendly settlement more rigidly than does the Convention itself. Article 51, it wi11 be recalled , leaves the Commission to decide whether or not it will publish a report. An Article 50 Report may not be published by the State Party to which it is exclusively referred . Article 49 speaks of relaying the Report of the friendly settlement to the Secretary-General, but does not mention publication, as do the counterpart provisions of the European Convention. Yet Article 45 (6) of the Regulations provides: If a friendly settlement is reached, the Commission shall prepare a report which shall be transmitted to the Parties concerned and referred to the Secretary-General of the Organization of American States for publication .

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It is striking that, in the interpretation of the Convention developed by the drafters

of the Regulations, publication of a friendly settlement report is mandatory, despite the fact that it is not mentioned in the Convention and that even an Article 51 Report need not be published. Since publication is one of the basic sanctions in international human rights law, the approach taken by the Regulations, in addition to diverging from the Convention, also reduces the incentives of the defendant State to agree to a friendly settlement. The only conventional prerequisite for a friendly settlement procedure would be the disposition of both of the parties to participate in it. This disposition can crystallize sequentially, i.e., with one party proposing to the Commission a friendly settlement and the other party acceding sequentially. Or both parties may agree between themselves to resort to the friendly settlement procedure and thereupon inform the Commission simultaneously. If both parties are inclined to seek a friendly settlement, the Commission may not refuse. Indeed, the Commission itself must propose the possibility of settlement. But we would emphasize, once again, that the Commission may refuse to endorse an agreement reached between the parties if that agreement fails, in the view of the Commission, to respect the human rights recognized in the American Convention on Human Rights. The requirement of Article 48 (l)(f) of the Convention that any friendly settlement reached must respect "the human rights recognized in this Convention" would appear to relate to the content of the settlement, and not to the insusceptibility of certain types of violations to friendly settlement. Though the words "in the judgment of the Commission the nature of the matter must be susceptible to the use of

the friendly settlement procedure" are ultra vires the Convention, the procedure contemplated by Article 45 (2) of the Regulations is still required. Once the Commission enters the friendly settlement mode, it is obliged to inform itself of the nature of the case and how the settlement relates to it in order to ensure that the content of the settlement manifests the respect for the human rights recognized in the Convention, as required. Regulation 45 (4) provides for the designation of a special commission or an individual from the Commission who conducts , within time limits set by the Commission, an investigation which involves the gathering of evidence, the holding of hearings , if appropriate, and an on-site observation, upon receiving the consent of the State to be visited. As we have seen, the European Convention and Rules, in contrast to the ICCPR, do not specify time limits. The Regulations of the American Convention seem more sensitive to the potential for abuse. All of these activities are carried out within time limits, such that the friendly settlement procedure cannot be used as a dilatory tactic . Regulation 45 (4) mentions an overall time period for the friendly settlement procedure which is to be set by the Commission, and subparagraph 5

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reiterates the point, this time speaking of fixing a time for the conclusion of the procedure. Concern for this abuse of process is manifested again in paragraph 7 which states, in relevant part, that [i]n a case where the Commission finds, during the course of processing the matter, that ... one of the Parties ... does not evidence good will in reaching a friendly settlement based on the respect for human rights, the Commission, at any stage of the procedure , shall declare its role as organ of conciliation for a friendly settlement to have terminated. It is striking that the friendly settlement procedure of the Commission, then, is a much more structured and sequenced type of settlement procedure than is ordinarily found in other human rights conventions. From this brief review of the conventional and regulatory material addressing the friendly settlement procedure of the American Convention , it will be clear that the drafters of the Convention sketched only the broad outlines of the procedure. The drafters of the Regulations appear to have developed a concept that is somewhat at variance with the requirements of the Convention . Moreover, that concept does not appear to comport with the incentive structure of the parties in a friendly settlement procedure and may not contribute to its use. As the work of the Commission increases, the advantages for the Commission itself of elaborating a workable and more consistent friendly settlement procedure will grow. Even more important , the friendly settlement procedure incorporates implementation. This is the most difficult problem for the Inter-American Commission on Human Rights and makes this procedure particularly attractive . For the petitioner, the friendly settlement procedure promises the same economy and rapidity that benefits the defendant State. Moreover, the enforcement of the settlement is even more urgent for the petitioner for, without it, nothing tangible will be received. But, as the Regulations are currently construed, the defendant State has little incentive to participate in the friendly settlement procedure. The major difference between the friendly settlement and a contentious procedure resulting in an Article 51 Report, as noted above, is publicity. But the Regulations tend to minimize the force of this distinction, by making publication of the results of the friendly settlement mandatory as opposed to the discretionary power of publication for an Article 51 Report . There are other problems with the friendly settlement procedure that emerges from the Regulations. When conciliation is conducted by separate individuals in a separate institutional setting, the failure of the conciliation procedure is conveyed to the final decision-maker, but the details that have been revealed by the Parties are not. This compartmentalization of the procedure thus encourages both Parties

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to behave flexibly and explore alternatives on the assurance that the statements made in settlement efforts will not be used against them if the case should proceed to a contentious phase. When the same institution conducts both friendly settlement procedure and the contentious procedure, the advantages of this compartmentalization procedure are lost. This particular problem is likely to be even more acute in the Commission, where the probable delegate conducting the friendly settlement procedure will be the Rapporteur for the country concerned, thus one who will playa major role, in any case, in any contentious procedure . In United States law, where the same official must perform potentially incompatible functions, one defensive strategy is the socalled "Chinese Wall," i.e., a tight compartmentalization of information within a particular bureaucratic unit such that the right hand does not know what the left hand is doing . Even if it works - one need not be cynical to be doubtful- it is not reassuring to those who seek impartial decisions. Where, as in so many international processes, consent is a critical prerequisite, that reassurance is particularly important. For States that have accepted the Court's jurisdiction, this problem is aggravated by the discretionary power assigned to the Commission with regard to electing an Article 51 Report as the culmination of a contentious procedure, or referring the matter to the Inter-American Court . If the objective of the petitioner and/or its counsel is not simply to secure a remedy but to cause embarrassment to the defendant government, the counsel may act in ways that increase the predisposition of the Commission to refer the case to the Court. The structural problems are not easily soluble. An amendment of the Convention is not plausible. Even adjusting the Regulations would be difficult. For the near-term future, the Commission will have simply to work its way through friendly settlements with a view toward consolidating a process that serves the interests of all of the parties . What is the juridical effect of a friendly settlement under the American Convention if any? It is not clear from the terms of the Convention itself nor, as noted above, is it clear what its effect is in many other modalities. Jacobs , with regard to the European Commission, opines that "the obligations resulting from a settlement are those of internationallaw."62 That does not help a great deal. In our view, a friendly settlement is a binding obligation, in contrast to recommendations from a supervisory body.

62

Jacobs a1257; see also Frohwein in Robertson , Privacy and Human Rights 284, 288 (\973).

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VI. Although the American Convention plainly conceives of its mandatory friendly settlement phase as beginning and concluding early in the process, the Convention does not preclude other types of settlement after this phase has passed, as long as an Article 51 Report has not yet been issued. These are "post-friendly settlement" settlements. There is no reason why a government that has received an Article 50 Report may not approach the Commission and suggest a settlement. If it meets the substantive requirements of Article 48 (1)(f), it would appear to be compatible with the Convention. But a number of features that do not form part of the friendly settlement procedure would apply to such a "post-friendly settlement" settlement. First, it would render unnecessary the elaborate procedures developed in the Regulations in order adequately to inform the Commission, so that any settlement approved by it will be consistent with the human rights codified in the Convention. The formal procedures leading up to an Article 50 Report will have already supplied the Commission with this information. Indeed, there will be no need for any further evidentiary hearings or the production of further witnesses . The entire procedure in this phase will be directed at the negotiation and crafting of a settlement which meets the requirements of the Convention. A significant incentive for the defendant government to seek to secure a friendly settlement - the issuing of a report to the Secretary-General, rather than an Article 51 Report to the General Assembly - may not be available for "post friendly settlement" settlements . But the American Convention appears to give some discretion to the Commission as to whether to issue an Article 51 Report at all. It would appear to be consistent with the Convention for the Commission to elect not to issue an Article 51 Report if a "post-friendly settlement" settlement meets the requirements of the Convention, and non-publication would in no way undermine the major purposes of the Convention.

VII . A word on informal friendly settlements may also be in order. None of the regional human rights commissions has an explicit, regulated, procedure for securing informal friendly settlements, but clearly, they are a critical part of the dispute resolution process, such as the so-called "silent diplomacy" of the United Nations Secretary-General. As in the case of silent diplomacy, there is an understandable reluctance on the part of international functionaries and government officials to acknowledge them. Consider a hypothetical: in country X, in which all groups

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must register with the government and receive a charter, the official registrar refuses to register a gay rights group because of the opposition of some religious groups on grounds of public policy and public morality. Counsel for the group contacts a human rights commission, which then contacts the Ministry of Justice, which, in tum , arranges for the registration of the gay rights group. This would seem to be a satisfactory settlement , but it does not include a mandatory institutional change, i.e., an order to the putative defendant government to amend the regime under which groups are registered so that future violations of human rights of a similar nature will not occur. Has the human rights agency which secured this limited remedy for the erstwhile petitioner, but did not secure a change in the local law, behaved properly in terms of its conventional instrument? If the same result had been achieved as a formal friendly settlement, should the Commission have found that it was reached "on the basis of respect for the human rights recognized in [the American] Convention?" In our view, the answer to this difficult question will tum on such factors as the gravity of the offence, the likelihood of its recurrence, the importance of timely decision for the victims, the local capacities for correction of the governmental action, etc.

VIII. We conclude with some reflections on strategic considerations in reaching friendly settlements . From the foregoing discussion, it is apparent that the drafters of the Inter-American system were persuaded that friendly settlement procedure, when properly followed, can serve the interests of petitioners, defendant governments and the human rights system. Viewed comparatively, it is apparent that friendly settlement presents special advantages to a politically weak institution like the Inter-American Commission on Human Rights in that it permits it to secure all of the objectives of an Article 51 Report with a much smaller investment of time and professional resources . The terms of friendly settlements are often preferable to complainants, and settlement produces, in our view, a binding obligation on the defendant government, whereas an Article 51 Report is, by the terms of the Convention, a mere recommendation. Friendly settlement can have a substantial influence on the future behavior of governments, and especially in the Inter-American system where the Court of Human Rights is also a weak institution, friendly settlement may be even more effective as a method of influencing State practice, than litigation . But there are also dangers. Friendly settlements may generate their own jurisprudence constante and by establishing a "tariff," as it were, for violations of

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human rights, they may transform absolute prohibitions on governments into facultative and rather Pharisaical options : "thou shalt not deprive politically troublesome persons of their liberty" will molt into "if thou dost deprive a political trouble-maker of liberty, thou shalt pay so much per day of deprivation ." This is surely not the objective of the international human rights program anywhere. Finally, it is not enough to consider the terms of friendly settlements, but also the character of the signatory parties, since an ostensibly favorable settlement may be worthless if signed by a disingenuous or feckless government. Friendly settlement seems to recommend itself especially in circumstances in which the persons or the government that perpetrated the violations have been replaced, and the successors are human rights-friendly rather than hostile . Conversely, friendly settlement would seem inappropriate in circumstances in which one party is an illegitimate government engaged in broad and continuing violations of human rights to enable it to remain in power.

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35 LA CONDITION DES VICTIMES DE CRIMES DE DROIT INTERNATIONAL Francois Rigaux

I. INTRODUCTION Trois elements ont, au cours de la derniere decennie, contribue 11 attirer l'attention sur le sort des victimes d'un crime de droit international. Le premier est l'institution de deux tribunaux , internationaux ad hoc, l'un pour I'ex-Yougoslavie, l'autre sur Ie Rwanda,' suivie de l'adoption du Statut de la Cour penale internationale permanente.' Le second element a ete apporte par la Commission des droits de l'homme des Nations Unies dont les travaux ont debouche sur un texte intitule :

Principes fondamentaux et directives concernant le droit

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Statut du Tribunal international pour I' ex-Yougoslavie institue par la Resolution 827 (1993) adoptee par Ie Conseil de Securite Ie 25 mai 1993; Statut du Tribunal international sur Ie Rwanda institue par la Resolution 955 (1994) du 8 novembre 1994 . Statut de la Cour penale internationale, fait a Rome Ie 17 juillet 1998. Voir Ie texte et un commentaire du statut dans : La Cour penale internationale, Le Statut de Rome , introduit et commente par William Bourdon avec EmmanuelleAuverger (Paris, Editions du Seuil, "Point", 2(00). Selon la Iiste annexee la publication de la loi d' assentiment du Royaume de Belgique dix-neuf Etats avaient alors depose leur instrument de ratification (Moniteur beige, ler decernbre 2000, p. 40421). Ce chiffre a ete porte vingt-sept la fin de l'annee 2000. Le Statut "entrera en vigueur le premier jour du mois suivant Ie soixantieme jour apres la date de depot du soixantieme instrument de ratification, d'acceptation, d'approbation ou d'adhesion aupres du Secretaire general de l'Organisation des Nations Unies" . Le traite a ete signe Ie 31 decernbre 2000 par les Etats-Unis, Israel et I'Iran (Le Monde, 2 janvier 200 I). II est aujourd 'hui entre en vigueur. Ni la Chine, ni l'Inde, ni la Russie n'ont signe Ie Statut. Sur Ie Statut, voir encore les contributions des professeurs Condorelli, Carrillo-Salcedo et Sur dans la Revue Generate de Droit International Public , t. cm (1999), pp. 8-45, "Principes fondamentaux et directives".

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L.C . Vohrahetal. (eds .),Man'slnhumanitytoMan, 771-790 ©2003 Kluwer Law International. Printed in the Netherlands.

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reparation des victimes de violations du droit international relatif aux droits de l'homme et du droit international humanitaire? Le troisieme element s'est place dans l' ordre interne des Etats : en France le proces du sang contamine', en Belgique les attentats sexuels commis sur des mineurs ont incite les families des victimes a se coaliser en vue d' obtenir que "justice soit faite" . L' arret prononce le 17 novembre 2000 par la Cour de cassation de France dans I'affaire Nicolas Perruche" est un ternoignage supplernentaire de la volonte de ne laisser aucun prejudice non repare : l'adolescent affecte de handicaps graves qui lui auraient etc epargnes s'il n'etait pas ne a une action contre Ie medecin et le laboratoire de biologie medicale n' ayant pas su deceler la rubeole dont souffrait la femme enceinte, qui avait exprime 1'intention de solliciter une interruption medicale de grossesse si l'examen avait ete positif. Le plus notable est une revendication dirigee contre la collectivite, en derniere analyse contre 1'Etat afin qu'aucun prejudice ne soit prive de reparation. En effet, l' auteur du crime ou du delit est souvent insolvable ou il demeure inconnu et il appartiendrait dans ces cas a la collectivite de compenser Ie tort inflige a la victime .

3

4

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Conseil economique et socia l, Doc . E/CN.4I2000/62 du 18 janvier 2000, "Le droit a restitution, indemnisation et readaptation des victimes de violations flagrantes des droits de I'homme et des libertes fondamentales", Rapport final du Rapporteur special, M. Cherif Bassiouni, presente en application de la resolution 1999/3 de la Commission, auquel est annexe Ie texte des Principes fondamentaux et directive. La Commission des droits de I'homme a pris acte du rapport de I'expert independant : Doc . E/CN.4IRESI2000/41 du 20 avril 2000 . Le rapporteur special avait ete charge par la Commission de presenter une version revisee des principes et directives fondamentaux etablis par M. Theo van Boven (E/CN.4/1997/104, annexe). M. Bassiouni declare avoir en outre examine Ie travail de M. Louis Joinet, rapporteur special de la Sous-commission de l'rmpunite des auteurs de violations des droits de I'homme (civils et politiques). On consultera aussi Ie rapport beaucoup plus circonstancie presente par M . CherifBassiouni Ie 8 fevrier 1999 : E/CN. 4/1999/65. Voir encore : Theo van Boven, 'The position of the victim in the Statute of the International Criminal Court', in von Hebel , Lammers and Schukking (eds.), Reflections on the International Criminal Court : Essays in honour ofAdriaan Bos (TMC Asser Press , The Hague, 1999), pp. 77-89 . La France a ete condamnee a deux reprises par la Cour europeenne des droits de I'homme pour violation de I'article 6, paragraphe ler, de la Convention, en raison de la longueur des procedures d'indemnisation des victimes : 24 avril 1998, Affaire Pailot c. France, Recueil 1998-11, p. 787 ; 29 avril 1998, Affaire Heura c. France, RecueiI1998-1I, p. 965 . Le Monde, 19-20 novembre 2000; Le Journal des Proces, no. 404, 15 decembre 2000 .

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A. Une question de definition Les deux rapports de M. Bassiouni font etat de I'incertitude du vocabulaire et notamment des divergences terminologiques entre les rapports respectifs de M. van Boven et de M. Joinet (voir la note 3). A peu pres tous les concepts pertinents sont frappes de pareille indetermination. Quels sont les "crimes de droit international" ou les "violations des droits de l'homrne" meritant une attention particuliere? Que faut-il entendre par droit international humanitaire? Quelle est la definition de la victime de tels crimes? Quelles voies d' acces la victime a-t-elle a une juridiction, tant6t nationale tant6t internationale? Quelles sont la nature et l'etendue des reparations? Qui est tenu de reparer? Ainsi, il existe scion M. Bassiouni vingt-cinq categories de crimes de droit international",Tous ces crimes, qui sont d'une gravite inegale, doivent-ils entrer au meme titre dans les previsions des normes dont les victimes pourraient se prevaloir? A l'exemple du statut de chacun des tribunaux ad hoc, Ie Statut de Rome limite la competence de la Cour "aux crimes les plus graves qui touchent I' ensemble de la comrnunaute intemationale" (art. 5, I). La competence a I'egard des crimes d'agression est reservee. A l'exception des crimes de genocide (art. 6) dont la definition etait deja fixee par la Convention de 1948, les autres categories de crimes sur lesquels s'exercera la competence de la Cour font l'objet d'une enumeration dont la liste est chaque fois precedee d'un important caveat: pour Ie crime contre l'humanite, que l'un des actes retenus ait ete "comrnis dans Ie cadre d'une attaque generalisec ou systematique lancee contre une population civile et en connaissance de cause" (art . 7, I) ; pour les crimes de guerre, "lorsqu'ils s'inscrivent dans un plan ou une politique ou lorsqu'ils font partie d'une serie de crimes analogues commis sur une grande echelle" (art. 8, I). II est certes regrettable que la competence d'une juri diction penale soit reglec - on n' oserait ecrire deterrninee - en des termes aussi vagues. Ni la victime ni I' accuse ne sauraient prevoir avec quelque certitude qu 'un fait criminel particulier entre dans la competence de la Cour, et ce d'autant moins que la recevabilite de la poursuite depend de circonstances exterieures a l'acte punissable : "le cadre" dans lequel il a ete commis, "le plan" dans lequel il s'inscrit et, de maniere plus generale, sa liaison avec d'autres faits punissables, commis par d' autres personnes au prejudice d' autres victimes que celie qui reclame justice. La justice penale s'accommode mal de qualifications aussi indeterminees, qui abandonnent a la juridiction (et deja au Procureur) Ie pouvoir discretionnaire

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de choisir les crimes dont eUe acceptera de se saisir. Une justice aussi peu individualisee ne satisfait pas plus la legitime attente de la victime qu' elle ne garantit les droits de defense de l'accuse : la psychologie de la victime n'est-eUe pas de vivre les souffrances qui lui ont ete infligees comme un fait unique, qui n' appartient qu'a eUe et qui risque d'etre denature s'i! n'arrive au juge que noye dans un crime de masse?

B. Une triple problematique selon une double perspective Trois phases doivent etre distinguees dans les rapports entre la victime d'un fait punissable et la justice. Les deux premieres concement l'exercice de l'action repressive : d'abord, quel droit de regard la victime a-t-eUe sur le declenchement de cette action? Ensuite, apres que lajuridiction de jugement a ete saisie, la victime peut etre amenee a comparaitre devant cette juridiction, Ie plus souvent comm e ternoin (et, parfois, unique temoin) des faits commis a son egard. Peut-eUe aussi prendre la parole sur l'exercice de l'action publique? La troisieme phase a pour objet la reparation de son prejudice . Sans doute la condamnation de l'accuse esteUedeja une forme de reconnaissance du mal qui a ete inflige, mais d' autres formes de reparation doivent etre considerees , tant6t en nature (retour au pays dont la victime a ete expulsee, restitution des biens dont elle a ete privee) tantot par le versement d'une indemnite . De queUe ju stice s'agit-il? lei se separent plusieurs orientations : cours et tribunaux etatiques au juri diction penale intemationale. Les choix sont multiples puisque les tribunaux de differents Etats peuvent, Ie cas echeant, exercer leur competence et i! faudra voir de queUe marge de manoeuvre la victime dispose. Les reparations peuvent etre ordonnees par une juridiction civile, parfois par Ie tribunal saisi de l' action repressive . Le caractere selectif des crimes deferes a la Cour penale intemationale laissera encore un large champ d'action aux juridictions etatiques apres que cette Cour sera entree en fonction et cela sur un triple plan : a l'egard des faits criminel s n'atteignant pas Ie degre de gravite requis par le Statut, pour les crimes commis avant I'entree en vigueur du Statut (art. 12, par. ler) ou s'ils ne satisfont pas, a I' egard d'un Btat Partie, au critere de rattachement prevu par I' article 12, paragraphe 2.

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II. JU RID ICT ION P ENAL E INT ERNATIO NALE

A. La saisine d'une juridiction penale internationale Selon Ie statut des deux Tribunaux ad ho c , l'exercice de I'action repressive est confere a un "organe distinct au sein du Tribunal international " lequel "agit en toute independance". App ele "Procureur" (Prosecutor), Ie titulai re de cet office est maitre absolu de l'initiative de I'exercice de I'action publique". II "ouvre une information d'office ou sur la foi des renseignements obtenus de toute s sources .. ."8 . Bien qu 'elles ne soient pas exclues par Ie texte , la plainte ou la denonciation de la victime n'y sont pas non plus expli citement mentionnees. Lorsque l'instruction est terminee, si Ie Procureur entend exercer des poursuites il saisit la Chambre de prem iere instance d'un acte d'accu sation que eette Chambre du Tribunal peut con firmer ou rejeter". Le Statut de Rome de la Cour pen ale intern atio nale a davantage pri s en co nside ration la prote ction des droit s des victimes. La notion de victime apparait en de nombreux articles, et quelques droits procedurau x sont reconnu s aux personnes ayant eette qualite, que Ie Statut s' abstient de definir'".

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Statut du Tribun al sur I' ex-Yougoslavie, art. 16; Statut du Tribunal pour Ie Rwanda. art. 15. Statut du Tribunal sur l'ex-Yougoslavie, art . 18; Sta tut du Tribun al pour Ie Rwand a. art. 17. Pour un exe mple du caractere non contradictoire de la procedure suivie par Ie Procureur du Tribunal international sur l' ex-Yougoslavie, voir Ie classement sans suite de la plainte forrnulee contre l' OTAN en raison des bombardements de la Yougoslavie durant la guerre du Kosovo. La decisio n du Procureur a ete prise la suite des co nclusions negat ives du cornit e charge d' examiner les allegation s de la Yougoslavie : Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Ce rapp ort est disponible sur le site.

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Statut du Tribunal sur l'ex-Yougoslavie, art. 18 et 19: Statut du Tribunal pourle Rwanda, art. 17 et 18. Co mpo la definition tres elaboree contenue sous Ie paragr aphe 8 des Principes f ondamentaux et directives (supra, note 3) annexes au Rapport final du profe sseur Bassioun i, Doc. EcfN.l41 2000162. pp. 8. "On entend par ' victirne' , une personn e qui, par suite d' actes ou d' omissions constituant une violation de s norm es du droit international human itaire ou des droits de I'h omm e, a subi, indi vidue llement ou co llectiveme nt, un prejudice, notamm ent une atteinte son integri te physique ou rnentale, une souffrance moral e. une perte rnaterielle ou une atteinte ses dro its fond amentaux. Une ' victime' peut etre ega lernent une personne charge ou un membre de la famille proche ou du menage de la victime directe o u une personne qui ,

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L'article IS du Statut fixe les regles applicables a l'ouverture d'une enquete , Celle-ci doit etre autorisee par la Chambre preliminaire, la deuxieme phrase de l'article IS, alinea 3, precisant ce qui suit: Les victimes peuvent adresser des representations a la Chambre preliminaire , conformement au Reglement de procedure et de preuve. De meme, en cas de contestation sur la competence de la Cour ou sur la recevabilite d'une affaire, "les victimes peuvent egalement soumettre des observations a la Cour" (art. 19, al. 3). Intitule "Protection et participation au proces des victimes et des temoins", l'article 68 du Statut contient plusieurs dispositions dont seul Ie paragraphe 3 interesse les presents developpemcnts : 3. Lorsque les interets personnels des victimes sont concernes, la Cour permet que leurs vues et preoccupations soient exposees et examinees, a des stades de la procedure qu'elle estime appropries et d'une maniere qui n'est ni prejudiciable ni contraire aux droits de la defense et aux exigences d'un proces equitable et impartial. Ces vues et preoccupations peuvent etre exposees par les representants legaux des victimes lorsque la Cour I' estime approprie, conformement au Reglement de procedure et de preuve. L'effet utile de cette disposition dependra du Reglement de procedure et de preuve et de la maniere dont la Cour interpretera ses pouvoirs en la matiere. La redaction embarrassec atteste qu'il s'agit d'un texte de compromis. Dans cet article comme dans les articles 15 et 19, les redacteurs du Statut ont entretenu une conception patemaliste des victimes, celles-ci ne sont pas de veritables sujets de droit, elles ne sont a aucun moment parties au proces penal. L'article 53, paragraphe Ier, c) permet au Procureur de ne pas exercer de poursuites parce qu' "il y a des raisons serieuses de penser, compte tenu de la gravite du crime et des interets des victimes, qu'une enquete ne servirait pas les interets de la justice". Pareille conclusion negative doit etre communiquee a la Chambre preliminaire. Le texte n'est pas tres clair. II s'agit sans doute du peu de gravite du

intervenant pour venir en aide 11 une victime ou empecher que se produisent d' autres violations , a subi un prejudice physique, mental ou materiel". Si I' on voulait s' inspirer de cetle definition pour I' interpretation du Statut de Rome , il faudrait dans la premiere phrase substituer aux infract ions qui y sont enumerees les crimes entrant dans la competence de la Cour.

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crime plutot que de la gravite. De plus, en quoi la prise en consideration des interets des victimes peut-elle conduire a une decision de classement de l'enquete? Selon Ie commentaire cite a la note 2, la situation visee serait celie de "negociations sur Ie point d'aboutir a la signature d'un accord de paix". Ce qui est appele "les interets de la justice" serait plus exactement l'interet politique de ne pas compromettre de telles negociations. On ne saisit pas en quoi les interets des victimes (ou l'absence d'un tel interet) pourraient justifier l'abandon des poursuites.

B. La protection des victimes et des temoins durant l'instruction de I'affaire Bien qu 'ils soient parfois conjoints, parfois utilises separement, les concepts de victime et de temoin qualifient souvent la meme personne. Dans Ie cas de crimes sexuels ou de violences graves n' ayant pas entraine la mort , il arrive que la victime soit Ie seul temoin du fait. Plusieurs articles du Statut se preoccupent de leur protection en des termes qui en font des objets plutot que des sujets de l'Instance penale. Pourquoi une telle protection est-elle necessaire, en quoi consiste-t-elle et quels obstacles s'opposent-ils a certaines formes de protection? En premier lieu, il est necessaire de proteger victimes et temoins parce que les faits sont relativement recents, qu'ils ont ete commis dans un pays dont une partie de la population et parfois certains dirigeants denient la nature criminelle de ces faits, parce que les temoins et les victimes proviennent d'un tel pays et doivent le regagner ou y ont des parents proches dont la securite n'est pas assuree, Plusieurs arrets du Tribunal international pour I'ex-Yougoslavie illustrent pareille necessite. On ne saurait sur ce point suivre Ie parallele fait dans la motivation d'un jugement de ce Tribunal avec Ie Tribunal militaire international de Nuremberg". L'horreur des crimes commis par les dirigeants du Troisierne Reich prive de toute credibilite l'objection scIon laquelle les vainqueurs auraient impose leur loi aux vaincus. Ce qui est vrai et renforce la valeur juridique du jugement de Nuremberg est que la debellation de I'Allemagne et I'occupation de son territoire avaient place les accuses sous la main de la justice" et que les elements de preuve du dessein criminel

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Affaire IT-94-I-T, 10 avril 1995, Procureur c. Dusko Tadic, Annotated Leading Cases of International Criminal Tribunals, The International Criminal Tribunal for the former Yugoslavia 1993-1998 (Intersentia Verlag, Osterreich, 1999), p. 155. Concedons que celui-ci etait plus rnilitaire qu'international. Sur ee point, voir : F. Rigaux, "La repression des crimes de droit international 11 Nuremberg et 11 Tokyo", Bulletin de la Classe des Lettres de l'Academie royale de Belgique, 6e serie, t. IX, 7-12/1998 , 501-539 , 531-537 .

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etaient a la disposition du Tribunal grace a la saisie des archives des diverses administrations et a la presence de nombreux temoins demeures en Allemagne. Mais Ie plus decisif est que la victoire des puissances alliees avait mis fin au regime de criminalite organisee qui constituait Ie premier des quatre chefs d'accusation. Sur les differents points qui viennent d'etre consideres la comparaison avec Ie Tribunal international pour l'ex-Yougoslavie n'est guere favorable ace Tribunal. Les crimes ethniques qui relevent de la competence du Tribunal n'ont a aucun moment cesse d'etre commis sur Ie territoire vise par I'article ler du Statut, et la decision du Conseil de Securite a pu paraitre un alibi dissimulant son impuissance a mettre fin au conflit. Les principaux responsables des actes crimi nels ont jusqu' ici reussi ase soustraire aux actes de poursuite et la securite des victimes, des temoins et de leurs proches n'est pas assuree dans leur propre pays . On peut se demander si l'experience des deux Tribunaux ad hoc justifie I'influence qu 'elle semble avoir exercee sur Ie Statut de Rome. Si l'on rappelle, en effet, que la Cour penale permanente ne sera competente qu' a l' egard de faits commis sur Ie territoire ou par un ressortissant d'un Btat Partie, les risques encourus par les temoins ou les victimes supposent qu 'apres avoir reconnu la competence de la Cour cet Btat ait change de regime politique ou soit tombe dans Ie chaos. C' est sous cette reserve qu' il y a lieu de considerer les mesures de protection des victimes et des temoins inscrites dans le Statut de Rome. Deux series de mesures sont prevues. La premiere, qui n' a pas d'incidence sur Ie deroulement de la procedure consi ste en la creation "au sein du Greffe" d'une "division d'aide aux victimes et aux temoins" (art. 43, par. 6). La plupart des autres dispositions invitent, tantot Ie Procureur (art. 54, par. ler, b), tantot la Chambre preliminaire (art . 57, par. 3 c), tant6t la Chambre de premiere instance (art. 64, par. 2), a prendre en consideration "la situation personnelle des victimes et des temoins (selon Ie premier de ces deux articles), a assurer "la protection et le respect de la vie privee de la victime et des temoins" (scion le deuxieme) et a avoir "pleinement egard a la necessite d'assurer la protection des victimes et des temoins'{selon Ie troisieme), Outre l'article 65, paragraphe 4, prevoyant la possibilite d'un complement d'enquete "dans l'intere; de la justice, en particulier dans I'interet des victimes", c'est l'article 68 qui regie de la maniere la plus circonstanciee "la protection et la participation au proces des victimes et des temoins" selon les termes de l'intitule de cet article, qui melangent deux ordres d'idees assez differents. Aussi longtemps que les principales garanties d'un Btat de droit ne sont pas retablies dans Ie pays ou les crimes ont ete commis et dont sont originaires les victimes et les temoins, les uns et les autres doivent etre proteges . La participation concerne les seules victimes et cela tend a leur donner la parole au cours de la procedure, de maniere a exercer une influence sur Ie deroulement de celle-ci .

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Quant aux mesures protectrices, elles ont nece ssairernent pour effet de porter atteinte aux droit s de l' accuse, Tant6t en Ie privant du princ ipe de la publicite des deb ars (art. 68, par. 2, derogeant a I'article 67), tantot, ce qui est plus delicat , en ecartant la nature co ntradic toire de I' adm inistration des preu ves dont ce rtains eleme nts ne sont pas co mmuniques a l' accuse (art . 68, par. 2 et 5). Les redacteur s de cet article ont ete tres consc ients du co nflit d'interets qu 'ils institu aient et il appartiendra a la Cour de veiller a ce que les mesures ainsi ordonnees ne soient "ni prejudiciable s ni contraires aux droit s de la defen se et aux exigences d'un proces equitable et impartial" (art. 68 , par. Ier, par. 3 et par. 5). La formul e est peu satis fa isante car le s mesures a uto risees auront nece ssairernent de telles con sequ ences. II s'agit, plus exactement , de tenir en equil ibre les interets des victimes et des temoins et les droits de defense de I' accuse. Avant un exam en so mmaire de ce probl eme il convient de relever les term es dans lesquels I'article 68 prevoit une form e de participation des victimes . Les vues et preoccup ation s de ce lles -ci peu vent etre ex posees " par leurs representants legaux" , "a des stades de la procedure qu ' elle [Ia Cour 1estime appro pries et d ' une rnaniere qui n'est ni prejudi ciabl e ni contraire aux droits de la defense et aux exigences d 'un proces equitable et imparti al" (art. 68, par. 3). La reserve suggere que cette " maniere" pourrait consister en I'exclu sion d'un debar contradictoire sur les positions adoptees par la victime. Quand il s' agit des mesures prises conformernent aI'article 68, par. 2 (deroga tion au principe de la publ icite des debar s et au carac tere contradictoire des preuv es) les "vues des victimes et des temoins" appartiennent aux "c irco nstances" auxquelles la Cour doit avoir egard, Le demier des trois problernes annonces ci-dessus a pour objet les obstacles que Ie droit de defense de l' accuse met a certaines mesures de prote ction des victimes et des tem oin s. L' articl e 20, paragr aph e ler, du Statut du Tribunal pour l'exYougoslavie pose clairement les termes du dilemm e : I . La Chambre de premi ere instance veille a ce que Ie proces soit equitable et rapid e et ace que I' instance se deroul e conforme ment aux regles de procedure et de preuve, les droits de l'accuse etant pleinement respectes et la protection des victimes et des temoins dilment ass uree, La formule est claire me nt contradictoire : on ne sa urait a la foi s respe ct er "pleinernent" les droits de I' accu se et gara ntir que la protection des victimes et des temoin s soit "dfirnent assuree". Tel qu 'il a ete modi fie Ie 30 novembre 1999 ,13

IJ

Voir Ic tcxtc dans Ie Bulletin de la Cour, "Ju diciaire" , no. 9, p. 8.

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I' article 75 du Reglement de procedure se divise en quatre partie s. Sous la lettreA, Ie texte cont ient une indetermination semblable a celie de I' article 20, paragraphe Ier, du Statut : la cond ition posee ("que les dites mesures ne portent pas atteinte aux droits de l' accuse") est nettement irrealisable, Les mesures detaillees sous la lettre B de I'article 75 ne peuvent etre ordonnees que sous la reserve de principe formulee sous la lettre A. Limitant la publicite des debats, Ie controle par I' opinion publique des documents sur lesquels Ie Tribunal a pris appui et restreignant la nature contradictoire de I'administration des preuves, de telles mesures portent ineluctablement atteinte aux droits de I' accuse . Aussi le Tribunal a-t-il ete contraint a un "exercice d'equilibrage" (balancing exercise) selon la formule d'une decision australienne citee par Ie jugement du 10 aoiit 1995 14 • La jurisprudence du Tribunal ne parait pas entierement fixee sur ce point, un jugement plus recent ayant decide que durant Ie proces proprement dit "c' est Ie droit de l'accuse a un proces equitable qui doit prevaloir et exigera que soit leve en sa faveur le voile de I'anonymat, meme si ce voile doit continuer a obstruer la vue du public et des medias?". L'exercice d'equilibrage est d'un maniement difficile" et Ie lieu OU se situera Ie point d'equilibre dependra des circonstances, ce qui inclut la gravite des menaces ou des risques auxquels Ie temoin ou la victime sont exposes, Ie retablissement progressif de I'Etat de droit dans les territoires de l'ex-Yougoslavie etant I'un des parametres qu'il faudra considerer a I'avenir. Cela explique sans doute que la Cour europeenne des droits de I'homme ait jusqu'ici ete peu accueillante aux arguments avances par I'Etat defendeur a I' appui de la conformite a la Convention de sauvegarde des droits de I'homme et des libertes fondamentales, de condamnations penales prononcees sur la foi de declarations faites a la gendarmerie mais que les temoins avaient refuse de con firmer a I' audience'?ou du temoignage de personnes dont I' identite n' avait pas ete devoilee ."

14

15

16

17

18

Decision du 10 aout 1995, cite 11 lanote II, suivie sur ce point de l'opinion dissidente dujuge Stephen. Decision du 17 octobre 1996, Affaire IT-95-14-T, Procureur c. Bla iklc , Pour une analyse des deux decisions, voir notamment : Faiza Patel King et Anne-Marie La Rosa , "T he Jurisprudence of the Yugoslavia Tribunal 1994-1996" , I EJIL (1997 ), 123-179, 146-152,157-160,177-179 . Arret du 24 novembr e 1986, Affaire Unterpertinger, PubLications de La Cour, Serie A, vol. 110. Arret du 20 novembre 1989, Affaire Kostovski, vol. 166, p. 21, par. 44.

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Dans les deux cas l'accuse est prive du droit de se confronter aux temoins et les circonstances de la seconde affaire n'etaient pas tellement eloignees de celles que connait Ie Tribunal pour I'ex-Yougoslavie : il s' agissait de la lutte contre Ie crime organise, Ie membre de I'organisation criminelle qui avait donne sous Ie couvert de I' anonymat des informations utilisees par I' accusation etant expose a des represailles de la part des dirigeants de cette organisation. Quelle que soit sur ce point I'evolution de la jurisprudence des tribunaux penaux intemationaux, force est de juger mythique lidee meme d'un equilibre entre deux objectifs aussi contradictoires que la protection des victimes et des temoins et les droits de defense des accuses . II s'agit d'objectifs antagonistes et la pretendue methode du " balancing test" consiste a faire pencher I'un des plateaux de la balance, au gre des circonstances, ce qui impose de reconnaitre un pouvoir etendu auxjuges.

III. LA SA1SlNE DES JURIDICTIONS ETATIQUES ET LES CONCOURS DE COMPETENCE JURIDICTIONNELLE

L'exercice de lajustice repressive est un attribut de la puissance (certains diront , de la souverainete) etatique. Le Statut de Rome de la Cour penale internationale ne s'est pas ecarte de cette tradition puisque la competence de la Cour ne s'cxerce qu'a l'egard des Btats ayant reconnu cette competence par leur adhesion au Statut (art. 12, par. ler). Les criteres alternatifs de rattachement a I'Btat sont eux aussi tres c1assiques, soit Ie lieu ou le crime a ete commi s (art. 12, par. 2, a), soit la nationalite de l'accuse (art. 12, par. 2, b). La competence de la Cour internationale n' exclut pas dans tous les cas celie des juridictions etatiques . La situation la plus simple est celie ou un Etat Partie a defere les faits au Procureur (art. 14). Le Statut a regie la concurrence entre les poursuites exercees dans" un Etat ayant competence en l'espece", ce qui rend en principe la saisine de la Cour irrecevable (art. 17). L'article 20 applique aussi, toujours en principe, la regle Non bis in idem aux poursuites qui auraient deja fait I' objet d'un jugement par une autre juridiction. La subsidiarite de la competence de la Cour penale internationale est d'autant plus evidente que celle-ci n'est competente que pour "les crimes les plus graves ayant une portee intemationale" (art. ler) et que les circonstances requises par les articles 7 et 8 ne seront pas toujours reunies , Un militaire ayant commis un crime de guerre isole et ne satisfaisant pas aux conditions de I' article 8 demeure justiciable - et exclusivement justiciable - des juridictions etatiques competentes. La concurrence entre les tribunaux etatiques et les cours penales intemationales se double d'un conftit de juridiction des tribunaux etatiques entre eux. Con forme-

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ment au double critere adopte par l' article 12, paragraphe 2, precite, la competence internationale de I'Etat en matiere repressive est en principe justifiee par Ie critere de la territorialite, Ie cas echeant complete du principe de nationalite active: aucun Etat n'excede les Iimites de sa competence internationale en jugeant ses propres nationaux, mais tous les Etats ne se prevalent pas de cette competence. II existe plusieurs autres causes d'extension de la competence etatique, soit la nationalite de la victime (principe de nationalite passive), soit une serie d'inculpations interessant la collectivite etatique comme telle (fausse monnaie, infractions contre la surete de I'Etat, etc.). Toutefois, la poursuite de tels faits requiert en principe que l' accuse ait ete trouve dans le territoire du pays exercant une telle competence"; ce qui reintroduit une forme de territorialite et, en outre, garantit le caractere contradictoire de la procedure. Un premier con flit de juridiction peut opposer aux tribunaux de I'Etat de localisation du crime ceux de I'Etat dont l'accuse a la nationalite, La presence de celuici sur Ie territoire de I'un ou de l'autre Etat permettra de departager aisernent les deux titres de competence, en raison des avantages d'une procedure contradictoire. Si cette exigence n' est pas satisfaite et acondition que la loi de procedure autorise la contumace, Ie tribunal du lieu du crime parait Ie mieux a meme de reunir les preuves et d'entendre les temoins. On rappellera que Ie Tribunal militaire international de Nuremberg a beneficie du double titre de competence: territorialite et presence des inculpes sur Ie territoire allemand soumis ala juridiction des puissances victorieuses. Compte tenu de I' exigence inscrite dans Ie statut des tribunaux penaux internationaux existants ou en projet, la contumace, qui est inconnue des systemes de common law, n' a pas ete prevue; de plus, ces tribunaux ne sauraient beneficier des prerogatives decoulant du principe de territorialite, Leur competence se limite des lors aux accuses effectivement deferes au Tribunal ou a la Cour et pour reunir les preuves ils ont besoin de la cooperation des Etats sur Ie territoire desquels ces preuves se localisent. Plusieurs decisions du Tribunal pour l' ex- Yougoslavie ont fait apparaitre la difficulte d'obtenir sur ce point la cooperation d'Etats recalci-

trams." Une extension notable de I'exercice des competences pen ales etatiques a pour origine Ie concept de "competence universelle", II apparait dans plusieurs instru-

19

20

Voir par exemple I' article 12 de la loi beige du 17 avril 1878 contenant Ie titre preliminaire du Code de procedure penale. Voir parmi d' autres I' arret de la Chambre d' appel du 29 octobre 1997, IT-95-14-AR 108bis, Ie Procureur c. Tihomir Blaskic ,

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ments internationaux mettant a charge des Etats Ie devoir de reprimer certains crimes internationaux particulierement graves, notamment Ie genocide et la torture. Le concours avec la competence des juridictions internationales est d'autant plus aigu que les crimes appartenant aux conditions d'exercice de la competence universelle coincident pour la plupart avec ceux qui entrent dans la competence des juridictions penales internationales. Le principe de nationalite passive a ete une des voies d' acces a une telle competence, invoquee notamment en Espagne et en Italie quand les actes criminels allegues avaient ete commis au prejudice d'un ressortissant d'un de ces Etats. L' article 689-1 du code de procedure penale francais subordonne la competence universelle a I' egard de crimes commis hors du territoire de la Republique a la condition que l'accuse "se trouve en France". Dans la loi du 16juin 1993 relative a la repression des violations graves du droit international humanitaire, modifiee par la loi du 10 fevrier 1999, Ie legislateur beIge a fait un pas de plus en omettant la condition generalement retenue pour un exercice de la competence sur les crimes commis hors du territoire du Royaume, a savoirque I'accuse ait ete trouve en Belgique . La loi nouvelle permet des lors a un juge d'instruction beige de delivrer un mandat d'arret international a charge d'un etranger ne se trouvant pas en Belgique , pour des faits qui auraient ete commis hors du territoire du Royaume. La nouvelle loi beige ouvre ainsi aux victimes une possibilite illimitee de saisir les juridictions etatiques d'une action penale en raison de l'un des crimes de droit international enumeres par les articles ler a 4 de la loi du 16 juin 1993, modifies par la loi du 10 fevrier 1999. En effet, non seulement Ie droit beIge prevoit la faculte pour la victime d'un crime ou d'un delit de se constituer partie civile durant I'instance penale, mais elle peut aussi en se constituant partie civile aupres d'un juge d'instruction declencher I' action publique ." Le juge est alors Iegalement tenu d'instruire la cause jusqu'a ce que, sur les requisitions du Procureur du Roi ou a la requete de I'inculpe, la chambre du conseil du tribunal correctionnel I'en ait dessaisi ." Unjuge d'instruction de Bruxelles a deja decerne plusieurs mandats d'arret sur plainte d' etrangers residant en Belgique ou de personnes ayant acquis la nationalite belge" . L'un de ces mandats delivre contre une personne qui etait a I'epoque ministre

21

C. inst. erim ., art. 63 et s.

22

C. inst. erim ., art. 127.

23

Voir par exemple I'ordonnanee decernant Ie 6 novembre 1998 un mandat d'arret international eontre Ie general Augusto Pinoehet Ugarte, Joum. Trib. 1999,308, note Joe Verhoeven. C'etait avant I'cntree en vigueur de la loi du 10 fevrier 1999. Au eours de I' Affaire relative au

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des Affaires etrangeres de la Republique democratique du Congo a donne naissance a une action de cet Etat contre la Belgique devant la Cour internationale de Justice. Par ordonnance du 8 decembre 2000, la Cour a rejete a l' unanimite la demande de la Belgique tendant a ce que I' affaire soit rayee du role el elle a dit par quinze voix contre deux que les circonstances telles qu' elles se presentaient actuellement a la Cour n' etaient pas de nature a exiger I' exercice de son pouvoir d' indiquer des mesures conservatoires comme Ie voulait la Republ ique democratique du Congo. L' arret est toutefois accompag ne de deux opinions dissidentes, de deux opinions separees et de trois declarations. Dans son opinion dissidente Ie juge Francisco Rezek releve que, pour la premiere fois, la Cour est saisie d'un litige suscite par "un acte de juridiction local cense se fonder sur Ie seul principe de la ju ridiction universelle" (par. 4) et il conclut en faveur de la demande de mesures conservatoires. La declaration de la juge ad hoc belge, Madame Chri stine Van den Wyngaert, indiqu e la complexite de la question et souhaite que la Cour puisse se prononcer promptement sur celle-ci. Plusieurs questions de droit doivent etre considerees : I' exercice par un Etat d' une competence penale universelle n'est pas comme tel contraire au droit international, surtout quand elle a pour obje t la repression de crimes de droit international. Toutefois si elle devait etre generalisee, I'exercice de pareille competence risquerait de conduire a des conflits insurmontables. La seconde question a pour objet Ie conflit entre un tel exercice et les immuni tes traditionnellement garanties par Ie droit intern ational. L' article 5, paragraphe 3, de la loi beige du 16 j uin 1993 rnodifiee par la loi du 10 fevrier 1999, aux termes duquel l' "irnrnunite attachee a la qualite officielle d'une personne n'ernpeche pas I'a pplication de la presente loi" n' est qu' une disposition de droit interne qui ne saurait prevaloir contre une regie de droit international. II est vrai que Ie Tribunal sur l' ex-Yougoslavie a decerne un acte d' accusation contre Siobodan Milosevic qui etait, a l' epoque, president de la Republ ique de Yougoslavie. Mais on ne saurait assimiler un tribunal etatique a une

mandat d' arret du II avril 2000, I' agent du Gouveme ment beIge a expose devant la Cour intemationale de Justice que, sur les douze plaignants, cinq etaient de nationalite beige et sept de nationalite congolaise, tous etant domicilies en Belgique (ordonnance du 8 decembre 2000, § 25). L'arg ument consisterait arenforcer Ie principe de competence universelle d'une regie plus traditionnelle, la competence deduite de la nationalite de la victime. ll n' est toutefois guere convaincant : s'i l est vrai que Ie principe de personnalite passive est mis en ceuvre par l'article 10,5°, de la loi du 17 avril 1878, c' est a la condition que l' inculpe ait ete trouve en Belgique selon I' article 12, alinea l er , de la meme loi. Le droit comm un beige et l' application faite en Belgique de la competence universelle soot deux titres de competence distincts.

La Condition des Victimes de Crimes de Droit International

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juridiction internationale instituee par Ie Conseil de securite des Nations Unies. Au surplus, que des fonctions autrefoi s protegees par une irnmunite couturniere ne puissent faire obstacle a I'exercice de I'action repressive ne permet pas d'etendre la meme conclusion a des titulaires actuels de pareille fonction dans un pays avec lequel I'Etat qui entend exercer une action repressive entretient des relations diplomatiques normales. lei , une fois de plus, Ie precedent de Nuremberg merite l'attention : les fonctions officielles des accuses et les imrnunites qui auraient pu s'y attacher avaient pris fin. C'est aussi la source d'une difference entre I'affaire Pinochet et celie d'un chef d'Etat ou d'un ministre en fonction. Que la competence universelle ne soit pas, comme telle, contraire au droit international, rneme si elle est exercee en I'absence de tout critere de rattachement territorial ou personnel a I'Etat dont une juridiction penale est saisie, ne prejuge pas la solution de la seconde question , a savoir I'exercice d'une telle competence it l'egard d'une personne pouvant se prevaloir d'une immunite garantie par Ie droit international. En d'autres termes, dans les limites de lajurisprudence de l'arret du Lotus, qui ne parait pas depassee sur ce point," I'Etat a Ie pouvoir de regler comme il I'entend I'exercice de lajuridiction repressive sur son territoire sauf si une regle de droit international s' y oppose. Les regles coutumieres sur les irnrnunites ontelles ce caractere? Faut-il, au surplus, distinguer selon que les faits criminels ont ete commis it une epoque ou l'accuse exercait une fonction protegee par une irnmunite qu'il a perdue au moment de I'exercice des poursuites (affaire Pinochet) ou que l'accuse exerce encore une telle fonction it ce moment (affaire Congo c. Belgique)? C'est sur la seconde de ces deux hypotheses que la Cour internationale de Justice s'est prononcee en condamnant Ie Belgique du chef de la delivrance d'un mandat darret international it charge d'un ministre en exercice: Affaire relative au mandat d 'arret de 11 avril 2000 (Republique democratique du Congo c. Belgique) , arret du 14 fevrier 2002 . Mais, insistons-y, la question ne se pose qu'a I'egard d'une juridiction etatique, e1le ne saurait valoir it I' egard d' une juridiction penale internationale. Dans un dialogue anirne par Ie president Antonio Cassese auquel cette contribution est amicalement dediee, Bert Roling qui fut membre du Tribunal de Tokyo avait ernis des craintes sur les risques de tension internationale auxquels pourrait

24

Cour permanente de Justice internationale, arret du 7 septembre 1927. Affaire du Lotus. France c. Turquie, Publications de la CPJ I, Sene A, no. 10.

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conduire l' exercice de la competence universelle ." L' affaire relative au mandat d'arret du II avril 2000 est une illustration actuelle de pareille crainte .

IV. LA REPARATION DES DOMMAGES INFLIGES AUX VICTIMES

A. Principes de reparation par Ies Tribunaux ad hoc et par la Cour penale internationale Pareille reparation peut prendre diverses formes, soit la restitutio in integrum, telle la restitution des biens materiels dont la victime d' un crime de droit international a ete privee, ou le retour dans le pays d'origiue, soit le paiement d'une indemnite pecuniaire. Le statut des deux Tribunaux ad hoc ne contient aucune disposition a cet egard, mais les articles 105 et 106 de chacun des deux Reglements de procedure et de preuve des Tribunaux ad hoc ont prevu, le premier la restitution de biens, le second l'indemnisation des victimes . Alors que la restitution peut etre ordonnee par le Tribunal Iui-meme, l'indemnisation n'aura lieu qu'a la suite de la transmission du jugement par Ie Greffier "aux autorites competentes des Etats concernes" (art. 106, A). Ces Etats ne sont pas autrement designes. "La victime ou ses ayants droit peuvent, conformement ala legislation nationale applicable, intenter une action devant une juri diction nationale ou toute autre institution competente, pour obtenir reparation du prejudice" (art. 106, B). Pareil texte n'ajoute rien au droit commun de Ia responsabilite civile ou de la responsabilite de Ia puissance publique en vigueur dans les Etats ou des actions sont excrcees. Selon l'article 106 (c) de chacun des deux Reglements "le jugement du Tribunal est definitif et determinant quant a la responsabilite penale de la personne condamne e" , mais, encore une fois, cette disposition abandonne au droit etatique l'etendue de l'incidence d'une telle responsabilite sur l'action civile ou administrative ulterieure, Le Statut de Rome a ete plus preoccupe du droit areparation des victimes. La question est reglee notamment par 1'article 75. En outre l'article 79 prevoit la creation d'un Fonds au profit des victimes. Selon 1'article 75, la Cour etablit "des principes applicables aux formes de reparation" et eUe peut aussi "sur demande ou de son propre chef dans des circonstances exceptionnelles, determiner dans sa decision l'ampleur du dommage, de la perte cau see aux victimes ou a leurs ayants

25

Bert ROling and Antonio Cassese, TheTokyo Trial, edited and with an introduction by Antoni o Cassese (Cambridge, The Polity Press, 1993), pp. 95-98 .

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droit, en indiquant lcs principes sur lesquels elle fonde sa decision" (art. 75, par. I a). "Sur demande" signifie que la victime ou ses ayants droit peuvent reclamer une telle reparation : il appartiendra au reglement de procedure et de preuve de determiner les formes dans lesquelles les personnes interessees pourront s' adresser a la Cour. II faudra aussi preciser les motifs pour lesquels la Cour pourra rejeter une demande d'indemnisation, Le paragraphe 3 ne contribue pas a rendre plus claire I' etendue des droits proceduraux de la victime : avant de rendre son ordonnance, "la Cour peut solliciter et prend en consideration, les observations de la personne condamnee, des victimes, des autres personnes interessees ou des Btats interesses, et les observations formulees au nom de ces personnes ou de ces Btats" . Un veritable debar contradictoire entre la victime et l'accuse n'est pas envisage. Ce qui paralt clair est que , sans s'inspirer directement de l'institution de la "constitution de partie civile", Ie Statut de Rome fait aux victimes une place mais qui demeure largement abandonnee ala discretion de la Cour. L' article 93, paragraphe ler et I'article 109 sont declares applicables aux condamnations "civiles" prononcees par la Cour (art. 75, par. 4 et 5). Le probleme essentiel, et qui ne sera que tres partiellement resolu grace aux actifs du Fonds au profit des victimes dont la creation est prevue par I'article 79, est celui de I'msolvabilite des personnes penalement condamnees. Eu egard a la definition tres restrictive de la competence de la Cour, les victimes adedommager seront tres nombreuses et le prejudice eleve . Seule la responsabilite de I'Btat sur Ie territoire duquelles faits criminels ont ete commis et dont leurs auteurs avaient la nationalite - Btat par hypothese Partie au Statut - serait de nature a ameliorer la condition des victimes. Encore faut-il supposer que les dirigeants de cet Btat regenere soient disposes apurger Ie passif criminel des gouvernements qui les ont precedes. Pareille responsabilite de I'Btat n'a pas ete envisagee par Ie Statut de Rome: ses seules obligations sont de preter assistance a l'execution des ordonnances prononcees par la Cour contre les condamnes (application conjuguee des articles 75 et 93, paragraphe ler) et de reconnaitre, dans leur ordre interne, la force executoire des memes ordonnances (application conjuguee des articles 75 et 109). La responsabilite internationale de I'Btat auquel est imputable un crime de droit international ne pourra etre etablie que si cet Btat est attrait par un autre Btat devant la Cour internationale deJustice, comme ce fut Ie cas dans I'Affaire sur I' AppLication pour La prevention et la repression du crime de genocide, actuellement pendante entre la Bosnie-Herzegovine et la Yougoslavie.v

26

La Cour a deja rendu deux decisions en cettc affaire , un arret du II juillet 1996 (CIJ Recueil 1996, p. 595) rcjetant les exceptions preliminaires de la Yougoslavie et une ordonnance du

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B. Les principes fondamentaux et directives adoptes par la Commission des droits de I'homme Adoptes par la Commission des droits de l'homme au cours de sa cinquante-sixieme session (supra, note 3), ces principes vont beaucoup plus loin que Ie Statut de Rome. II s'agit de devoirs qui s'imposeraient aux Etats et qui incluent l'obligation "d'assurer l'acces effectif des victimes a lajustice, dans des conditions d'egalite, quelle que soit la personne responsable en derniere analyse de la violation" (par. 3, c) et celie "d'assurer reparation aux victimes ou de leur permettre d'obtenir plus facilement reparation" (par. 3, e). De maniere un peu sibylline, Ie paragraphe 12 parait ouvrir la possibilite d'un acces aux juridictions internationales. Les deux dispositions les plus novatrices sont Ie paragraphe 16 qui met Iedevoir de reparation acharge de I'Etat "pour ses actes ou omissions qui constituent des violations des normes du droit international humanitaire et des droits de l'homme" et Ie paragraphe 20 qui etend la meme obligation a I'Etat ou au Gouvernement ayant succede a ceux sous l'autorite desquels la violation s'cst produite. Telle fut, notamment, l'attitude adoptee en principe par Ie Gouvernement de la Republique federale d' Allemagne aI'egard de certaines categories de victimes des crimes du Troisieme Reich.

V. CONCLUSION

II Ya encore un long chemin a parcourir avant que les victimes de crimes de droit international n'obtiennent I'acces effectif a la justice en ce qui concerne tant Ie declenchernent de I'action repressive et leur participation au proces criminel que la reparation de leur dommage. En premier lieu, plus les violations des droits fondamentaux ont ete massives et systematiques plus la victime se trouve elle-meme entrainee dans ce maelstrom au les crimi nels ant jete un grand nombre de personnes. Dans la meme hypothese , les crimes ont ete commis, cornmandes ou toleres par les organes les plus eleves du pouvoir etatique, ce qui desequilibre encore davantage Ie rapport de force entre Ie criminel et sa victime . II n'y a pas de progres reel a attendre si la victime ne peut beneficier de la cooperation sincere des autorites de I'Etat auquel les violations

17 decembre 1997 declarant reeevables les demandes reeonventionnelles de eet Etat (CIJ Recueil 1997, p. 243).

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sont imputables. L'avenir est d'autant plus bouche que, hormis I'hypothesc exceptionnelle des deux Tribunaux ad hoc, la juridiction penale internationale ne sera competente qu'a l'egard des Etats ayant reconnu cette competence. Quant a I'action anarchique des juri dictions etatiques, elle suscite de serieux problemes de droit international a la solution desquels I'Affaire relative au mandat d'arret du II avril 2000 a donne a la Cour internationale de Justice I'occasion de contribuer, La seconde observation a pour objet l'acces des victimes a la reparation appropriee et effective a laquelIe elles ont droit. lei encore Ie caractere massif des violations les plus graves rend pareille reparation tres aleatoire. Les principes et directives elabores par la Commission des droits de I'homme sont autant de pas dans la bonne direction mais les debats durant la Conference diplomatique qui a adopte aRome Ie 17 juillet 1998 le Statut de la Cour penale internationale et la circonstance que ce Statut n'a merne pas ete signe par trois des Etats les plus peuples de la Terre ne permettent pas d'esperer que des principes aussi novateurs obtiennent I'assentiment des Etats, a defaut duquel, on ne saurait assez Ie repeter, aucun progres decisif ne sera possible.

790

36

APPORT DE LA PRATIQUE DU TRIBUNAL PENAL INTERNATIONAL POUR L'EX-YOUGOSLAVIE A LA PROTECTION DES DROITS FONDAMENTAUX DE LA PERSONNE HUMAINE Almiro Rodrigues

INTRODUCTION Le Conseil de securite des Nations Unies, dans Ie but de faire cesser les violations massives des droits de l'homme commises sur ce territoire 11 partir de 1991, I a cree IeTribunal Penal International pour I' ex-Yougoslavie, une juri diction internationale habilitee 11 juger les violations graves du droit international humanitaire, conventionnel et coutumier. Deux branches du droit international sont sollicitees : les droits de l'homme et Ie droit humanitaire. Les "droits fondamentaux de la personne humaine", inderogeables en temps de paix comme de conflit arme, sont precisement situes au point d'intersection entre les deux . Quelle sera la marque laissee par Ie TPIY, institution par nature ephemere, sur les droits fondamentaux et par voie de consequence sur la doctrine des droits de

I'homme? La relation qui existe entre Ie droit international des droits de l'homme et Ie Tribunal est 11 double sens : cc droit a influence la creation du Tribunal, la formulation de son Statut (ci-apres Ie Statut) et de son Reglement de procedure et de preuve (ci-apres RPP),2 en retour, la pratique du Tribunal constitue un apport aux droits fondamentaux, sur Ie plan substantiel com me sur le plan formel.

I

2

Resolution 808 du 22 fevrier 1993 (SIRES/808 (1993» et Resolution 827 (1993) du 25 mai \993 (SIRES/827 (1993». Voir, par exernple, Abi-Saab George s, "Droits de \'homme et juridictions penates internationales Convergences et tensions", Melanges en l'honneur de Nicolas Valticos, Droit et justice, Paris, Pedone, 1999, pp. 245-253 ; ou encore La Rosa Anne Marie, "Reflexions sur

L.c. Vohrah et at. (eds.), Man 's Inhumanity to Man, 79\-826 ©2003 Kluwer Law International. Printed in the Netherlands .

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En premier lieu, les droits fondamentaux de la personne humaine sont affectes dans leur substance. En effet , la jurisprudence du Tribunal se nourrit de concepts et de raisonnements ernpruntes au droit international des droits de I'homme et adaptes au contexte du droit international penal. L' enrichissement qui en resulte pour ces notions et ces raisonnements contribue assurement a une protection accrue des droits fondamentaux de la personne humaine. Nous envisagerons ainsi, dans une premiere partie, les apports du TPIY la protection des droits fondamentaux substantiels. En second lieu, la pratique du Tribunal offre aux acteurs du proces penal international une occasion sinon unique, du moins premiere, de voir mis en ceuvre leurs droits fondamentaux formels .' Elle contribue a I'enrichissement de ces derniers dans un processus de confrontation permanente avec les exigences de la justice internationale penale. Nous verrons done, dans une seconde partie, les apports du TPIY ala protection des droits fondamentaux formels,

a

1. APPORTS DU TPIY A LA PROTECTION DES DROITS FONDAMENTAUX SUBSTANTIELS Les droits fondamentaux substantiels se situent au point d'articulation entre les droits de I'homme, les exigences propres a lajustice internationale et les regles du droit international humanitaire. L'interpretation de son Statut (articles 2, 3,4 et 5) par Ie Tribunal est c1airement tournee vcrs la protection des droits fondamcntaux substantiels. Sa jurisprudence conduit a s'interroger sur l'articulation entre ces branches et met en evidence certaines limites de la theorie classique des droits de I'homme.

I'apportduTribunal penal international pourI'ex-Yougoslavie audroit11 unproces equitable",

R.G.D.I.P. 1997-4, p. 947 : "le Tribunal est un produit des droitsde l'homme". 3

Sur la distinction entre les droits formels et substantiels, les substantive rights et les procedural rights voir: Robertson David, A Dictionary ofHuman Rights, London, Europa PublicationsLimited, 1997, pp. 161-162 ou encore sur la notion voisine de droitsde sauvegarde par opposition auxdroitsfondateurs des libertes, in PettitiL.E., Decaux E., ImbertP.H., La Convention europeenne des droits de l'homme, Commentaire article par article, Paris, Economica, 1999, p. 240.

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A. L'interpretation du droit applicable par Ie tribunal La pratique du TPIY revele une conception extensive des infractions relevant de sa competence materielle (notamment des articles 2 et 3 du statut) et Ie developpement de notions clefs (comme celIe de dignite humaine) ou de modeles d'interpretation qui s'apparentent plus a la mise en ceuvre des droits fondamentaux dans Ie cadre du droit international des droits de I'homme, que dans Ie cadre du droit international humanitaire. I. Interpretation extensive des articles 2 et 3 du Statut a. Interpretation de l'article 3 du Statut Scion la jurisprudence du TPIY, I' article 3 du Statut, (violations des lois ou coutumes de la guerre), doit etre considere comme un article residue! permettant de mettre en oeuvrela responsabilite d' auteurs de crimes non couverts par les articles 2, 4 ou 5 afin qu'aucune violation grave du droit humanitaire n'echappe a la competence du Tribunal. La violation grave d'une regle du droit international humanitaire, conventionnelle ou coutumiere, donne naissance a la responsabilite individuelIe de son auteur et est incrirninable .' La Chambre d'appel a en outre souligne qu'un certain nombre de normes du droit international humanitaire ne couvraient plus seulement les situations de conflits armes internationaux mais egalernent internes et considere que leur violation donne bien naissance a une responsabilite individuelle.' Cette interpretation extensive de I'article 3 resulte du fait que, dans Ie contexte de la lutte armee en ex-Yougoslavie, chercher aisoler ce qui releve du conflit international et ce qui n' en releve pas est une tache cxtremement delicate," La demarche du TPIY consiste done a faire profiter les conflits non internationaux des regles plus elaborees applicables aux conllits internationaux.

4

5

6

Le Procureur c/ Dusko Tadic, 94-I-AR72, Decision sur la competence, 2 octobre 1995, par. 91 (ci-apres "Appel Tadic I") ,

L' article 3 commun aux Conventions de Geneveentre par ce biais dans Ie champ de I' article 3 du Statut; voir Appel Tadic I, par. 102 et par. 134. La Chambre d' appel , dans son arret du 2 octobre 1995, a ainsi juge rnajoritairement que "les conflits dans I'ex- Yougoslavie reverent des caracteres de conflits 11 la fois internes et internationaux" laissant aux Chambres le soin de decider au cas par cas de la nature du conflit (par. 77) .

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Un tel raisonnement, s'il s'inscrit apparemment dans la logique de retablissement et de maintien de la paix et de la securite internationales voulue par Ie Conseil de securite, correspond plus encore a une logique de protection des droits fondamentaux, dont le caractere principal est d'etre "inderogeables".

b. Interpretation de l'article 2 du Statut L'application de I'article 2 du Statut (infractions graves aux Conventions de Geneve de 1949), pose egalernent le probleme de la qualification du conflit arrne et du statut des victimes. Or, transposant aI'article 21a logique de I'article 3, on peut en venir ase demander si le critere d' internationalite du conflit devrait etre maintenu. Ainsi, dans l'affaireAleksovski , la majorite de la Chambre de premiere instance avait decide que les victimes n'entraient pas dans la categoric des personnes protegees dans le cadre d'un conflit international. Nous avons estime que cela aboutit aproteger certaines victimes en un temps et en un lieu donne mais pas des personnes victimes de faits similaires en d'autres temps et en d'autres lieux , alor s meme que toutes ces victimes se situent dans la globalite du conflit.? En effet, considerant les changements ou les cumuls de nationalites intervenus a la faveur de I' eclatement de l'ex- Yougoslavie," il apparait peu pertinent de s' attacher aetablir la nationalite differente des victimes et des auteurs. Ce qui demeure fondamental , c'est que l'accuse se soit deliberement comporte en ressortissant d'un Etat tiers par rapport ases victimes.? Entre l'indifference totale quant a la nationalite des personnes protegees, trait caracteristique du droit international des droits de I'homme.!" et les strictes exigences du droit humanitaire en la matiere, le TPIY cherche done une voie moyenne. lis' appuie sur une approche globale du conflit yougoslave, concevable en reference a la protection d'une valeur superieure laquelle renvoie aux droits fondamentaux de la personne: la dignite humaine.

7

8

9

10

Le Procureur c/ Zlatko Aleksovski, IT-95-14/1 , Jugement, 25 j uin 1999, (ci-apres "Jugernent Aleksovski") Op . diss . Juge Rodrigues, par. 3 et par. 22 . Sur cette difficulte voir Le Procureur c/Tihomir Blaskic, IT-95-14- T, Jugement, 3 mars 2000 (ci-apres "Jugernent Blaskic"). Jugement Aleksovski , Op . diss . Juge Rodrigues, par. 6. Car si les droits reconnus sont bien ceux de I'homme en general, ils doivent l'etre 11 tout etre humain soumis 11 la competence d'un Btat ou d'une entire etatique qui veut bien les lui garantir.

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2. Interpretation des infractions sous-jacentes de mauvais traitements Les larges categories d'infractions definies par Ie Statut peuvent etre appliquees lorsque sont reunis leurs elements constitutifs, parmi lesquels les infractions dites sous-jacentes qui les materialisent.!' La encore, Ie TPIY dispose d'une marge d'appreciation importante qui n'a pour limite que celie posee par Ie principe de legalite. Elle est exploitee de facon extensive, au plus grand avantage des droits fondamentaux . Les infractions sous-jacentes de mauvais traitements possedent des formes et des degres divers, mais la jurisprudence du TPIY s' est efforcee de leur donner des definitions identiques, a quelques elements pres qui permettent notamment de distinguer Ie viol ou la torture. Outre les conditions generales d'application respectives des articles 2, 3 et 5, les traitements inhumains (art. 2), traitements crucis (art. 3) ou autres actes inhumains (art. 5) ont ainsi pour definition les elements suivants : actes ou omissions intentionnels, contraires au principe fondamental de traitement humain, causant de graves souffrances mentales ou physiques ou constituant une atteinte grave a la dignite humaine." Ces infractions sont concues comme des infractions residuelles a l'interieur de chacun des articles 2, 3 ou 5, infractions dont Ie plus petit commun denominateur est I'atteinte a la dignite humaine." Cette interpretation revelo, de nouveau, un esprit favorable a la protection des droits fondamentaux . Les mauvais traiternent s, en tant que refus de traiter un autre etre humain comme un semblable, paraissent en effet susceptibles de qualifier tout acte de ce type commis dans Ie contexte du conflit arme yougoslave pourvu qu' en theorie il presente au moins Ie degre de gravite exige a I'article premier du Statut. En pratique, Ie seuil d'incrimination dependra de la definition retenue pour I'atteinte a la dignite humaine.

11

12

13

Voir Le Procureur c/ Zoran Kupreskic et ai., IT-95- 16-T, Jugement , 14 janvier 2000, par. 697 (ci-apres "Jugement Kupreskic"). Definitions identiques : Le Procureur c/ Dusko Tadic , IT-94-I-T, Jugement, 7 mai 1997, (ciapres "Juge ment Tadic I") p. 286 et s.: Le Procureur c/ Delalic et al, IT-96-21-T, Jugcment, 16 novembrc 1998, par. 551 (ci-apres Jugemcnt Celebici); Le Procureur c/ Goran Jelisic, IT95-IO-T, Jugement, 14 decernbre 1999 , par. 41 et par. 50 ; Jugemcnt Blaskic, precit, Voir infra.

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3. Interpretation du concept de digni te humaine

a. Definition de la dignite humaine L'expression dignite humaine!' apparait dans de nombreux instruments internationaux eontraignants ou non, mais I' on n'en trou ve nulle part de definition positive, meme dan s Ie droit international humanitaire." Selon la doctrine, la dignite est la valeur eminente qui s' attache atoute personne physique du seul fait de son appartenance a l'espece humaine. Le respect de la dignite (humaine) est alors la con sideration a laquelle a droit la personne en raison de sa primaute sur les animaux et les cho ses." La jurisprudence du TPIY apporte une contribution 11 sa definition. Elle fait ressortir l'exigence attach ee au respect de ce principe car, selon elle , l'homme doit etre bien traite , comm e une fin en soi. Elle propose une definition de l' atteinte a la dignite humaine extremement large. En effet, s'il s' agit bien d'un acte motive par Ie mepris de la dignite d'une autre personne, la preuve de ce motif n' est pas exigee.!", De merne, s' il s' agit assurement d'un acte intentionnel, l' intention spec ifique d'infliger une hum iliation n' est pas requise." L'atteinte a la dignit e humaine est done un acte intentionnel gravement humiliant ou degradant pour la victim e, qui occasionne une souffranee reelle et dur able decoulant de l'humiliation ou du ridicule. '?

14 15

16

17

18 19

•• •

ou de dignite de la personne hum aine, express ion synonyme.

Le concept est defini negativernent en considerant quelques-unes des atteintes prohibees a la dignite de la personne decoul ant de vio lences corpore lles, d'humiliations ou de co ups porte s a I'h onneur, au respect de soi ou au bien ctre ment al (Le Procureur c/ Anto Furundiija , IT95- 17-/1 -T, Jugcment, 10 decernbre 1998, (ci-apres "Juge ment Purundzija ") par. 183). Voir Scha chter 0 ., "Human Dignity as a Normative Concept", 77 Al IL 848 (1983) ou encore Conde Victor H., A Handbook of International Human Rights Terminology, University of Nebra ska Press, Lincoln & Lond on, 1999 , p. 57 . Voir aussi la definition propo see in Cornu Gerard , Vocabulaire j uridique, Paris, PUF, 1996, p. 277 . JugementAlcksovski, precit., par. 56; Le Procureur c/ ZlatkoA leksovski, IT-95-141I-A, Arret, 24 mars 2000 (ci-apres "Arret Aleksovski"). Arret Alcksovs ki, precit., par. 23 .

A l' app reciarion relative, subjec tive par rapp ort a la victimc, il faut ajo uter un element d' appreciation objectif, c'est-a-dire que l'humiliation doit etre suffisamment intense pour que toute personne sensee en soit outragee ,

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b. Utilisation du principe de respect de La dignite humaine Le TPIY offre une interpretation teleolog ique du droit applicable selon son Statut, fondee sur l'idee que les valeurs dont Ie Tribunal sanctionne la violation renvoient au respect de la dignite humaine, lequel ne saurait etre tributaire des circonstances de fait et de temps . Selon lajurisprudence du Tribunal , "le principe general du respect de la dignite humaine est a la base du droit international humanitaire et des droits de l'homme et en est, en fait, la raison d'etre: i! est desormais si important qu'Il impregne Ie droit international dans son ensemble't.v Le respect de la dignite humaine entre dans la definition du principe de traitement humain (principe general a la base des Conventions de Geneve)" tout comme dans celie des diverses infractions de mauvais traitements .F II a ainsi ete juge que pouvait etre transpose Ie modele d' analyse propose par la Commission et la Cour europeennes des Droits de l'homme, lesqueIles definissent un seuil de gravite minimum pour declencher I' application de l' article 3 de la Convention europeenne des droits de l'homme (ci-apres CEDH) , puis a linterieur de cet article , divers paliers de gravite des infractions." Ce type de raisonnement aboutit , en principe, aune protect ion accrue des droits fondamentaux . Cependant, il est permis de se demander si Ie TPIY, par cette interpretation du concept de dignite humaine, n'outrepasse pas la tache que lui a confiee Ie Conseil de securite, car il n' est pas un organe charge de mettre en oeuvre les droits de l'homme en general mais de sanctionner les violations les plus graves, et celles-la seulement, du droit humanitaire. De plus , Ie raisonnement teleologique

20

21

22

Jugement Furundzija, par. 183. La Chambre a ajoute I'humiliation 11 la liste des buts eventuels de la torture , se justifiant par I' esprit general du droit international qui a pour principal objecti f de preserver la dignite humaine (voir aussi Jugement Aleksovski, prccit ., par. 54) . La finalite de I'article 3.1 (c) commun aux Conventions de Gcneve est de proteger la dignite humaine. Le traitement humain n'y est pas defini mais sont proscrites les forme s particulierement odieuse s de mauvais traitements, manifestement incompatibles avec un traitement humain parmi lesquelles se trouve I'atteinte 11 la dign ite des personnes, notamrnent les traitements humiliants et degr adants (Jugement Aleksovski, p. 18). Le TPIY a juge qu 'en I'absence d'elements suffisants pour etablir la qualifi cation d'acte causant intentionnellement de grave s souffrances 11 autrui .I ' atteinte grave 11 la dignite humaine suffit a car acteriser Ie traitement inhumain ou Ie traitement cruel, in Jugement Celebici , pp. 351-359 et p. 364. De plus, I'atteinte 11 la dignire des personnes, prevue a I'article 3.1 a commun aux Conventions de Geneve, ne parait pas autonome par rapport aux traitements cruels de I'art. 3.1 c (auquel renvoic I'article 3 du Statut) : Jugement Celebici , pp. 161 et s. et par. 552 et S.; Jugemcnt Alcksov ski, par. 5 1.

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developpe par Ie TPIY heurte quelque peu Ie principe de legalite, principe general du droit penal auquel Ie Tribunal est cense se conformer. Le Pres ident Cassese n' avait-il pas justement reaffirme que "[a] policy-oriented approach in the area of crim inal law runs contrary to the fundamental customary principle nullum crimen sine lege" ?24

B. L'articulation du droit pratique par Ie tribunal avec Ie droit international des droits de I'homme La pratique du TPIY impose de revisiter l'articulation entre les droits de l'homme et Ie droit humanitaire. Entre ces deux branches du droit international ou a cote d'elles, elle assoit l'existence du droit international penaL25 La theorie clas sique des droit s de l'homme ne sort pas inalteree des interactions qui en resultent , L' accent est mis moins sur I'Btat que sur l'individu et, au-dela, sur la personne.

I. De La responsabilite de I'Etat aLa responsabilite individuelle a. La sanction du comportement criminel comme apport II La protection des droits fondamentaux La faiblesse du systeme international de protection des droits de l'homme vient de ce que les Etats, qui sont a l'origine d'un tres grand nombre de leurs violations, sont aus si en charge de leur protection. C' est un paradoxe que la justice criminelle

23

24

Arret Tyrer, 25 avril 1978, A no. 26, par. 29 et s. et arret lrlande cl Royaurne-Uni, 18 janvier 1978, A no. 25, par. 167.

Le Procureur c/ Dra zen Erdemovic, IT-96-22, Arret, 7 octobre 1997, Separate and Dissenting Opinion of Judge Cassese, par. II . Voir dans Ie meme sens B. Simma & A.L. Paulus, "The Respons ibility of Indiv iduals f or Human Rights Abuse s in International Conflicts: A Positivist View", 93 A.J.I.L. 303 (1999) ; et sur Ie concept de "policy-oriented jurisprudence" voir Wiessner Siegfried & Willard Andrew R., "Poli cy-Oriented Jurisprudence & Hum an Rights Abu ses in IC - Towards a World Public Order ofHum an Dignity", 93 A.J.I.L. 317 et s. (1999) , note 1 pour une bibliographie.

25

Ratner Steven R. & Abrams Jason S., Accountability f or Human Rights Atrocities in International Law. Beyond the Nuremberg Legacy , Oxford , Clarendon Press, 1997, Introduction p. xxxiii et pp. 165-173 .

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intemationale permet de depasser partiellement." En effet , l'action de la victime doit pouvoir se toumer contre I'Etat lorsque I'Etat est a I'origine de la violation de ses droits. Or, justement, les procedures internationales ordinaires de sanction des atteintes aux droits de l'homme sont etroitement dependantes du bon vouloir des Etats meme s'il arrive que la saisine des organes charges de les mettre en ceuvre soit ouverte aux particuliers.F A cette faiblesse structurelle du systeme de protection des droits de l'homme vient s'associer un manque chronique de developpement des rnecanismes destines a assurer Ie respect du droit hurnanitaire" pour affaiblir la protection des droits fondamentaux. La creation et la pratique du TPIY peuvent done etre envisagees dans la perspective d'une recherche de mecanismes de sanction plus efficaces pour les droits fondamentaux, que les modalites traditionnelles d' engagement de la responsabilite des Etats .

26

21

28

A l'occasion de la Conference mondiale sur les droits de l'homme de 1993, Boutros Boutros Ghali , alors Secretaire general de l'ONU, declarait dans son discours inaugural : "La question de l'action internationale doit se poser lorsque les Btats contreviennent aux principes fondamentaux de la Charte des NU et lorsque , loin d'etre des protecteurs de la personne humaine ils en deviennent les bourreaux . Dans de telles circon stances c'est 11 la communaute intemationale de prendre Ie relais des Etats defaillants . . .". Voir, par exemple, la procedure devant Ie Cornite des droits de l'homrne de l'ONU: charge de contr61er I'application du Pacte internat ional relatif aux droits civils et politiques (ci-apres PIRDCP), son travail est base sur les rapports des Btats; un Protocole facultatif ouvre aux individus Ie droit de lui adresser des communications. Voir encore la procedure devant la Cour inter-americaine des droits de I'homme: chargee d'assurer Ie respect du Pacte de San Jose, elle n' est pas directement accessible aux particuliers; seule la Commission peut recevoir des petitions contenant des plaintes de particuliers. Voir egalernent , la procedure devant la Cour europeenne des droits de l'homme qui, depuis I' entree en vigueur du Protocole no. II, est directement ouverte 11 I'action des particuliers. Les Conventions de Geneve et leur Protocole additionnel I en leurs articles premiers respectifs disposent: "Les Hautes Parties Contractantes s' engagent 11 respecter et 11 faire respecter la presente Convention [Ie present Protocole1en toutes circonstances" et nombre d' autres articles viennent preciser les obligations faites aux Etats dans ce cadre . La repression penale visant les individus , en particulier les auteurs d'infractions grave s 11 ces Conventions, est basee sur Ie principe d'universalite avec les difficultes que cela comporte (art. 49 et s. de la Convention I, analogue dans les autres Conventions, art. 85 et s. du Protocole I) et une Commission intemationale d'etablissement des faits est instituee mais elle n'a pour I'instanrjamais ete saisie (Protocole I, art. 90).

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Certes la creation du TPIY en 1993, avant la fin du con flit yougoslave, a semble dispenser la communaute internationale de tout autre type d'intervention, avec un effet immediat peu convainquant sur le plan de la protection des droits de l'homme. Cependant, par le developpement ulterieur de sa pratique, le Tribunal rend finalement effective "l' application au domaine des droits de l' homme de l' un des principes les plus fondamentaux - la punition du comportement criminel - [qui] devrait mettre fin a limpunite de ceux qui se gaussent des lois proclamecs inviolables"." L' apport majeur de la pratique du TPIY a la protection des droits fondamentaux de la personne humaine tient done ace qu'il fasse reculer la culture de l'impunite, en particulier lorsqu'il parvient a mettre enjeu la responsabilite des personnes en position d'autorite (militaire, administrative ou meme moralej .v"

b. Une criminalite publique resultant en une responsabilite individuelle La pratique du TPIY montre que I'approche du droit international des droits de l'homme dans son ensemble ne devrait plus s'operer a travers le prisme de la souverainete etatique pour qu'une effcctivite veritable leur soit conferee." En effer, scion Ie Jugement de Nuremberg ce sont bien des hommes et non les Etats qui

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Seme Rapport annuel du TPIY, par. 282. Sur cette question controversee voir egalement Wiessner Siegfried & Willard Andrew R., eod. loc., pp. 316-317. Seme Rapport annuel, par. 222 : Ie Tribunal "est maintenant une composante incontestable du processus de paix, processus qui tente de remplacer par une culture du droit, une culture de la force impo see par la violence" ; voir aussi Ie 6eme Rapport annuel, par. 206-208. Voir les rapports de plus en plus nombreux de la Commission des droits de l'homme des Nations Unies sur la question de l'impunite. En ce sens aussi Scharf M.P., p. 398 : " The evidence strongly suggests that the failure of the international community to prosecute Pol Pot. Idi Amin. Saddam Hussein. and Mohammed Aidid, among others. encouraged the Serbs to launch their policy of ethnic cleansing in the former Yugoslavia with the expectation that they would not be held accountable for their international crimes" . Ou encore Bassiouni Cherif M., "Strengthening the Norms of International Humanitarian Law to Combat Impunity" , in The Future of Internat ional Human Rights , p. 248 . L' absence de pouvoir de coercition a I'encontre des Etats , qui caracterise la justice intemationale ad hoc rend cependant cette mise en cause difficile. En I' affaire Blaskic, la Chambre d'appel a dcnie au Tribunalla possibilite d'adresser des injonctions de produire des documents (subpoena duces tecum) aun Etat ou au representant d'un Etat en tant que tel, estimant que de telles injonctions sous peine de sanctions ne pouvaient etre adressees qu' ades personnes privees (Le Procureur c/ Tihomir Blaskic, IT-95-14-A , Decision sur l'injonction a produire des documents, 29 octobre 1997,). Op. diss. Juge Rodrigues, Jugement Aleksovski, precit .

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commettent en realite les crimes du droit international; de plus, il n'existe pas de responsabilite penale de ces entites abstraites que sont les Etats . L'ecran constitue par la souverainete etatique, qui s'interpose c1assiquement entre n'importe quelle branche du droit international et I'individu, doit donc disparaitre afin que soit mise en jeu la responsabilite individuelle des auteurs veritables d'infractions internationales. Neanmoins, I' action agrande echelle que suppose, par exemple, la qualification de crimes contre l'humanite, oblige a constater une coordination entre les acteurs du crime." Un tel contexte est revelateur du caractere "public" de cette criminalite, presque inevitablement Iiee a la mise en oeuvre de moyens etatique: des moyens materiels (infrastructures de communication), com me des moyens humains (ressources des chaines de commandement civiles et militaires) . Sont ainsi impliques des agents, de droit ou de fait, d'un Etat - ou rneme d'une entire etatique. Leurs actes, tres marques par I' empreinte de la puissance etatique ou publique, leur sont pourtant attribuables individuellement." II semble done bien que la nature privee ou publique des actes ne doive pas etre determinante, mais Ie TPIY hesite encore a faire sienne cette conclusion." Pourtant sa jurisprudence y gagnerait en coherence et la protection des droits fondamentaux n'en serait que plus effective. Finalement, seule la gravite intrinseque des actes devrait importer; mais alors reparait la question de l'appreciation de cette gravite . 2. De l'individu it La personne: limites de La theorie classique des droits de l'homme a. Une normativite bousculee

L'analyse de la pratique du TPIY conduit a s'interroger sur fa valeur des droits fondamentaux , parmi les normes du droit international des droits de I'homme. Ce sont par definition des droits "inderogeables" dont la violation revet, de ce fait, un caractere de gravite particulier. Or, Ie critere de gravite des actes ou des

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L' element essentiel qui caracterise les crimes contre l'hurnanite est I' attaque massive et systematique, meme si la planification n'est pas exigee . Le crime de torture est 11 cet egard tres revelateur egalement: la mise en evidence d'un lien entre I'acte criminel etla qualite officielle de celui qui le commet est exigee. En ce sens : Regina v. Bartle and the Commissioner of Policefor the Metropolis and others ex parte Pinochet, House of Lords, 24 March 1999, Opinions of the Lords of Appeal.

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violations en cause est aussi a la base de lajurisprudence du Tribunal" et la notion de gravite souffre de la collu sion entre droits de I'homme et droit humanitaire. Deux risques en resultent: un manque de coherence de la juri sprudence du TPIY et une banalisation des crime s internationaux. En effet la jurisprudence du TPIY fait intervenir, au-del a du critere de gravite initial des actes punissables exige a I'article premier du Statut , d'autres seuils de gravite afin de distinguer entre les infractions. Si la Chambre d'appel refuse une hierarchic entre les article s 2,3,4 ou 5 du Statut.' ? I'analyse de la juri sprudence montre que Ie critere de gravite sert a distinguer entre les differentes infractions dites sous-jacentes, sur Ie modele du systeme europeen des droits de l'homme." La collusion entre les branches du droit international ne joue a long terme ni en faveur de la justice internationale, ni en faveur des droits fondamentaux. Faut-i1 sacrifier pour autant la protection des droits fondamentaux ala specificite du droit international penal? Assurement non, mais une application circon specte du critere de gravite s'impose afin de lui conserver toute sa pertinence. D'autre part, la pratique du TPIY invite a s'interroger sur I'appartenance des droits fondamentaux substantiels vises, au groupe discute des normes de jus cogens/" En 1970, dans l' affaire de la Barcelona Traction, la CIJ avait confere valeur imperative aux norme s protegeant les droits fondamentaux de la personne humaine."

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L'article premier du Statut du TPIY limite sa competence aux violations graves du droit international humanita ire, ce qui Ie differencie en principe d'un organe "o rdinaire" de mise en reuvre des droits de l'h ornme. Bien que certains juges s' y soient rnontres favorables. Le Procureur c/ Dusko Tadic , IT-94-1, Op. diss. luge Cassese, p. 63: " Ie meurtre qualifie de crime contre l'hurnanite atteint une dimension objectivem ent superieure et revele chez son auteur un etat d' esprit subjectif qui peut mettre plus gravement en danger les valeurs fondamentale s de la cornmunaute internationale que dans Ie cas ou Ie crime serait categorise comme crime de guerre [... ] chaque fois que I'infraction commise par un accuse est reputee etre un crime contre l'humanite, elle doit etre consideree comme intrinsequement plus grave" . On pense par exernple a la tentative menee pour etablir differ ent s degre s de mauvai s traitements, mentionnee supra. Une norrne dejus cogens est definie par I'article 53 de la Convention de Vienne sur Ie droit des traites eomme "norrne acceptee et reconnue comme telle par la comrnunaute des Btats dans son ensemble". Cet article comporte une liste non limitative d'ex ernples, CIJ, arret du 5 fevrier 1970, Affaire de la Barcelona Traction, Light and Power Company Limited, Rec. 1970, p. 3; voir aussi Conference pour la paix en Yougoslavie : Commission d'arbitrage, Avis no. I, 29 novembre 1991.

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Faut-il done considerer, lorsque le TPIY fait reference a un droit fondamcntal, que l'on est en presence d'une norme imperative? Lorsque c'est Ie cas, le Tribunal en fait mention expresse : l' interdiction de la torture, par exemple, a recu cette qualification." La valeur de norme imperative deja reconnue a certains crimes internationaux sera done confirmee ou infirmee par la pratique du TPIY; rnais, surtout, de nouvelles normes imperatives vont etre consacrees." L' absence de criteres precis pour la determination des norme s dejus cogens et les debars que suscite la categoric meme pourront conduire a des divergences d'appreciation entre les differents organes juridictionnels internationaux. Ne vaudrait-il pas rnieux, afin d'affermir l'apport du TPIY aux droits fondamentaux, soit abandonner la qualification de norme imperative soit, plutot , la systernatiser?

b. Des "human rights" aux "human wrongs" Le droit international des droits de l'homme et Ie droit des conflits armes, puis Ie droit humanitaire, se sont trouves dissocies pour des raisons historiques ou politiques mais aussi juridiques. II existe pourtant entre ces branches des rapports d' exclusion ou de complementarite explo ites par la jurisprudence du TPIY. Ces rapports ont ete precises par l'article 75 par. 8 du Protocole additionnel I aux Conventions de Geneve, lequel offre une protection minimale a toute personne affectee par un conflit, sans qu'elle doive se prevaloir d'un statut particulier. Le Tribunal batit sa juri sprudence sur ce principe et semble considerer que la coexistence entre les branches est clairement imposee par les dispositions des droits de l'homme qui ne souffrent aucune derogation." Cela signifie que Ie TPIY assure Ie lien entre les droits fondamentaux de la personne humaine et les devoirs correlatifs qui consistent a en assumer Ie respect. II en resulte une extension du domaine des

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Jugement Furundzija, precit , Les cas du genocide, des crimes contre l'humanite ou de la torture sont c1airs. Quant aux crimes de guerre, il y a un desaccord persistant sur ceux d' entre eux qui peuvent recevoir la qualification de norrne imperative. L'opinion generalement recue s'accorde sur l'cxistence d'un noyau dur, voir David Eric, Principes de droit des conflits armes, Bruxelles, Bruylant, 1994, pp. 84 et s. Reference II la declaration du CICR en ce sens, Rapport de la reunion d 'experts, d'octobre 1998 (cite in Jugement du TPI pour Ie Rwanda, Le Procureur c/ Kayishema, 21 mai 1999, par. 622) .

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droits de l'homme, "human rights", a ce que l'on peut denommer les "human wrongs".44 La theorie des droits de l'homme se voit ainsi contrainte d'integrer une facette nouvelle de l'individu. En effet, emerge de la sorte dans Ie droit international des droits de l'homme l'idee que les droits individuels sont doubles de devoirs dont I'ignorance est sanctionnee. La conception de l'etre humain offerte par la theorie classique des droits de l'homme en est enrichie: d'une apprehension purement individuelle de l' etre humain, elle glisse aune apprehension plus personnelle. En d'autres termes, I'individu n'est plus seul pris en compte mais la personne sous ses differents aspects fait son entree dans Ie droit international des droits de l'homme. En realite, l'apport de lajurisprudence du TPIY centre sur les "human wrongs" n'est pas isole . II s'inscrit dans une evolution plus generale de la doctrine des droits de l'homme.

3. De fa responsabilite individuelle a fa responsabilite personnelle Un certain nombre de phenomenes convergent pour que , dans Ie droit international,

a I'individu, dont la place etait du reste bien modeste, soit substituee la personne. La doctrine classique des droits de l'homrne est fondee sur l'idee que chaque individu est considere comme irreductible a un autre et qu'il doit etre protege par ce droit face a I'Etat. Selon cette vision la personne humaine est reductible, identifiable al'individu, ce qui implique une separation entre l'individu et la societe, ou encore un isolement de l'individu par rapport a la societe." Or, la definition des droits collectifs marque une evolution des droits de l'homme vers une apprehension plus sociale et plus globale de l' etre humain. Si les droits de l'homme derivent de la dignite inherente 11 la personne humaine, les droits de I'homme collectifs ne sont logiquement possibles que si I'on considere I'appartenance sociale comme une part de la personne/alite humaine. Done la dignite humaine, notion centrale du droit international des droits de l'homme et du droit international humanitaire selon la jurisprudence du TPIY, ne saurait se definir uniquement et necessairement comme une revendication de l'etre humain face a la societe. Elle serait plutot une qualite conferee 11 la personne - en vertu de

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Falk Richard A., "A Half Century of Human Rights : Geopolitics and Values", in The Future of International Human Rights , p. 23, par. 6.

Le debat sur l'universalite des droits de l'homme trouve Iii d'ailleurs un argument de poids , car dans beaucoup de cultures la personne ne saurait se desolidariser de la societe.

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son humanite - par la communaute dont cette personne accepte les regles et les valeurs ." II ne s'agit pas de nier la qualite intrinseque de I'etre humain, qui, considere en tant qu'individu (notion abstraite), est l'egal de ses semblables, ni de revenir sur les droits qui lui appartiennent de ce fait. Mais, d' autres aspects de "I'humanite" ce qui fait l'humain ou l'inhumain d'ailleurs - sont pris en compte par Ie droit international penal. L'individu devient une personne situee a differents niveaux, dans differents cadres sociaux et juridiques, dans sa communaute etatique et surtout dans la communaute internationale." Certains droits de l'homme qui s'exercent collectivement ou dans Ie contexte social de I'individu, comme le droit au developpement," visent en fait la personne, c'est-a-dire l'individu situe. De la meme facon, en sanctionnant les crimes du droit international, la pratique du TPIY prend a son compte une fonction sociale de protection de la communaute internationale et reconnait aux auteurs des crimes leur " potentiel social" de mise en danger de cette communaute. Par opposition acet enrichissement des droits fondamentaux substantiels, teinte de critiques du systeme existant, l'apport de la pratique du TPIY aux droits fondamentaux formels s'inscrit dans une demarche nettement plus "classique", La encore , pourtant, les exigences du proces penal international ne demeurent pas sans influence sur la mise en oeuvre des droits, sans alIer en principe jusqu'a leur remise en cause .

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Rhoda Howard, "Dignity, Community and Human Rights", in Human Rights in Cross-Cultural Perspectives, Abdullahi An-Na'irn (ed.), 1992, p. 81: "Thus in most known past or present societies, human dignity is not private , individual, or autonomous. It is public , collective, and prescribed by social norms ...". Pour une comparaison des deux notions voir egalement: Pannikar, "Is the Notion ofHuman Rights a Western Concept?" , 120 Diogenes 75 (1982) . 11 offre une definition tres large de 1a personne qui comprend aussi l'environnement humain de l'individu, ses sentiments et sensations ou merne ses biens . II s'agit d'un droit collectif a la valeur encore discutee: selon certains il n'implique pas de droit individuel au developpernent c' est-a-dire qu' en dehors merne de son acception purement economique la societe en reste seule titulaire, parce que Ie developpement de l'etre humain ne peut se realiser que dans un environnement social.

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II. APPORTS DU TPIY A LA PROTECTION DES DROITS FONDAMENTAUX FORMELS

Sous l' angle de la procedure, il est en effet indeniable que la pratique du Tribunal international pour l' ex-Yougoslavie offre des apports importants a la protection des droits des accuses et a la protection de ceux des victimes . A partir des dispositions de son Statut, le Tribunal elabore, de facon constante et toujours plus precise , les regles destinees a assurer aux accuses un proces rapide et equitable, en tenant compte des exigences et des specificites d'une justice proprement internationale." Quant aux victimes des crimes commis sur le territoire de l' ex-Yougoslavie, le Statut du TPIY ne leur confere qu' une place assez modeste dans le deroulement du proces. Neanmo ins, par une jurisprudence dynamique Ie TPIY tente de faire que leur droit a la justice ne soit pas un vain mot.

A. Les droits des accuses face it la justice intemationale Comme l'a rappele la Chambre d'appel dans I'affaire Tadic, I'article 21 du Statut, relatif aux droits de l' accuse, reproduit presque mot pour mot I' article 14 du PIRDCP ou encore I'article 6 de la CEDH .50 II est des lors peu surprenant que la jurisprudence du Tribunal se soit inspiree de la pratique du Comite des droits de I'homme des NU ou de la Cour europeenne des Droits de I'homme lorsqu 'elle a interprete les dispositions de I'article 21. Mais des developpements particuliers, lies a la specificite du proces penal international, touchent a la fois la question de la legalite de la detention, la rapidite du proces et le caractere equitable de la procedure.

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Voir, par exemple, sur ce point Ellis Mark S., "Comments. Achieving Justice before the International War Crime s Tribunal : Challenges for the Defense Counsel", 7 Duke J. of Camp. & Int 'l L. 519; ou encore La Rosa Anne Marie , eod. loc., pp. 945-985 . Ou encore I'article 7 de la Charte africaine des droits de I'homme et des peuples . Voir Ie Rapport du Secretaire general de I'ONU qui indique, en faisant reference au PIRDCP, que Ie TPIY doit respecter les standards intemationaux en matiere de droits des accuses a tout moment de la procedure. Voir egalement: Appel Tadic I , precit., par. 46.

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J. La legalite de La detention 51

Les principes enonces dans les instruments internationaux reconnaissent a quiconque se trouve detenu "le droit d'introduire un recours devant un tribunal afin que celui-ci statue sans delai sur la legalite de sa detention et ordonne sa liberation si la detention est illegale't.? Le Statut et Ie Reglement du TPIY comportent ce droit, ce qui selon la Chambre d'appel du Tribunal pour Ie Rwanda , const itue la question fondamentale soulevee par une ordonnance d' habeas corpus." Dans l' affaire Brdanin, la Chambre de premiere instance II du TPIY, a repris cette conception tout en precisant que pourtant Ie Tribunal n' a pas autorite pour rendre une ordonnance regalienne d' habeas corpus.54 Mais, il dispose bien de l' autorite et de la procedure lui permettant de trancher la question de la legalite de la detention : cette demande doit etre introduite par voie d' exception prejudicielle en application de I'article 72 du RPP, si elle releve de I'exception d'incompetence ou, si ca n' est pas Ie cas, en application de l' article 73 (consacre aux autres types de requetes, ce qui ffit Ie cas en I'espece)."

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L' expression de detention provisoire s'applique aux suspect s (art. 40 bis du Statut) et celie de detention preventive aux accuses (article 64 du Statut) .

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PIRDCP, article 9.4, CEDH , article 5.4, Pacte de San Jose, article 7.6.

53

Le Procureur c/ Jean-Bosco Barayagwiza, TPIR-97 -19-AR72 , Decision, 3 novembre 1999.

La Chambre d'appel fait reference 11 la definition d'une ordonnance d'habeas corpus donne par la Cour inter-americaine des droits de l'homme (Avis consultatif DC-8/87, 30 janvier 1987, Ser, A, No.8 (1987) , par. 33. Voir Schabas William A., "International Criminal Tribunal for Rwanda (Case No : ICTR-97 -19-AR72) , Decisions of November 3, 1999 and March 31, 2000, Jean-Bosco Barayagwiza v. The Prosecutor", article 11 paraitre in AJlL. L'auteur est tres critiqu e sur la coherence de la jurisprudence du Tribunal, de la Chambre d'appel en particulier. 54

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Le Procureur c/ Radoslav Brdanin, IT-99-36-PT, Decision relative 11 la demand e aux fins d'une ordonnance d'habeas corpus au nom de R. Brdanin, 8 decernbre 1999, par. 4 et 5. Le caractere illegal de la detention peut resulter par exemple du defaut d'information de I' accuse dans les plus courts delais quant aux charges retenues contre lui. Decision Brdanin , precit ., par. 12 sq : en I'espece l' accuse soutenait que le Procureur avait modi fie l'acte d'accusation sans l'en tenir informe, ce qui flit qualifie par la Chambre de pure imagination (le Procureur n'ayant fait qu'une decl aration d'intention en la matiere) . Une requete de I' Accusation aux fins de modifier I'acte d'ac cusation en y ajoutant de nouveaux chefs ne signifie aucunement que l'accuse a ete prive de son droit 11 etre informe dans les plus courts delais des charges retenues contrc lui, pas plus qu 'clle ne concede l'insuffisance des pieces justificatives foumies au ju ge de confirmation , ce que d'ailleurs Ie Tribunal ne contr61e pas

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La detention preventive representait la regle generale pour Ie TPIY, alors que les legislations nationales et les instruments internationaux lui conferent en principe un caractere exceptionnel en accord avec la presornption d'innocence, jusqu'a ce qu' en novembre 1999 l' article 65 du RPP soit modifie." Celui-ci restreignait, en effet, la mise en liberte provisoire ades circonstances exceptionnelles et, en diverses occasions, les Chambres avaient insiste sur Ie fait que "la gravite des crimes poursuivis devant Ie Tribunal ne laisse pas de place pour une autre interpretation, futelle tiree des principes generaux du droit gouvernant les dispositions applicables en la matiere dans les droits internes et par hypothese non transposables en droit international penal"." Outre la gravite des crimes , les conditions dans lesquelles Ie Tribunal opere, par nature exceptionnelles, paraissaient toujours justifier une conception stricte de la detention preventive . La pratique du TPIY s'inspirait de celie de la Commission et de la Cour europeennes des Droits de l'homme, qui estiment que la detention sur la seule base de raisons plausibles de soupconner est licite au regard de la CEDR. 58 Mais, l'application dans Ie contexte du TPIY des criteres elabores par les organes du Conseil de I'Europe rendait difficile I'admission de toute requete aux fins de liberte provisoire puisque les circonstances exceptionnelles qui justifient la detention preventive au regard de la CEDR, telle la gravite du crime ou les difficultes de

lorsqu'i! doit se prononcer sur la legalite d'une detention (Le Procureur c/ Momir Talic, IT99-36-PT, Decision relative 11 la requete aux fins de mise en liberte , 10 decembre 1999). 56

57 58

La mise en liberte provisoire ne pouvait etre ordonnee par une Chambre que dans des circonstances exceptionnelles et pour autant qu'elle ait la certitude que l'accuse comparaitra et qu'il ne mettra pas en danger une victime, un temoin ou toute autre personne (ancien article 65 RPP). Voir aussi PIRDCP, article 9.3. Voir Le Procureur c/Tihomir Blaskic, IT-9514-T, Ordonnance portant rejet d'une demande de mise en liberte provisoire 20 decembre 1996; ou encore Le Procureur c/ Dokman ovic, IT-95-13a , Decision sur la liberte provisoire , 22 octobre 1997; Le Procureur c/ Djukic, Decisions sur la liberte provisoire. Par exemple, Decision Blaskic , 20 decembre 1996, precit ., sur la liberte provisoire. Voir par exemple : Stoegmuller cl Autriche (1969) Cour EDH, Ser, A, no. 9, pp. 39-40 au De long, Baljet et Van den Brink (1984), 10 Com. EDH, DR, p. 34 et au De long, Baljet et Van den Brink (1984) , Cour EDH, Ser, A, no. 77, pp. 21-22 . La Cour a ainsi conclu , pour ce qui concerne les soupcons plausibles justifiant la detention preventive, que leur existence presuppose celie de faits ou d'inforrnations propres 11 persuader un observateur objectif que I'individu en cause peut avoir commis I'infraction et que la plausibilite depend des circonstances de l'espece (Fox, Campbell et Hartley cl Royaume-Uni (1990), Cour EDH, Ser, A, no. 182, p. 16).

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I' instruction, est I' environnement normal dans lequelle Tribunal doit operer, Enfin, la jurisprudence du Tribunal renvoyait au test developpe pour la confirmation de I'acte d'accusation, ce qui signifie paradoxalement que si la requete aux fins de mise en liberte etait accueillie, il etait aussi possible de soutenir que I'acte d'accusation ne correspondait pas aux exigences du Statut et du Reglement.I? La suppression de la condition des circonstances exceptionnelles de I' article 65 du RPP, qui a d'ailleurs irnmediatement beneficiee a trois accuses, a ainsi permis de rendre sa coherence a la jurisprudence du Tribunal tout en renforcant la protection des droits fondamentaux des detenus, Pour ce qui est de la duree de la detention preventive, la pratique du TPIY considere que la detention ne doit pas aller au-dela d'un delai raisonnable. Elle applique, la encore, les criteres elabores par les organes du Conseil de I'Europe afin de verifier si la duree de la detention de l'accuse constitue une circonstance suffisante pour justifier son elargissement.w Elle prend, de plus, en compte Ie role de l'accuse dans les crimes presumes."

2. La rapidite du proces En cette matiere, I' apport du Tribunal peut se mesurer a travers deux elements revelateurs de sa jurisprudence: d' une part, la notion de retard excess if pour laquelle Ie TPIY a construit sa propre definition a partir de la pratique de la Cour EDH, tout en I'adaptant aux exigences de lajustice intemationale; et, d' autre part, la possibilite de verser au dossier des faits deja etablis."

59 60

61

62

La Rosa Anne Marie, eod. loc., p. 962 sur ces deux points . Voir, Le Procureur c/ MuCic et autres, IT-96-21-T, Decision relative 11 la requete de l'accuse Delalic aux fins de mise en liberte provisoire ; voir Decision Blaskic, precit., sur la liberte provisoire, dans laquelle la Chambre a estirne que les juges devaient se porter garants du respect du droit de l' accuse d' etre juge sans retard excessif. Les criteres etablis par la Commission EDH sont: la duree effective de la detention , la duree de la detention par rapport 11 la nature du crime, la prise en compte de la detention preventive par la legislation nationale dans Ie prononce de la sentence, les effets de la detention sur Ie detenu excedant les effets normaux , les difficultes de la procedure, la facon dont l' enquete a ete menee, la conduite des autorites judiciaires. Decision Mucic, precit, sur la liberte provisoire . D' autres solutions sont proposees encore face 11 la longueur des proces, que nous n'envisagerons pas ici: Ie retrait ou l'allegement de certains actes d'accusation, la reduction du nombre des temoins, la designation d'un pool de juges ad litem, l'elargissement des attributions des Juristes hors c1asse des Chambres, la reduction du nombre des interruptions

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a. La notion de retard excessif La notion de retard excessiftelle qu'elle est definie par la Cour EDH est fondee sur l' article 6.1 de la CEDH selon lequel "Toute personne a droit ace que sa cause soit entendue dans un delai raisonnable". 11 est important de noter que, dans ce contexte, l'Btat est le debiteur de l'obligation de celerite. La Cour a ainsi considere que "le caractere raisonnable de la duree d'une procedure s'apprecie suivant les circonstances de la cause".63 Elle a juge egalement que les criteres devant etre retenu pour definir Ie retard excessif sont ceux de la complexite de I' affaire, de l' attitude de l'accuse, du comportement des autorites competentes." La notion de retard excessif telle qu'elle est concue par la jurisprudence du TPIY est differente, Elle est d'abord tributaire du fait que dans ce cas, l'Btat n'est pas Ie debiteur de l' obligation de celerite mais bien, vraisemblablement, Ie juge lui-memo. Quant aux criteres retenus par Ie Tribunal, tels qu'ils ressortent de plusieurs decisions, en particulier dans les affaires Erdemovic et Blaskic, ils se resument de la facon suivante : la complexite intrinseque de I'affaire, les notions d' aveu ("confession") et de plaidoyer de culpabilite (envisage infra), Ie comportement des autorites competentes (en particulier la difficulte d' obtenir des preuves )65

(requetes preliminaires, appels interlocutoires), un nombre plus important de jonctions d'instances et des formules alternatives au proces normal (Ie juge unique) . Voir Ie Rapport sur Ie fonctionnement du Tribunal presente par SE Ie Juge Claude Jorda, President, au nom des juges du Tribunal, mai 2000. 63

64

Arret X cl France, 31 mars 1992, A No . 234-C, par. 32. Voir Pettiti L.E., Decaux E., Imbert P.H.,op. cit., p. 268 . La cornplexite de la cause releve d'une appreciation globale des donnees de fait ou de droit (Ie nombre des parties, la difficulte d'apporter les preuves, les aspects internationaux de la

situation, I'incertitude de la regie de droit, etc) . Le comportement du requerant fait reference 11 une attitude apparaissant comme abusive ou dilatoire. 65

Le travail du TPIY est tributaire de la cooperation des Etats, ce 11 quoi renvoie Ie comportement des autorites competentes auquel il est fait reference ici; or, celle-ci est assez peu convaincante. Voir les rapports annuels du TPIY, par exemple Ie 6eme Rapport du 25 aoilt 1999, par. 5 et par. 90 11 106. De plus, en son par. 13 iI est precise que : "[Iles affaires dont Ie Tribunal est saisi font intervenir des questions complexes de droit et de fait, ainsi que I' application de principes juridiques qui n' ont pas etes interpretes ou appliques anterieurement. Qui plus est, 11 la difference des proces de Nuremberg ou de Tokyo, Ie Tribunal compte d'avantage sur les depositions des temoins que sur les declarations sous serment et il tient done 11 s' assurer que les droits de I' accuse sont integralernent respectes conformernent aux normes contemporaines des droits de l'homme". Dans Ie Seme Rapport, du 10 aoilt 1998, il est egalement releve que "[Iles proces de personnes accusees de violations graves du droit international humanitaire

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et la "stabilisation de la procedure't.w lis sont done marques par la specificite de la justice internationale, tout comme I' est la possibilite de verser au dossier des faits deja etablis. b. La possibilite de verser au dossier des faits deja etablis II faut noter prealablement a toute autre reflexion une particularite de la justice penale internationale: les regles concernant I' admission des preuves sont explicitement considerees par la jurisprudence du Tribunal comme constituant un systeme intermediaire entre civil law et common law:" L' article 94 du RPP, autorisant Ie constat judiciaire, s' inscrit dans une perspective de rapidite du proces. Compte tenu des methodes de travail du Tribunal, qui consistent a apprehender les affaires region par region, voire camp par camp/" et a remonter les chaines de commandement jusqu'aux autorites suprernes, il est apparu dans la pratique que pour des accuses differents, relevants d'actes d'accusation distincts et done d'affaires distinctes, les faits et les preuves documentaires etaient identiques. Une Chambre de premiere instance peut ainsi decider de dresser Ie constatjudiciaire de faits ou moyens de preuve documentaires admis lors d'autres affaires portees devant IeTribunal et en rapport avec l'instance. Le constat judiciaire renvoi a l'evidence a la notion d'antant de la chose jugee. Une question distincte est celie de l'admission d'elements de preuve venant d'autres procedures. Si elle est possible," elle ne saurait s'apparenter strictement a un constat judiciaire. La

sont necessairement plus complexes que ceux qui portent sur des crimes courants; ils prennent donc necessairernent plus de temps que les proces de droit interne". 66

67

Le Procureur c/Tihomir Blaskic, IT-9514-T, Decision sur 1a duree de la procedure et Ie temps alloue aux parties pour presenter leur s elements de preuve et voir Jugement Blaskic, 17 decembre 1997,3 mars 2000, precit., par. 53 .

Selon les termes memes des juges dans I'affaire Blaski c.

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Par exemple : affaire du Camp d'Omarska, affaire de Prijedor, affaire Celebici, affaire Srebrenica, les affaires de la Vallee de la Lasva (Ie "nettoyage ethnique" dont aurait ete victime la population musulmane bosniaque de la region de la Vallee de la Lasva (en Bosnie-Herzegovine centrale) de mai 1992 IImai 1993 est IIla base de cinq acres d'accusation distincts : A1eksovski , Kordic et al., Blaskic, Kupreskic et al. et Purundzija).

69

Soit d' office, soit II la demande des parties et apres audition des parties. Dans I' affaire Alek sov ski, la Chambre d' appel a confirrne Ie 16 fevrier 1999 une decision de la Chambre de premiere instance admettant en tant que preuve indirecte, en application de I' article 89 C) du RPP Ie proces-verbal d'un temoignage entendu dans Ie cadre d'un autre proces : Le Procureur cl Zlatko Aleksovski, IT-95-141I-AR73, Arret relatif II l'appel inte rjete par Ie Procureur

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jurisprudence sur ce point continue de se developper, Ainsi , dans I'affaire Simic , une Chambre de premiere instance a refuse de dresser Ie constat judiciaire du caractere international du conflit arme en cause dans l' acte d' accusation , considerant que I'article 94 du RPP s'applique aux faits "qui ne sont pas raisonnablement susceptibles d' etre contestes" et non aux consequences juridiques qui en decoulent .?? Une autre Chambre a toutefois considere qu'il etait possible de tirer des conclusions juridiques du constat judiciaire dresse lorsqu' eUes sont les consequences neces saires des faits constates." Dans Ie respect des exigences specifiques 1:1 la j ustice penale internationale la pratique du TPIY parvient done 1:1 se conformer aux standards des droits de l'homme en matiere de rapidite du proces , tout en les enrichissant de son experience particuliere. La meme dynamique se rencontre lorsque l' on analyse la pratique du TPIY concernant Ie caractere equitable de la procedure." 3. Caractere equitable de la procedure

Le caractere equitable de la procedure va etre ici envisage 1:1 travers quatre aspects de la pratique du Tribunal. L'interpretation qu'il donne du principe d'egalite des armes est inspiree de celie de la Cour EDH; mais, 11:1 encore , les juges de La Haye l'ont adapte aux particularites de lajustice internationale. Les questions des modifications de l'acte d'accusation, du plaidoyer de culpabilite ou encore de l'appel montrent aussi de quelle facon Ie TPIY met en oeuvre les droits fondamentaux des accuses.

con cernant la recevabilite des elements de preuve , 16 fevrier 1999. Voir aussi , Le Procureur c/ Daria Kordi c et Mario Cerkez; IT-95-14/2-T, Decision relative ala demande de l' Accusation aux fins de verser au dossier Ie rapport et Ie dossier Tulica , qui s'appuie sur la decision d'appel rendue en I'affaire Aleksov ski, 29 juillet 1999. 70

71 72

Le Procureur c/ Blagoje Simic et al., IT-95-9-PT, Decision relative ala requete de I' Accusation prealable au proces demandant que la Chambre de premiere instance dresse Ie constat judiciaire du caractere international du conflit en Bosnie-Herzegovine, 25 mars 1999. Le Procureur c/ Kvocka et autres, IT-98-30/1- T, 8 juin 2000 . De facon generale les moyens necessaires ala defense, en particulier ceux vises aI' article 21 (4) b du Statut, sur la possibilite pour I' accuse de "disposer du temps etdes facilites necessaires a la preparation de sa defense", doivent etre envisages en fonction des faits particuliers a chaque affaire , scion la decision de la Chambre de premiere instance rendue Ie 3 fevrier 1997 dan s I'affaire Celebici. IT-96-21-T, Deci sion sur la demande d'ajournement du proces, 3 fevrier 1997, par. 19.

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a. L'egalite des armes En premier lieu, Ie principe d'egalite des armes implique, qu'au cours de la procedure, au droit de I' accuse acontre-interroger fasse pendant un droit au contreinterrogatoire garanti egalernent au Procureur. La Chambre de premiere instance l'a affirme, par exemple, dans I'affaire Blaskic ." En second lieu, l'alinea (4) e de I' article 21 du Statut dispose que la Defense peut interroger ou contre-interroger les temoins a charge et obtenir la comparution des temoins a decharge dans les memes conditions que les temoins a charge . Or, l'interpretation du principe d'egalite des armes proposee par la Cour EDH ou par Ie Comite des droits de I'homme parait renvoyer strictement au droit de I'accuse a beneficier d'une egalite sur Ie plan de la procedure avec Ie Ministere public, lequel possede les moyens d'investigation de la puissance publique." La jurisprudence du TPIY s' en demarque." Elle s' est, dans un premier temps, fondee sur l'idee que, contrairement aux juridictions internes, Ie Tribunal ne jouit pas de moyens de coercition et que la conduite des proces depend de la cooperation des Etats , pour considerer que Ie principe d'egalite des armes devait etre interprete plus largement que devant les juridictions internes ." Elle a impose I' egalite stricte entre les parties; la Chambre de premiere instance saisie de I'affaire Celebici, puis la Chambre d'appel en I'affaire Aleksovski prennent c1airement position en ce

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Le Procureur c/ Blaskic , IT-95-14, Decision sur la demande de la Defense sur les mesures de protection des temoins DIH and D/I , 25 septembre 1998. Robertson David, A Dictionary of Human Rights (London, Europa Publications Limited, 1997), p. 77, pour une definition de la notion de fair trial: "The idea ofa fair trial is central to human rights doctrine, not only as a right in itself, but because without this one right, all others are at risk; if the state is unfairly advantaged in the trial process, it cannot be prevented in the courts from abusing all other rights". Le concept de proces equitable est done lie a la conception classique des droits de l'homme consideres du point de vue des Etats. De plus, Ie sens de la notion de fair trial depend etroitement du type de procedure a laquelle elle s'applique: accusatoire ou inquisitoire. Deja dans une decision dans l'affaire Le Procureur c/ Dusko Tadic, sur les mesures de protection des temoins, la Chambre avait ete amenee a conclure qu'elle n'etait pas liee par I' interpretation du droit a un proces equitable donnee par d'autres instances et qu'elle devait interpreter Ie Statut "dans Ie cadre de son propre contexte et definir ou se situe I'equilibre entre Ie droit de l'accuse a un proces equitable et public et la protection des victimes et des temoins dans Ie contexte de son cadrejuridique unique". Affaire Tadic, IT-94-I-A, 15 juillet 1999, Chambre d'appel.

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sens." Le principe de l'egalite des armes doit etre interprete en faveur des deux parties et non seulement en faveur de l'accuse.

b. Les modifications de l'acte d'accusation Quant a la question de la modification de l'acte d'accusation, ses limites doivent etre envisagees sous deux angles: Ie moment et Ie contenu de la modification. Le detail de la reglementation du RPP revele une volonte de concilier les exigences de la procedure accusatoire (en laissant une liberte maximale a l'accusation) avec la protection des droits fondamentaux de l'accuse." Ainsi, dans l' affaire Kovacevic, la Chambre de premiere instance refusa d' autoriser des modifications larges et substantielles de l' acte d' accusation (qui serait passe de 8 a 18 pages), qui, presque un an apres que l'acte d'accusation original ait ete confirme et sept mois apres I'arrestation de l'accuse, reviendraient a priver celuici de son droit a un proces rapide et equitable . La Chambre d'appel s'est fondee sur I'article 21 (4a) du Statut, a savoir Ie droit de l'accuse d'etre informe dans Ie plus court delai de la nature des charges portees contre lui, pour infirmer cette decision. Elle se demande si cet article implique que l'accuse soit informe , au

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Ce qui impliquerait que les circonstances materielles et pratiques des deux parties soient mises aegalite. A I'occasion de I'affaire Tadic, cette question a fait l'objet d'opinions separees (dissidente et individuelle respectivement) des juges Vohrah et McDonald. Le luge Vohrah a con sidere que "the application of the equality of arms principle especially in criminal proceedings should be inclined infavor ofthe Defence acquiring parity with the Prosecution . .." (Tadic, 27 Nov. 1996, Separate Opinion of Judge Vohrah on Prosecution Motion for Production of Defence Witnes s Statements p. 4 et p. 7). Le juge McDonald, pour sa part, discute la pertinence de la comparaison entre la situation des Ministeres publics nationaux et celIe du Procureur pour Ie TPIY qui est tributaire d'une cooperation incertaine des Etats (Deci sion precit., par. 32) . Voir affaire Celebici, 4 Feb . 1998, par. 49: "There is no doubt that the procedural equality means what it says, equality between the Prosecution and the Defence. To suggest, as has been done in the above quotation, an inclination in fav or ofthe Defence is tantamount to a procedural inequality in favour ofthe Defenc e and against the Prosecution , and with result in inequality of arms" . Enfin, voir: affaire Aleksovski, 16 fevrier 1999, Arret. De teUes modification s sont prevues aI' article 50 du RPP. L' acte d' accusation peut en principe etre modi fie atout moment, mais selon Ie moment ou eUe intervient Ie regime de la modifica tion varie . Quant au fond, les modifications de l'acte d'accusation peuvent etre importantes, leur limite n'est pas expressement indiquee par Ie RPP; dans l'hypothese ou les modifications effectuees sont substantieUe s la reconfirmation de l'acte ouvre des pos sibilites sans limites autres que celles des exigences d'une bonne administration de la justice.

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moment de son arrestation, de tous les chefs d'accusation sur lesqucls il va etre juge. En sc referant a l'article 9 (2) du PIRDCP,79 elle repond que c'est bien la question de la legalite de I'arrestation qui se pose; mais qu'en l'espece, elle est licite puisqu'elle n'etait basee que sur les chefs d'accusation contenus dans l'acte initial, ses modifications ulterieures ne pouvant invalider l'arrestation ." Alors, a partir de quand la modification d'un acte d' accusation constitue-t-elle un veritable nouvel acre d'accusation? Selon l'opinion separee dujuge Shahabuddeen dans la meme affaire : "additional charges must bear a reasonable relationship to the matrix of facts involved in the original charge", mais il n'est pas necessaire que tous les faits allegues soient identiques : "It is enough if the new charges cannot be alleged but for the facts which give rise to the old" . Enfin, l'accusation a-t-elle I' obligation de deposer une demande de modification sitat qu' elle dispose des moycns de preuve suffisants ? Toujours selon Ie juge Shahabuddeen, il existe a principle which recognizes that the Prosecutor has a right not to institute charges as soon as it has enough material to do so; it may completely defer doing so until it has enquired into the possibility of obtaining better or alternative forms of evidences, II est anoter que le niveau de preuve requis est faible au stade de la confirmation (selon l'interpretation habituelle de l'article 19 du Statut), Autremcnt-dit, les limite s de la modification de I' acte d' accusation doivent etre appreciees en consideration du dro it pour l'accuse de disposer des moyens necessaires pour la preparation de sa defense et de l'exigence d'un proces sans retard excessif, L' ajout de charges supplernentaires a une phase avancee de la procedure risquerait de porter prejudice a l'accuse dans la preparation de sa defense ou de rallonger la duree du proces , en raison de delais supplementaires qui devraient alors lui etre accordes pour preparer correctement sa defense .

c. Le plea ofguilt ou comment eviler le plea bargaining A propos de la procedure du plaidoyer de culpabilite la pratique du Tribunal a suscite une evolution du RPP afin de garantir Ie caractere equitable du proces ."

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80 81

Cornite des droits de l'homme, affaire Glenford Campbell, communication No. 248/1987, en date du 30 mars 1992. Decisions Kovacevic des 5 mars et 2 juillet 1998.

Erdemovic, 7 octobre 1997, precit. De plus, dans Ie Jugement portant condamnation de Erdemovi c, la Chambre de premiere instance examine la validite formelle et substantielle du

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C' est I' affaire Erdemovic qui a conduit acette modification, apres que la Chambre d'appel ait invalide sa declaration de culpabilite au motif que l'accuse n'aurait pas ete bien informe des charges qui pesaient contre lui. 82 En decernbre 1998, I' article 62 bis est venu completer Ie RPP sur ce point. II precise que Ie plaidoyer de culpabilite doit avoir ete fait deliberement, en connaissance de cause, qu'il ne doit pas etre equivoque et qu'il doit exister des faits suffisants pour etablir Ie crime et la participation de l'accuse a celui-ci, compte-tenu soit d'indices independants soit de I'absence de tout desaccord fondamental entre les parties sur les faits de l'affaire." Cette procedure est particulierement delicate a mettre en ceuvre de facon equitable. Ni Ie Statut du TPIY, ni le RPP ne reglent les conditions d'eventuelles negociations entre Ie Procureur et I' accuse. lis ne conferent pas non plus au Procureur la possibilite de garantir aI' accuse une quelconque immunite. Le Procureur a done peu aoffrir (excepte Ie retrait de certaines charges ou un allegement eventuel de la sentence) et s'il offre quelque chose qu'il n'est pas en mesure de garantir, I' admission de culpabilite pourrait etre entachee (absence de volonte libre) et rejetee , Dans l'affaire Erdemovic, la Chambre de premiere instance a d'ailleurs refuse I'accord entre Ie Procureur et la Defense relatif a la peine considerant que, si la pratique du plea agreement est commune dans certains systemes juridiques, elle n'etait aucunement liee par cet accord intervenu entre les parties de leur propre initiative." La procedure de I' admission ofguilt introduite dans Ie Statut de Rome, en son article 65.5, tente de tirer les consequences et les lecons de la pratique du TPly'85

plaidoyer de culpabilite effectue par I' accuse . Elle rappelle a cette occasion que "le choix de plaider coupable participe non seulement de la conscience chez un accuse d' avoir commis un crime et de Ie reconnaitre, mais aussi de la faculte d'adopter une ligne de defense qui lui est formellement reconnue dans la procedure en vigueur au Tribunal et qui est consacree dans les systernes juridiques de commom law" (Le Procureur c/ Drazen Erdemovic, IT-96-22-T, Jugement portant condamnation, 29 novembre 1996, par. 10-20). 82

Dans leurs opinions separees, qui accompagnent cette decision, les juges McDonald et Vohrah considerent que pour qu'une declaration de culpabilite soit valide, il faut qu'elle soit "voluntary, unequivocal and informed" (Ie troisierne element faisant defaut en l'espece).

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Le fait que les parties aient pu s'accorder sur Ie crime reproche n'est pas suffisant. Les juges doivent egalement trouver dans les elements de I' affaire de quoi asseoir leur conviction, tant en droit qu'en fait, que I'accuse est bien coupable de ce crime. Voir Le Procureur c/ Goran Jelisic, IT-95-1O-T, Jugement, 14 decembre 1999, par. 25.

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Erdemovic, precit., Jugement portant condamnation, 5 mars 1998, par. 18-19.

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En effet, la formule adoptee dans Ie Statut de la Cour permanente, dite "admission ofguilt" se situe entre Ie "plea of guilt" et I' "admission of the facts" ; c'est-a-dire qu'en realite elle

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d. L'appel Enfin, la possibilite du double degre de juridiction est un element fondamental du respect des droits de I' accuse. L' appel est prevu a I' article 25 du Statut du TPYI et au Chapitre 7 du RPP. La encore, la jurisprudence du Tribunal a etabli la filiation claire et explicite entre l' article 25 du Statut et Ie droit international des droits de I'homme tel qu 'il apparait dans Ie PIRDCP.86 En principe, l'appel est ouvert largement, sauf en ce qui concerne les exceptions prejudicielles. Dans ce cas, I'appel est limite aux exceptions d'incompetence, a moins que les juges n'en decident autrement "apres que la partie requerante a presente des motifs convaincants" (article 72 B) RPP, notion de "good cause" dans la version anglaise)." Les decisions sur les autres requetes ne peuvent faire I'objet d'un appel sauf autorisation, fondee soit sur Ie caractere irreparable du prejudice que subirait l'accuse, soit sur "une question d'interet general pour IeTribunal ou pour Ie droit international en general". II semble qu'Il y ait eu une evolution en la matiere," les juges d'appel verifiant systematiquement, selon Ie cas, l'existence de motifs convaincants ou de la proba-

resultc d'un compromis entre les systernes de civil law et de common law. A la difference du plea ofguilt, qui prevaut devant les Tribunaux ad hoc, la Chambre n'est pas liee et n'est pas invitee a passer directement au stade de la sentence . 86 87

88

Decision Tadic, 2 octobre 1995, precit ., par. 4. Voir sur ce point Ie resume presente dans Ie Seme Rapport annuel du Tribunal, par. 10I et 102 et Ie 4eme Rapport annuel du Tribunal , par. 53 et 54 sur la question des appels avant dire droit. C'est-a-dire que l'interpretation de la notion de motifs convaincants, "good cause", aurait d'abord ete operee dans Ie sens de "serious cause", "cause ou motif grave" en francais , avant de se contenter d'un "motif serieux" , Sur ce point, voir I'analyse de Sean D. Murphy, 'Progress and Jurisprudence of the International Criminal Tribunalfor The Former Yugoslavia' , (94) AJlL, vol. 93:57, 1999. D'autre part, la Chambre d'appel n'a pas autorise les appeIants a soulever devant elle des question s qui n'auraient pas ete soulevees devant la Chambre de premiere instance (affaire Celebici , Chambre d'appel, 6 decernbre 1996, sur la question de la competence du Tribunal) . En outre, la Chambre d'appel a souleve d'office dans I'affaire Erdemovic, la question de la validite de sa declaration de culpabilite tErdemovic, 7 octobre 1997, precit .), Entin, la chambre a rnontre une volonte certaine d'admettre des appels en dehors des "preliminary motions", com me l'appel des ordonnances sur la mise en liberte provisoire tCelebici, 22 novembre 1996) et la protection des temoins tBlaskic, 14 octobre 1996).

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bilite d'un prejudice. La notion dinteret general est quant a elle regulierement appliquee, parfois de maniere extensive." En ce qui concerne Ie double degre de juridiction, comme de facon plus generale les exigences du proces rapide et equitable, la pratique du TPIY tente de corriger les faiblesses de son Statut." Elle met les standards internationaux en matiere de droits fondamentaux des accuses a I' epreuve de la justice penale internationale et les enrichit de cette experience. II en va de merne pour Ie droit des victimes a la justice."

B. Le droit des victimes face a la justice internationale II s'agit du Right tojustice, qui comporte trois composantes: Ie droit d'acceder ala justice, Ie droit de connaitre la verite, Ie droit d'obtenir compensation." On Ie trouve dans des instruments juridiques internationaux recents.?' La pratique du TPIY s'efforce de mettre en oeuvre ce droit fondamental des victimes et de lui assurer une effectivite. Pour les besoins de I'analyse, il est interessant d'en retenir

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Voir par exemple I'autorisation d'interjeter appel sur la decision de la Chambre de premiere instance dans I'affaire suivie contre Kvocka et autres, de refuser de surseoir 11 statuer jusqu'a ce que Ie CIJ ait tranche la requete presentee par la Bosnie Herzegovine (decision de la Chambre d'appel du 16 fevrier 2001, IT-98-301I-AR73.5). Voir la question de la reformatio in pejus, par exemple les problernes souleves in Morris Virginia & Scharf Michael P., An Insider's Guide to The International Criminal Tribunalfor The Former Yugoslavia, Transnational Publishers, Inc., Irvington-on-Hudson, New-York, vol. I, p. 295, d'autant que I'appel est ouvert aussi a I' Accusation. Voir les reflexions du Juge Cassese dans son opinion dissidente dans l'arret Erdemovic, 7 octobre 1997, precit ., p. 7, par. 5. Nations Unies, Rapport de Theo van Boven et Louis Joinet. Selon Ie rneme rapport, "The right to justice is embodied in internationally binding and universally accepted provisions, such as article 2, par. 3 ofthe ICCPR, article 2 par. 3 and article 8 of UDHR". Voir sur ce point "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power", GA Res. 40/34 (29 November 1985); "Draft Guidelines on Victims Redress" de la sous-commission sur la prevention de la discrimination et la protection des minorites (UN Doc. E/CN.4/1997/104 (January 16, 1997); Resolution 1998/43 de la Commission des droits de I'homme. A noter que ces instruments internationaux sont plutot tournes vers la justice interne.

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deux aspects: celui de l' acces a la justice et celui de la satisfactio n que les victimes peuvent tirer de la justice intem ationale telle qu ' elle est rendue par le TPIY.

1. Acces

alajustice

L'acces des victimes a la j ustice penale intematio nale est une ques tion encore tres co ntrove rsee . La pratiqu e du TPIY s'efforce, dans une certaine mesure , de compenser une lacune de son Statut en la matiere en proposant une definition elargie de la victime et en tirant de cette definition les consequences qui s'i mposent.

a. Definition de la victime La definition de la victime reten ue a I'article 2 du Reglernent est restrictive : il s'agit de toute personne physique a l' egard de laquelle aurait ete commise une infraction relevant de la competence du Tribunal. Cela exclut la famille de la notion de victime, alors meme que la conceptio n defendue par l' ONU etait plus large, comme l' est celIe adoptee dans le Statut de Rome. Cependant , dans la jurisprudence du TPIY, la notion de victime est etendue a I'humanite, en vertu de l' idee que dans Ie crime de genocide et plus largement les crimes contre l' humanite, les victimes ne sont pas seulement des individus, ni des groupes identifiables mais aussi l' humanite tout entiere.?' Parallelement Ie TPIY a exprime, des les premieres annees de son existence , la preoccupation de la diffusion de son travail et la volonte de rendre Ie principe de la publicite de la j ustice (et des debars) Ie plus effectif possible. Un cadre a ete donne a cet effort des les debuts de la pratique du Tribunal. Les "Guidelines fo r Audio-Visual Director For Recording of Tribunal Proceedings" sont des indications donnees aux personnes qui sont chargees de chois ir les plans a partir des images enregistrees par les six cameras installees dans chaque salle d'audience. Ces regles sont destinees a garan tir l'I mpartialite de fa couverture

94

les crimes co ntre l'h umanite transcen dent aussi l'individu puisqu'en attaq uant I' hornrne, est visee, est niee , l' Humanite. C'est l'id entite de la victime, l' Humanite, qui marque d'ai lleurs la speci ficite du crime contre I' hurnanite'' (Le Procureur c/ Drazen Erdemovic, IT-96-22-T, 29 novembre 1996. Jugement portant condarnnation). Voir egaleme nt sur ce point: Bassiouni Cherif M., "Strengthening the Norms of International Humanitarian Law to Combat Impunity" , in The Future of International Human Rights , precit., p. 249 qui parle de "world victimization". " •••

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mediatique." La publicite etendue des audiences correspond en effet 11 diverses preoccupations, parmi lesquelles: la distance entre les lieux de commission des crimes et les Pays-Bas qui est tres importante.w la necessite d'une preuve tangible du fonctionnement de la justice internationale et de son impartialite compte tenu du mode de creation du TPIy;911a possibilite pour les victimes des crimes commis en ex-Yougoslavie de voir lajustice rendue, comme l'humanite tout entiere." Pourtant, la question de la place accordee aux victime s dans Ie proces international devant Ie TPIY demeure .

b. La place accordee aux victimes Les victimes des crimes poursuivis devant Ie Tribunal n'ont pas d'acces direct 11 la justice penale international e dans la mesure ou elles ne peuvent pas declencher I'action devant Ie Tribunal. La procedure qu'il applique confere au seul Procureur la tache d'entamer des poursuites et la victime n'intervient dans Ie proces qu'en

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Un rapport independant dilig ente par Ie Centrefo r Media and Justice (Dr Paul Mason) sur les premieres annee s d'experience de la couverture mediatique des audiences conclut 11 I'influence positive de I' introducti on des cameras dans Ie pretoire . .. alors que des reticences sont marquees 11 cet egard par la plupart des systemes juridiques internes. Si I'o n garde 11 I'e sprit que Ie systerne domin ant en droit penal est celui de la competence du tribunal du lieu de commissio n de I'infraction , comp etence dite territoriale. Compte tenu des rnodalites de creation du TPIY, par un organe politique,le Conseil de securite, ce qui a suscite d'arnples debat s sur la legalite de la creation du Tribun al ad hoc, il est important que Ie principe de publicite des debars soit appliqu e de faco n extensive, comm e preuve de l' impartialite des proces, Voir aussi, 11 ce propos: Sutter cl Sui sse, arret du 22 fevrier 1984, Cour EDH , Ser, A, no. 74, par. 26: "la publi cite contribue 11 la realisation du but [.. .] d'un proces equitable" et sur Ie droit de la communaute internationale 11 etre inforrnee voir Le Procureur cl Tadic, IT-94-1-T, 26 juin 1996 et 29 aofit 1996 , Deci sions relatives aux requetes de la Defen se aux fins de proteger des temoins 11 decharge, Ces exigences parfois contradictoire s se trouvent resumees dans la decision de la Chambre de premiere instance du 10 aout 1995 dans I'affaire Tadic : "The benefits ofa public hearing are well known. The principal advantage of press and public access is that it helps to ensure that a trial is fa ir... In addition, the International Tribunal has an educational fun ction and the publi cation of its activities helps to achieve this goal. As such, the Judges of this Trial Chamber are, in general, in fa vor ofan open and public trial. Nevertheless, this preference f or publi c hearin gs must be balanced with other mandated interests, such as the duty to protect victims and witnesses ..;" , (Prosecutor v. Dusko Tadic, IT-94-I -T, Decision on the Prosecutor' s Moti on Requesting Protective Measure s for Victim s and Witne sses, par. 32-33) 10 August 1995.

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tant que temoin, veritable instrument mis au service de la cause de l'une des parties, Procureur ou Defense. Cette situation est assez differente de celIe qui prevaut devant les instances judiciaires intemationales chargees de connaitre des violations des droits de l'homme. Des voix de plus en plus nombreuses s'elevent pour regretter que les victimes soient cantonnees a ce role, d'autant que la victimisation de populations entieres rend leur participation a la justice plus indispensable encore. L'actuel President du Tribunal, Claude Jorda, entre autres personnalites s'cst souvent exprime sur cette lacune de la procedure." Seules la participation de la victime dans la procedure ainsi que la reparation de son prejudice seraient susceptibles de lui rendre une dignite perdue. La pratique du TPIY tente tout de meme d'offrir a la victime une certaine satisfaction.

2. Satisfaction tiree de lajustice internationale La satisfaction que les victimes de l'ex-Yougoslavie peuvent tirer de la justice intemationale rendue par Ie TPIY se concentre en deux poles: Ie temoignage et la restitution des biens ainsi que la reparation des prejudices subis .

a. Temoignage La place des victimes dans Ie proces devant Ie TPIY est celIe de temoins .l'" Les dispositions statutaires ainsi que la pratique du TPIY, tres bien etablie, reievent de facon notable les standards intemationaux en matiere de protection des victimestemoins . Les mesures de protection des temoins sont varices: attribution de pseudonymes , distorsion des voix et des visages, voire anonymat total.'?' Le droit a un proces

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IOQ 101

De plus, les travaux recents de I'ONU , du Conseil de I'Europe, de merne que les recents travaux de doctrine, panni lesquels Ie Colloque international sur "I'acces des victimes 11 la Cour penale intemationale", 27 avril 1999 (intervention de la Ministre francaise de lajustice, Elisabeth Guigou) ont tous affirme que la seule condamnation du coupable ne suffit pas 11 restaurer la paix. Selon I'article 22 du Statut etl' article 75 du RPP. Exemple : affaire Tadic, 10 aoflt 1995, Decision sur I'anonymat complet des temoins. La Chambre de premiere instance a etabli des criteres pour ce faire: I'existence d'un danger reel pour Ie temoin et sa famille , I'importance du ternoignagc , Ie fait qu'il y ail eventuellement

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public et equitable doit done etre mis en balance avec la necessite d'assurer la securite des temoins et de leurs families et que le temoignage ne perpetue pas leurs souffrances. La jurisprudence du Tribunal est allee relativement loin dans ce domaine en montrant, al' occasion de l' affaire Tadic, que dans le cas de viols et de violences sexuelles le temoignage a un effet de "victimisation secondaire" sur les personnes qui acceptent de temoigner.P- De plus, les mesures de protection ne beneficient pas seulement aux personnes qui temoignent contre I'accuse, mais egalement aux temoins cites par la Defense .!" Enfin, un certain nombre de temoins se sont vu octroyer des sauf-conduits par les Chambres de premiere instance afin de pouvoir venir temoigner aLa Haye sans risquer d'etre arretes.'?' Une question delicate demeure : celle du moment OU Ie Procureur doit communiquer ala Defense les pieces qu'il detient, la liste de ses temoins, afin de permettre a la Defense de preparer son contre-interrogatoire, sans pour autant mettre les temoins en danger. 105 Finalement, si la victime n'intervient pas en tant que telle au proces devant le TPIY, l' experience de la justice intemationale menee dans le cadre du TPIY a contribue ace que soit incluse aI'article 68.3 du Statut de Rome, I'intervention de la victime.l'" En vertu de cet article, la victime peut participer au proces pour y faire valoir ses "vues et preoccupations" lorsque ses "interets personnels" sont en cause. prima facie manque de credibilite du temoin , Ie fait qu'il y ait d'autres mesures de protection possibles etla question de savoir si l'anonymat total est reellernent necessairc, 102 103

104

105

106

Decision Tadic, 10 aoutl995 , precit, Affaire Erdemovic , 18 octobre 1996, par exemple. Voir la decision de la Chambre de premiere instance rendue Ie 25 juin 1995, dans l'affaire Tadic; voir aussi a propos de I'affaire Celebici , Ie par. 16 du Seme Rapport annuel du Tribunal (A/53/219, 10 aout 1998) et, pour I' affaire Dokmanovic, lc par. 56 du meme Rapport , qui renvo ient a la decision de la Chambre de premiere instance II du 2 aout 1997 sur les limites etl'importance des sauf-conduits (importance de la presence physique des temoins) . Certains abus ont du etre sanctionnes par la cour en la matiere ; voir I' affaire Furundiija sur la lenteur du Procureur ("conduct close to negligen ce") ; en l'affaire Blaskic, la Decision du I I decembre 1998; voir aussi Ie problerne pose dan s I'affaire Celebici (Prosecution Case to Continue Friday after Decision on Contempt Issue, ICTY Doc. CCIPIU/204-E, 29 May 1997). En matiere de participation des victimes aux proces criminels, I' Allemagne, I' Autriche , la France ou \'Italie ont des standards plus eleves que Ie Statut de la Cour penale intemationale permanente; alors que d'autres systernes, comme ceux des Etats-Unis ou du Royaume-Uni offrent un acces plus restreint encore . Le Statut de Rome est un compromis entre les systemes de common law et de civil law .

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D'autre part, une solution alternative s'offre afin de permettre fa participation des victimes aux proces devant Ie TPIY : celie de la procedure d' amicus curiae . Selon les termes du RPP, article 74, une "Chambre peut, si elle Ie juge souhaitable dans l'interet d'une bonne administration de la justice, inviter ou autoriser tout Etat, toute organisation ou toute personne a faire un expose sur toute question qu' elle juge utile" . 107 De nombreuses demandes d' amicus curiae ont ete presentees dans les affaires Blaskic, Erdemovic ou encore Tadic et un certain nombre de groupes ou de personnes ont ete autorises a presenter des exposes oraux devant Ie Tribunal.'?" Des associations de victimes pourraient beneficier de cette possibilite et offrir ainsi a leurs membres des modalites nouvelles de mise en oeuvre de leur dro it a lajustice, d'autant que la pratique des differentes Chambres du TPIY s'y est montree favorable .P? Peut-on considerer que cette disposition en elle-rneme, ainsi que la pratique a laquelle elle donne lieu, sont suffisantes pour assurer le respect par le Tribunal de la regle incluse dans la Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power laquelle reconnait l'importance of allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected , without prejudice to the accused and consistent with the relevant national criminal justice system ?'!" En plus d'une certaine participation, les victimes peuvent obtenir restitution de leurs biens et reparation de leurs prejudices.

107

108

109

110

Voir les commentaires de Morris Virginia & Scharf Michael P., An Insider 's Guide, supra n. 90, vol. I, pp. 269-270 . Cette disposition est en principe suffisamment large pour assurer aux interets des victimes une representation adequate tout au long de la procedure. Exemple : saisie d'une demande de la Republique de Croatie tendant a la reformation de la decis ion de la Chambre de premiere instance II (delivrance d'injonction apresenter des documents), deposee Ie 18 juillet 1997, la Chambre d'appel a invite Ie 29 juillet 1997 les amicus curiae interesses apresenter des expose s pour Ie 15 septembre 1997 et aytraiter de questions com me la faculte pour Ie Tribunal d'enjoindre aun Etat et a ses agents agissant a titre officiel ou prive de produire des documents, les mesures qu'il convient de prendre en cas dinobservation et autres problerne s connexes comme la securite nationale . En consequence, neuf exposes ont ete presente s (voir Ie Serne Rapport annuel du Tribunal, par. 99 et note 17). Voir aussi Ie 4eme Rapport annuel du Tribunal, par. 50-52 . voir Morris Virginia & Scharf Michael P., An Insider 's Guide, supra n. 90, vol. I, pp. 269270 . Resolution 40/34 (1985) par. 6b.

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b. Restitution et reparation La restitution est prevue par l' article 105 du RPP, selon les modalites suivantes : la Chambre de premiere instance, apres Ie jugement de culpabilite, doit, sur requete du Procureur, ou peut , d'office, tenir une audience speciale pour determiner les conditions dans lesquelles un bien doit etre restitue et prononcer la restitution. I I I La pratique du Tribunal en la matiere est assez mince . II faut noter cependant, que tout comme pour garantir une reparation effective des dommages subis par les victimes, les juges de la confirmation peuvent des la phase initiale du proces international ordonner Ie blocage des avoirs des accuses (I' exemple de I' affaire Milosevic va etre evoque a propos de la reparation). L'obligation faite aux Etats de reparer Ie prejudice des victimes de violations serieuses du droit humanitaire et des droits de I'homme, est incluse dans bon nombre d' instruments universels ou regionaux contraignants.!" Mais , il faut noter que dans Ie cas de lajustice penale internationale c'e st Ie condarnn e et non I'Etat qui est personnellement charge de la dette de reparation .'!' L' article 106 du RPP prevoit que Iejugement definitif rendu par IeTribunal international sera determinant quant a la responsabilite penale de la personne condarnn ee. La victime ou ses ayant s

I II

112

II s'agit de bien s dont la Ch amb re a, au prealable, decl are qu 'ils ont ete acquis illicitement (dans Ie ju gement lui-memo, article 98 ter du RPP). La Chambre es t habilit ec a prononcer des mesures conse rvatoires pour assurer Ja preservation de ces biens, elle doit en determiner Ie veritable propri etaire (lorsqu'elle n' y parv ient pas, elle a la possibilite de s'adresse r aux autorites national es competentes) . La Chambre de premiere instance ordonne ensuite la restituti on du bien (ou du produit de son alienation) ou prend toute autre mesure qu ' elle juge appropriee. Par exemple I'article 14 de la Convention co ntre la torture, articl e 3 de la Convent ion IV de La Haye de 1907. Les systernes arnericains et europeen s de protection de s dro its de l'homme imposent un regime de reparation contre les Btats qui faillis sent a remplir leur s obligations en matiere de droits de I'homme. Voir sur cette question : Scharf Michael P., "The Case f or a Permanent Internat ional Truth Commission" , 7 Duke J. of Comp. & Int 'l L. 375 (pp . 388 et suiv ante s). note toute la difficulte qu'il y a pour les victimes identifi er les auteurs des crimes subis et, rneme lorsqu'elles les connaissent , elles manq uent de s preuv es necessaire s pour les confondre ou sont hesitantes 11 s' adresser individuellement 11 la ju stice. met en avant les faibles ses de lajustic e interne sur ce plan.

n

a

n

113

Voir aussi sur la question de la respon sabilite de I'Bt at, Scharf M.P., eod. loc., p. 391 et surto ut Murph y John E, "Civil Liability fo r the Commission of International Crimes as an Alternative to Criminal Prosecution" , Harvard Human Rights Journal, vol. 12, Sp ring 1999, pp. I et s.

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droit peuvent, conformement a la legislation nationale applicable, intenter une action devant une juridiction nationale ou toute autre institution competente pour obtenir reparation du prejudice. Contrairement a la Cour penale internationale permanente, Ie TPIY ne peut prononcer lui-rneme la reparation . I 14 La reparation est favorisee par la pratique du Tribunal, dans la mesure du possible et compte tenu de la faible latitude que lui laissent ses dispositions statutaires . Ainsi, Ie luge Hunt, en confirmant I'acte d'accusation contre Slobodan Milosevic, a use de la faculte de prendre des ordonnances consecutives a I'acte d'accusation prevue a I'article 19.2 du Statut, et aux articles 54 et 47 H) I) du RPP. II a ordonne que tous les Etats membres de I' Organisation des Nations Unies menent des cnquetcs pour determiner si les accuses possedent des avoirs sur leur territoire et, dans I' affirmative, prennent des mesures conservatoires aux fins de bloquer ces avoirs . Le Procureur avait fait valoir que les mesures requises ernpecheraient les accuses d'utiliser lesdits avoirs pour se soustraire a une arrestation et qu'elles avaient egalernent pour objectif la restitution des biens ou du paiement apartir du produit de leur alienation . I15 Les lecons tirees de la justice internationale telle que mise en oeuvrepar IeTPIY tendent egalement a promouvoir l'idee d'une responsabilite civile . Dans un Rapport du 8 septembre 1999, Ie Secretaire general des Nations Unies, Kofi Annan, indique que Ie Conseil de securite devrait recommander que la responsabilite penalc individuellc en matiere de crimes de guerre soit completee par une responsabilite civile (par. 38). II faudrait selon lui etablir un dispositif juridique international facilitant la recherche et la saisie des avoirs des combattants incrimines et de leurs chefs.'!" II etait d' ailleurs prevu, au moment de la creation du Tribunal, dans la

114

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Le Statut de Rome prevoit que la Cour elle-rnerne peut prononcer la reparation (article 75). La Cour sera chargee de determiner l'etendue des prejudice s. La marge d'appreciation semble large, mais les modalite s exactes de l'evaluation de la reparation restent a determiner. Le Procureur c/ Slobodan Milosevic, IT-99-37-I, 24 mai 1999, Decision relative a I'examen de I' acte d' accusation et ordonnances y relatives, par. 27.

Cette recommandation figurait deja dans un rapport anterieur, N52/871-S/1998/318, Rapport du Secretaire general au Conseil de securite du 13 avril 1998, sur "Les causes des conflits et la promotion d'une paix et d'un developpement durables en Afrique", par. 50. Sur la nece ssite de mettre en ceuvre la responsabilite civil e des auteurs de crimes internationaux comme alternative a la respon sabilite pen ale lorsque celle-ci n'est pas concluante, ou en complem ent de celle-ci, voir Murphy John E, "Civil Liability ...", eod. loc., pp. 10 et s. II ne cache pas la difficulte d'une telle entrepri se meme devant les tribunaux nationaux .

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Resolution 827, une clause selon laquelle cette creation etait sans prejudice de I'etablissement futur d'un programme de compensation destine aux victimes. Cependant, le Conseil de securite en "debloquant" les avoirs des serbes a rendu tres difficile en pratique une telle possibilite.'!?

CONCLUSION : LA DlONITE HUMAINE RETROUVEE

Les droits fondamentaux de la personne ne sauraient plus etre concus ou Ius en faisant abstraction de I' apport du droit humanitaire et de la pratique, y compris procedurale, de la justice intemationale telle qu'experimentee par le TPIY. Or, I' axe essentiel de cette lecture parait bien eue celui de la protection et de la restitution, presque de la restauration au sens que revet ce terme en matiere de responsabilite , de la dignite humaine : dignite des victimes protegee par le rapprochement opere, non sans risque, entre droit humanitaire et droits de l'homme; dignite des victimes retrouvee par le temoignagc et la reconnaissance de leurs souffrances; dignite, aussi, des coupables, restituee par la declaration de leur responsabilite et leur expiation. Finalement, dignite rendue a l'hurnanite par la punition des crimes qui l' atteignent.

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Scharf M.P., eod. loc., p. 393. Voir I'exemple de la Commission d'Indernnisation des Nations Unies .

37

THE SETTING OF INTERNATIONAL STANDARDS IN GENOMICS Emmanuel Roucounas

I. INTRODUCTION Current developments of science and technology in the field of life and health I made it imperative for every society as well as for the international community to adopt guidelines of conduct capable to meet the overwhelmingly rapid biological and medical changes and achievements . The key word for the standard-setting in this area is Bioethics,?The concept was introduced in the United States in the early 1970s, rather as a reaction to abuses in the field of medical practice and research .' Bioethics has since gained worldwide acceptance and is now so enlarged as to embrace a regulatory function for any intervention in the health field for diagnos tic, therapeutic or research purposes .'

I

2

3

4

According to the 1947 World Health Organization definition health is "a state of complete physical , mental and social well-being and not merely the absence of disease or infirmity" . J. K. Mason, R. A. McCalJ Smith, Law and Medical Ethics (LondonlEdinburgh 1999); N. Jecker, A. Jonsen, R. Pearlman, Bioethic s. An Introduction to the History, Methods and Practice (Sudbury, Mass. 1997); T. Beauchamp, J. Childress, Principles of Biomedical Ethics (Oxford 1989); Council of Europe, Ethics and Human Genetics Proceedings 2nd Symposium of the Council of Europe on Bioethics (Strasbourg 1994); H. T. Engelhard, Jr., The Foundations of Bioethics (Oxford 1986); J. Bernard, La Bioethique (Paris 1994); S. Zaidi, M. Jafary, M. Anwar, S. Jawaid , Medical Ethics in the Contemporary Era (Karachi 1995). Ethics and Epidemiology, St. Coughlin, T. Beauchamp (eds.), (Oxford 1996).

A. Bondolfi, A. Bornpiani, M. de Wachter, D. G. Guillen, J.-F. Macherbe, W. Reich, D. Roy, vent'anni di Bioetica, Idee, Protagonisti, lstituzioni. Corrado Viafora (ed.) (Padova 1990), 143 et seq. "Biology and biomedicine have achieved the status of cynosure in science and in the society of our era. They possess enormous cultural and commercial capital and are among the most

L.c. Vohrah et al. (eds.), Man 's Inhumanity to Man, 827-846 ©2003 Kluwer Law International. Printed in the Netherlands .

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Bioethics is a synthesis of two Greek words: bios, life, but life lived and ethike, ethics in the Aristotelian sense of self-interrogation. It is true that the distinction between the ethical and the moral is quite unclear and that in some languages the two words mean the same thing. But, philosophically speaking, the concept of morality (mores in its Latin origin) means the way of life, the customs and habits that are believed to be good or bad. Morally good is what is appreciated in the external dimension of human behaviour. On the other hand, the ethical refers to the internal examination, the critical analysis that leads each one of us to the appreciation of what is right or wrong. The setting of standards in the practice of the art and science of medicine and medical research has been, ever since the times of Hippocrates , a matter for the health profession itself. Customarily the codes of deontology or other relevant professional guideline s and standards have been elaborated and implemented with sufficient effectiveness within the precise circle of each professional organization and as a matter of internal discipline. Even after the creation of international professional federations and the establishment of competent international organizations, first and foremost the World Health Organization, informality has remained the golden rule in the practice of medicine and medical research. On the other hand, formality has been and is still governing only contentiou s cases of excessive behaviour leading to civil liability and criminal responsibility within the framework of the domestic law of each state (until recently the Nuremberg rules"constituted an exception to the general rule recognizing domestic law jurisdiction). Yet the current situation, in which the horizons of science, technology and research are constantly expanding, compels the formalization of the ethical process in the field of biology and medicine. This appears to be a new necessity for biologists, physicians, the other medical scientists and for the medical personnel in general and appears now as a demand both for the legitimization for their work, as well as for delineating the limits of their activities . It also appears to be indispensable not only for patients and subjects of research but for the entire society in

visible and influential fields of a globalized world . It is not surprising then that the ethics of bioscience and biomedicine is also assuming unprecedented significance within institutions and among the general public": A. Kleinman , R. C. Fox, A. Brandt, 'Intr oduction to the Special Issue Bioeth ics and Beyond ', Daedalus, Fall 1999 (vol. 124, no 4). 5

See Trials of War Criminals bef ore the Nuremberg Mil itary Tribunals under Control Council La w No 10, vol. I, Washington, D.C. 1949, 181-182.

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view of the protection of these most cherished values of human dignity" and nondiscrimination. Thus, at the national level we witness an unprecedented promulgation of laws and regulations on bioethics and the creation of a variety of Committees and Commissions on bioethic s and medical ethics usual1yacting in a consultative capacity," In most cases these institutions are interdisciplinary and compri se physicians , biologists, researchers in pharmaceutical drugs, lawyers, philosophers, theologian s, etc. On the other hand, during the last decade at the international level several international- competent or not- organizations have been involved in ambitious initiatives and actions" that led to the creation of international bodies working on bioethics and biotechnology and to the adoption of hundred s of resolution s, recommendations and guideline s? dealing with these issues. The debate at the international level reveal s even more cultural, philosophical or religiou s divisions and makes it necessary to find for each issue at stake a bottom-line acceptable as widely as possible. It also underline s, along with the ethical , the political dimension s of the discourse. Man y internati onal bodies continue at an accelerated pace, to study the enormous material attached to bioethic s and their impact on the protection of human rights.'? In two instances, the Council of Europe at the regional level and UNESCO at the universal level have already taken the lead in the elaboration of international instruments of important legal significance: these instruments establish links between ethics , biomedicine and human rights. In the fol1owing pages we wil1 examine three internat ional instruments recently produced in this matter by these international organizations. In doing so, we wil1 not enter into a discussion of the whole spectrum of activities and problems encompassed by the concept of bioethic s. As public opinion worldwid e is currently

e

7

8

9

10

On the concept of Human Dignity in domestic and intemationallaw, see Dignity, Ethics and Law (Bibliography and comments) Center for Ethics and Law, (Copenhagen 1999). See G. Pinet, ' Health Challenges of the 2 1st Century : A Legislative Approach to Health Determinants' , International Digest of Health Legislation 1998, 131 et seq.; M. Belanger, 'Training in Health Law' , ibid., 6 1 et seq. See H. Roscam Abbing, 'Health, Human Rights and Health Law: The Move Towards Internationalization with Special Emphasis on Europe' , International Digest of Health Legislation, Special Issue on Health Legislation at the Dawn of the XXIst Century, (1998). See N. Lenoir, B. Mathieu , Le droit international de la bioethique (Textes), (Paris, 1998). See the Special issue of Health and Human Rights, vol. 2 no 3, 1997 of the Harvard School of Public Health.

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alerted to the possibilities of cloning of the human genome , we will only briefly focus on the otherwise equally wide field of genomics. Genomics is a sectorial scientific and ethical reflection and practice related to the human genome . Although it is a sub-category of bioethics, genomics is not the only "new" field for bioethics : indeed, it seems that the more the relevant specialists find it possible to assemble a number of specific experiences and questions within the territory of bioethics, the more they use different terms for their qualification. Thus, parallel to genomics, the experts also speak of biometry, a concept aiming at the identification of a person from a particular characteristic of one of its organs , for example the iris, and so forth. Along the same lines they speak of the human proteomics, the identification and study of all human proteins, which has just been declared as the next frontier of modem biology. The three international instruments that we examine here do not contain a definition of the human genome. The term genome (from the Greek genos, origin) refers to the totality of the approximately 30,000 genes every individual possesses, genes which at the same time constitute the substrata of all human beings. As Mrs Noelle Lenoir, a pioneer of the international action for the legal safeguards in this area, has put it, the genome has a tangible aspect (mainly the DNA - dioxyribonucleic acid - molecules), an immaterial aspect (the genetic information), and contains the genetic programme, which is the source of the vital functions of every individual.'! Bearing in mind that today there are no territorial borders for science, how could the law, and in particular international law, protect this invaluable and complex wealth?

II . THE 1997 CONVENTION ON BIOMEDICINE ELABORATED BY THE STEERING COMMITTEE ON BIOETHICS OF THE COUNCIL OF EUROPE At the regional level the "Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine" was elaborated within the Council of Europe, 12 it was signed at Oviedo (Spain) in 1997 and entered into force in 1999 (the 1997 European Convention on Bio-

II

12

N. Lenoir, 'Presentation of the Preliminary Draft of a Universal Declaration on the Human Genome and Human Rights' , UNESCO, CIPIBIO/96/(OM)UR6/5 (Rev.), II Sept. 1996,3. M. Palacios, 'The Asturias Convention. Bioethics Convention', Law and Human Genome Review 1997, 149-151.

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medicine"). 13 The Convention, which is open for accession to all States, provides a legal framework for the entire spectrum of medical interventions in the human body in relation to human rights." This framework Convention contains provisions directly and indirectly applicable to the human genome, but the pressure of public opinion and of the European Parliamentary Assembly led the Steering Committee of Bioethics of the Council of Europe to prepare in a hurry and the Committee of Ministers to adopt in 1998 an additional instrument to the Convention entitled "Protocol on the prohibition of cloning of human beings" ("the Protocol ") which was signed in Paris in 1998 and entered into force in March 2001. It is perhaps significant that both instruments do not once use the term "Bioethics", although from 1993 to 1997 the draft of the Convention was full of references to that term. The reason for deleting the term bioethics from the text is that, at the final phases of the work of the Steering Committee, three governmental delegations objected first, that the term does not exist in their language and second, that ethics is a chapter of behaviour very separate from the one governed by law. Although eventually accepted by the drafters, this latter assumption is erroneous, not only because a legal norm without ethical foundation does not honour a democratic society, but first and foremost because it would be impossible for legislators to regulate such a sensitive area without a clear reference to the ethical prerequisites of the legal rules provided by the international instruments on life sciences . I feel dutybound, in this context , to underline the excellent work done by the Steering Committee on Bioethics ofthe Council of Europe, a multidisciplinary intergovernmental organ, which meets regularly and - thanks to a number of specialized working groups - examines the state of the art of the very wide field of Bioethics. The Committee, assisted by a devoted small group of international civil servants of the Secretariat under the imaginative leadership of Mr Carlos de Sola, is now preparing four additional Protocols to the 1997 Convention and has the task of evaluating the application and, if necessary, reviewing, every five years, this instrument. The 1997 Convention is a legally binding treaty. It contains express provisions on the human genome and other provisions of a more general character which are in the same time equally relevant for the human genome . In a number of important items it relies on domestic law. The strength of each of its provisions obviously

13 14

European Treaty Series No 164. M. Abrams , 'The European Convention on Human Rights and Biomedicine' , in L.-A . Sicilianos, M. Gavouneli (eds.), Scientific and Technological Developments and Human Rights (Athens 200 I), 187-195.

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depends on the wording used. As a whole the Convention operates within the realm of the ideology of individualism. This is very clearly stated in Article 2 (Primacy of the Human Being) which reads as follows: "The interest and the welfare of the human being shall prevail over the sole interest of society or science". Having this in mind one can understand why, after the general provisions in the first four articles, the Convention enters the heart of the regulatory field under the title "consent" and almost all the rest of the text turns around this difficult question of consent in the exercise of medicine and in medical research" free and informed consent, consent on behalf of incapacitated persons , separately for cases of diagnostic and therapeutic medical acts and for medical research." However, there are also situations, in which consent has no effect and is illegal. A number of interventions related to the human genome fall under this category and are prohibited, with or without the consent of the subject. 17 The bottom-line of the Convention is human dignity and this concept does not only cover physical persons in the legal sense but also, according to each situation, human beings in a larger sense. Nevertheless, the Convention does not enter upon the controversial issues of the beginning and the end of life nor does it specify what is the status of the embryo," issues finally left, here and in the UNESCO Declaration, to the adventures of domestic law. In anticipation of the mapping of the human genome' ?- which was eventually published on 12 February 2001 - and the identification of all human proteins (a project announced in the United States on 5 April 200 I by three research companies)," the Convention sets out some principles of protection. Thus, Article 11 of the European Convention on Biomedicine prohibit s any form of discrimination against a person on the grounds of his or her genetic heritage. We have here an addition to the protection of every person from discrimina-

15

See E. Roucounas , 'Le droit au consentement et ses restrictions dans la Convention sur les droits de I'homme et la biomedecine' in Melanges en l'honneur de Nicolas valtlcos. Droit et ju sti ce , (Paris 1999),479-495.

16

Articles 5-9, 16-17, 19-20 of the Convention.

17

E. Roucounas , 493 et seq .

18

As for the status of the embryo see C. de Sola et S. Sabatier, 'Utiliser I'embryon humain ?' La Scien ce au present (Paris , 2000) .

19

20

See R. Horton, 'The Key to Life - or a Dead Molecule ?' , The Times Literary Supplement, 9 March 2001, 13-15. See A. Pollack , 'Three Companies Will Try to Identify All Human Proteins ' , The New York Times , 5 April 2001.

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tion under Article 14 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and under the new 2000 Additional Protocol no 12 to the 1950 European Convention on Human Rights, which enlarges the field of application of the general principle of non-discrimination. Under article 14 of the 1950 European Convention on Human Rights, "the enjoyment of rights and freedoms protected by the Convention is secured without discrimination of any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". To this indicative catalogue of grounds on which discrimination is forbidden, Article 11 of the 1997 European Convention on Biomedicine adds now the genetic heritage "of a person". But the rule of non-discrimination among persons on the basis of genetic inheritance does not exclude positive measures aiming at eliminating disadvantages that could occur because of the genetic inheritance of a person." The provision of Article 11 concerns physical persons, whenever they are recognised as such by domestic legislation. However, the principle of nondiscrimination has a larger applicability than that of the protection of the personality according to national law. Indeed, Article 14 of the 1997 Convention on Biomedicine prohibits the use of the technique of medically assisted procreation when this technique aims at choosing the sex of a future child, with a possible exception where serious hereditary sex-related disease is to be avoided . Under these two provisions (Articles 11 and 14 of the Convention) the principle of nondiscrimination is extended to the situation where an embryo has to be protected against sex discrimination, irrespective of the recognition or not by domestic law of a legal personality to the embryo. During the last 30 years the invention of powerful molecular biological techniques (DNA sequencing and cloning) and the combinant DNA technology has permitted the identification of genetic defects in advance and science has already determined the genetic origins of many diseases . Genes associated with cystic fibrosis, muscular dystrophy, Alzheimer's disease, breast cancer and heart disease are already mapped. But as Sir Aaron Clug, President of the Royal Society, has stressed," a distinction must be made between a) those cases where the harmful

21

See Council of Europe, Explanatory Report to the Convention for the Protection ofHuman Rights and Dign ity of the Human Being with regard to the Application ofBiology and Medicine, DJR/JUR (97) 5, para 77.

22

The Royal Society, Anniversary Address 2000 by Sir Aaron Klug, 30 November 2000, Royal Society News, December 2000 , I.

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mutation in the gene leads inexorably to the disease, as in sickle-cell anaemia, a straightforward mendelian disorder ; and b) other cases where it constitutes a risk factor, as in Alzheimer's disease, or where more than one gene may be involved, as in heart disease. Another distinction has to be made regarding cases where there is identification of the disharmony of the gene, but there is no cure, there is no medical intervention already possible to cure this disease . On the other hand, genetic testing" consists of medical examinations aimed at determining or ruling out the presence of hereditary illnesses, or predisposition to such illnesses in a person by directly or indirectly analyzing their genetic inheritance (chromosomes and genes) . Somatic therapy" aims to correct the genetic defects in the somatic cells and to produce an effect restricted to the person treated. Gene therapy-' on germ cells is the situation in which the disease of the person that has provided the cells would not be cured as any interference would be passed over to cells whose sole function is to transmit genetic information to future generations. Furthermore, modem techniques have made it possible to identify genes which contribute to the development of major disorders, but only when other factors, beyond individual control , are linked to environmental causes, to life-style or to the behaviour of the person concerned ." As for predictive genetic tests, Article 12 of the 1997 Convention stipulates conditions, namely that appropriate genetic counselling" must precede any such tests and that tests which are predictive of genetic diseases or could help to identify a gene responsible for a disease or a genetic predisposition may be performed only for health purposes. It is interesting to note that, according to the Explanatory Report," Article 12 as such does not imply any limitation of the right to carry out the diagnostic interventions at the embryonic stage : Article 12 protects persons after the embryonic stage and what is clearly stated there is that it prohibits the performance of predictive tests which are outside the field of health and healthrelated research, even if the person agrees to. This is a very significant rule based

23

Explanatory Report , para 72.

24

Ibid.. para 73.

25

H. Edgar, Th. Tuzsz, see Report on Human Gene Therapy, International Bioethics Committee UNESCO , (lBe), 1996.

26

Explanatory Report, supra note 21, para 73.

27

See M. Revel, 'Genetic counselling', UNESCO , mc Proceedings 1995, vol. 1, 9 et seq .

28

Explanatory Report , supra note 21, para 83.

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on treaty -law and entails the prohibition for employers to ask for or to get - even with the assent of the interested persons - the authorisation to proceed to genetic tests for employment purposes. In this matter international law intervenes to protect one aspect of the right to privacy of every person . Problems of life insurance and employment are addressed very differently by domestic law." Now, according to the 1997 Convention, if a person agrees to be submitted to genetic tests for employment reasons (apart from the case in which the working environment could have prejudicial effects on the health of the individual because of a genetic predisposition)," or if a person agrees to give an insurance company authorisation to proceed to genetic testing, the consent is not valid . The innovation produced by Article 12 has been accepted with strong opposition by some of the participants to the Steering Committee on Bioethics, It is, however, worth noting that Article 12 prohibits only genetic tests and not every kind of test in insurance and employment contracts. The question is also open as to the possibility for insurance companies or employers to obtain the genetic information from other sources. On the other hand, if a government decides to go further and prohibit every kind of test, it can do so by means of domestic legislation. But it cannot rule out by domestic legislation the prohibition to proceed to genetic tests as such, except under the conditions prescribed in Article 12. Likewise, Article 13 entitled "Intervention on the human genome" does not prohibit any intervention seeking to modify the human genome. It prohibits those which are not undertaken for preventive diagnostic or therapeutic purposes. It also provides that an intervention seeking to modify the human genome for these purposes should not aim to introduce any modification in the genome of any descendance. The thrust of the provision is that in case interventions aim to modify the human genome for preventive diagnostic or therapeutic purposes these inter-

29

30

On this problem, see M. Rothstein, B. M. Cnoppers, 'Legal Aspects of Genetics Work and Insurance in North America and Europe' , European Journal ofHealth Law, 1996; R. Pokorski , 'GeneticInformation and Life Insurance', Nature, Jul y 1995, 13-14. A. Lawton, ' Regulating Genetic Destiny : A Comparative Study of Legal Constraints in Europe and the U.S.A.', Emory International Law Review, 1997, no 2. "In particular circumstances when the working environment could have prejudicial consequences on the health of an individual because of a genetic predisposition, predictive genetic testing may be offered without prejudice to the aim of improving working conditions." Explanatory Report, supra note 23 .

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ventions shall be practised (applied) under the protective standards set forth by the Convention, and in particular by the provisions on scientific research . Screening" is a method that helps in detecting diseases. However, there may be deficiencies and errors in screening programs that make difficult to undersign a general acceptance of screening. As has been pointed out, a false negative means that the opportunity for investigation and treatment has been missed, a false positive means further tests and possible treatment where neither is needed." It is necessary that people are adequately informed about the possibility of false negative results that will permit them to accept screening with much more circumspection." The limits of the right not to know are to be found in conjunction with the provisions of Articles 10 paragraph 2 (Private life and right to information) and 26 (Restrictions on the exercise of the rights). Under the title "Scientific Research", Chapter 5 of the 1997 Convention deals practically with biomedical research.t' Article 15 announces the general rule of the freedom of scientific research, freedom which is nonetheless counterbalanced by the imperative need to protect the human being, and Article 16 sets a series of conditions for the protection of persons undergoing research . These condit ions are mainly five: first, the research will be lawful, only if there is no alternative of comparable effectiveness to research on humans; second , the risks are not disproportionate to the potential benefits of the research of this person ; third, the research has been approved by a competent body (a question which is elaborated further by a draft Protocol on biomedical research , currently in the phase of acceptance by the Steering Committee on Bioethics); fourth, there is specific information on the rights of and the safeguards provided by law for the persons undergoing research; and finally fifth, the consent of the subject has been given expressly, specifically and is documented. Another series of rules aims at the protection of persons not able to consent to research (Article 17). This is a very delicate aspect of the acceptability of scientific research ; indeed, the first rules set forth by the Nuremberg Code attached to the Statute of the International Military Tribunal for War Criminals had to deal with

31

Newbord screening, carrier screening , prenatal screening , etc. See W.T. Reich (ed.), Encyclopedia of Bioethi cs (1995) , vol. 2, 970.

32

'The Screening Muddle' , Lancet 1998, vol. 351, 459 .

33

M.S. Fox, 'Cancer Screening : Does it help?' , UNESCO , IBC Proceedings. 1998,35-38.

34

See E. Ozsunay, Protection ofPerson in Medical Research, General Report to the XVe International Congress of Comparative Law (Strasbourg, 1998).

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this problem of unwanted research on persons who were either prisoners of war or confined in concentration camps. Finally, article 18 prohibits the creation of human embryos for research purposes, in other words a human embryo can be the object of research in vitro, where such a research in vitro is authorized by domestic law but it is prohibited to create human embryos for that purpose. Research in vitro could be performed on supernumerary embryos, which in one way or another are bound to be destroyed. A draft 2001 Protocol on Biomedical Research which is to become a second addition to the 1997 European Convention on Biomedicine" contains a very detailed enumeration of the conditions under which biomedical research can be undertaken within the framework of the Convention. The discussion and drafting of this Protocol has taken place over ten years and it is, in our opinion, the most current document taking into consideration all the parameters of the development of the practices of scientific research worldwide . Here, it is possible to speak of codification because the document contains a sort of generalization , it refers to guarantees that have to be adopted at the national level and provides a very good standing for harmonization of practices in biomedical research, whose extraordinary development needs to be based on a solid standardization. One should also note that the prohibition of genetic tests carried out for the benefit of third parties does not extend to tests which are necessary for the interests of public safety, the prevention of crime or the protection of public health. These tests can only be performed a) upon a judicial decision, b) in criminal trials, or c) for parental identification of the DNA.

III. THE 1998 ADDITIONAL PROTOCOL TO THE 1997 EUROPEAN CONVENTION ON BIOMEDICINE It is true that Article 13 of the European Convention prohibits the cloning of human beings without using the term, maybe because cloning is understood in a variety of ways."

35 36

At the finalization of the present paper the draft was still "restricted". See World Health Organization , Cloning in Human Health (I April 1999) Doc. A 52/12; M. Revel, 'State-of-the-Art on Research on Cloning of Whole Organisms' IBC, Proceedings 1999, Unesco, vol II, 43-57 ; S. N. Hidelgo, 'Cloning or Serial Reproduction of Human Beings, a Twenty-First Century Alternative? ' Law and Human Genome Review 1996,39.

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The timidity of Article 13 of the Convention as to the most crucial issue of the risk - or indeed the threat - of creating identical human beings provoked misgivings and, upon the instigation of the European Parliamentary Assembly, the Steering Committee on Human Rights of the Council of Europe proceeded to a further examination of the issue. Just a few months after the Convention was signed, it formulated an Additional Protocol on the Prohibition of Human Cloning , which was signed in Paris in 1998 by 24 states and is already ratified by five member states of the Council of Europe , having come into force on 1 March 2001.37 This First Additional Protocol to the 1997 Convention prohibits any abuses of tests applicable to humans and seeking to create a human being genetically identical to another human being, whether living or dead. "Genetically identical" means "beings sharing the same nuclear gene set" .38 The Protocol straightforwardly bans and declares ethically unacceptable the cloning of human beings. As the Honourable Judge Jean-Louis Baudouin has put it in a working paper presented in Bratislava in June 1999,39 the prohibition of the cloning of human beings is a step further towards the recognition of a new bioright, that is the right to unicity for every individual in the world. The Protocol does not prohibit the cloning of cells and tissues as a technique nor the use of supernumerary embryonic cells in cloning technique . It aims at preserving the random character of naturally occurring genetic recombination.'?

37

38

39

40

See Council of Europe , Steering Committee on Bioethics (CDBI), The Cloning Protocol, The Process of its Preparation and Adoption, CDBIIINF (97) 8. St. Winter, 'The Cornerstones for a Prohibition of Cloning Human Beings laid down in the European Convention on Human Rights and Biomedicine', European Journal ofHealth Law 1997, pp. 189-193 .

J. L. Baudouin, 'La recherche sur l 'embryon ' in La Convention Europeenne sur la medecine et les droits de l'homme: vers une nouvelle generation des droits de l'homme, Serninaire de Bratislava, Report, 1999, I I. European Treaty Series, No 168. Explanatory Report, paras 1-8.

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IV. UNESCO'S ACTION: THE 1997 UNIVERSAL DECLARATION ON THE PROTECTION OF THE HUMAN GENOME AND THE INTERNATIONAL BIOETHICS COMMITTEE Early in the 1990s UNESCO established several groups of experts aiming at assessing the impact oftechnology and science on the attitudes of the scientific community. As the input of information was growing rapidly, the problem of the ethical dimensions of the new possibilities open to medical care and research was felt as an urgent and compelling need. In 1993 Federico Mayor, the then Director General of UNESCO, established to this effect an independent multidisciplinary International Bioethics Committee, composed of 50 personalities representing all cultural and geographical regions of the world." The Committee was assisted by a very active Legal Committee. After examining a number of questions relevant to bioethics and biotechnology, the Committee decided, as a first step, to focus its activities on the otherwise equally uncertain field of the human genome ." and to elaborate an international instrument combining bioethics with human rights. The exercise was extremely difficult: both because the discipline of bioethics is new and the exact position of the scientific community and of the society on the issues at stake was not clearly defined during the seven years of work by the International Committee. There followed some futile discussions on the feasibility of a treaty," but it finally appeared that the elaboration of a treaty was not possible as an international treaty of a universal character should embody already accepted or acceptable principles and rules and the international community was not ready to enter into such an exercise. There followed a discussion on a proposal to have a recommendation or a declaration of UNESCO "which would be legally binding";" but such a possibility is not provided for by the Statutes of the Organization and it was also ruled out. Thus it was decided that the International Committee would elaborate a soft instrument serving as guideline of a general character but focusing

41

42 43

44

F. Mayor, 'Bioethique et droits de l'hornme' , in Scritti in Onore di Guido Gerin (Milano 1996), 283 et seq.

Cf. L. Kass, J. Wilson, The Ethics of Human Cloning (Washington, D.C., 1998). Genese de la Declaration universelle sur le genome humain et les droits de l 'homme, UNESCO 1999,28-49 et seq. Ibid.

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solely on the protection of the human genome." After nine substantial modifications of the text, modifications showing how difficult it has been for experts of different disciplines (biologists, medical doctors, lawyers, philosophers, theologians) from all over the world to find some common language, the draft has been put before the governmental representatives and was eventually adopted by the General Conference of UNESCO on 11 November 1997.46 Here again one has to underline the dynamism and competence of UNESCO's Division of Human Sciences, Philosophy and the Ethics of Science and Technology. A very small group of international civil servants, under the inspiring direction of Mr G. Kutukdjian and Ms S. Colombo, is carrying out with competence and devotion the background work for the two newly established international bodies, namely the International Bioethics Committee (IBC)47 and the Inter-governmental Bioethics Committee (which operates as a representative of Member States of the Organization); the Secretariat organizes in every detail and in many parts of the world the works, the actual participation of other international experts and the presentation of the stateof-the-art and ensures the follow-up of the decisions of these Committees. The 1997 UNESCO instrument presents, among other things , two striking features. The first is that the Declaration bears the title of Universal Declaration, that is to say it purports to establish a direct link with the United Nations Universal Declaration on Human Rights 1948 of which some believe that it is an extension, but this relationship has no particular legal meaning. The meaning and the message are rather political, as this Universal Declaration on the Human Genome adopted in Paris by the member states of UNESCO was some months later endorsed by a Resolution of the General Assembly of the United Nations." The second characteristic of the Declaration is that, amid the euphoria caused in the meetings of the International Bioethics Committee by the idea that the genome is "a sort of

45

46

H. Gros Espiell, 'UNESCO'S Draft Declaration on the Human Genome and the Rights' , 1997 Law and Human Genome Review, 1997, 121-148. See G. B. Kutukdjian, The Universal Declaration on the Human Genome and Human Rights and Follow-up Action, UNESCO , IBC, Paris, 12 Apr. 1999; Ch. Byk, 'La declaration universelle sur le genome humain et les droits de l'homme', Journal du droit international, 1998,675-695; G. Filibeck, 'La Declaration sur le genome humain' , L'Osservatore Romano, 6 January 1998.

47

See the remarks by Chairman R. Ida, UNESCO, IBC Proceeding s 1999, vol. I, 77-83.

48

United Nations, General Assembly, Resolution AIRES/53/152 (9 Dec. 1998).

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commons", some participants proposed and it was quickly agreed that the Human Genome should be declared a Common Heritage of Humanity." As we all know ever since the 1970s, the concept of common heritage has been used in the United Nations family in order to underline the significance of some spaces, monuments and sites of great importance for human civilization and the world community in general. It was extended by treaty to outer space and to the areas of the sea-bed beyond national jurisdiction. The Common Heritage of Mankind (or of Humankind, or of Humanity) in that sense involves some specific characteristics : a) so far as spaces beyond the national jurisdiction are concerned, they are usus comunis res and cannot be appropriated by a single State or groups of States, their exploration and exploitation shall be submitted to specific rules and shall always take place for the benefit of mankind : some of them are also exclusively reserved to peaceful utilization; b) as for the monuments and sites, UNESCO is competent by treaty law to legislate for their protection . But the real protection of these monuments and sites is primarily, if not exclusively, the responsibility of the State in whose territory they are situated and the international community has rather the task of providing assistance and counsel to the States concerned. Until now (and maybe with the except ion ofthe sea-bed beyond the national jurisdiction of States), no significant steps have been taken by the international community for a further clarification of the role of international organs in situations where an object is elevated to the rank of common heritage of humankind . Could we speak of obligation s erga omnes for the States involved, other actors and the international community at large? As already mentioned, within the International Bioethics Committee the reaction to the proposal for granting the status of common heritage of humankind to the human genome has been generally enthusiastic. But when the draft Declaration was forwarded to the representatives of governments, the idea was toned down by the introduction of the word "symbolic" .50 Hence, article 1 of the Universal Declaration stresses that the human genome "in a symbolic sense is the

49

50

See M. Bedjaoui, Address to the IBC, Proceedings 1995, vol. 1.114 et seq; idem., 'Le genome humain patrimoine commun de l'humanite ou la genetique de la peur a I' esperance', in Federico Mayor Amicorum Liber, UNESCO, ParisfBruxelles 1995, vol. II, 905 et seq.; B.M. Knoppers, Le genome humain: patrimoine commun de l 'Humanite? Montreal/Quebec 1999,41 ; H. Gros Espiell, 'The Common Heritage of Humanity and the Human Genome ' , Law and Human Genome Review 1995,89-101. On the four different expressions proposed in this respect during the negotiation see supra note 43, at 122 et seq.

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common heritage of humanity". If one tries to assess the real meaning of this sentence, one will find that gradually the concept retains only its symbolic sense as further efforts to stress its practical consequences are still under consideration. During the years of preparation of the Declaration by geneticists, physicists, medical doctors, philosophers, theologians and lawyers, the draft was heavily but tacitly influenced by the work of another international body of regional character, the Council of Europe 's Steering Committee on Bioethics . Modifications that the latter received from experts in Strasbourg were subsequently examined in one way or another and eventually introduced with a different or a similar language into UNESCO's draft. This is particularly true for norms on the informed consent of the individual. The same is also true for the Declaration's provisions on scientific research and for the reparation of damages caused by intervention affecting the human genome. But a remarkable difference between the Universal Declaration and the Convention is that the Universal Declaration invokes the human genome in a positive sense and does not contain only prohibitions aiming at its protection . The fact that one international organization brings an input to the work of another organization is a healthy process. For the common benefit, not only inspiration but also closer collaboration between international organizations should be encouraged. The Universal Declaration is divided into seven brief Chapters , dealing respectively with human dignity and the genome (Articles 1-4), the rights of persons concerned (Articles 5-9), research on the human genome (articles 10-12), conditions for the exercise of scientific activity (articles 13-16), solidarity and international cooperation (articles 17-19), promotion of the principles set out by the Declaration through research and education (articles 20-21) and, finally, implementation of the Declaration through education, training and information (articles 22-25) . Chapter A of the Declaration elaborates on the idea of Human Dignity (Articles 1-3). It declares the unicity and diversity of the members of the human family, the individuality of each human being while underlying the evolutive character of the human genome; it condemns genetic determinism and eugenism . It also confirms non-discrimination as a fundamental principle, thus adding the genetic element to the general concept of non-discrimination that appears in a series of universally applicable instruments on human rights. Article 4 has been introduced at a later stage; it has not the declaratory and panegyric character of the preceding first three articles, and it declares that the human genome "in its natural state" shall not give rise to financial gains. Compared to the corresponding article of the 1997 European Convention on Biomedicine, this provision is determining the scope of the

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economic exploitation of the human genome "in its natural aspect" without further explanation . As for the rights of the persons concerned by the Declaration the text presents two main aspects: firstly, it addresses the question of the conditions under which research, diagnosis and treatment "affecting an individual's genome" can be undertaken under general conditions set by the Declaration and further by national legislation; and, secondly, it deals with the prior, free and informed consent of the subject. If there is something to add here, it is that, in the field of research, the relevant protocols among researchers shall be submitted for prior review in accordance with applicable national and international research standards and guidelines (Article 5, d). Article 5 announces in first place that research, treatment and diagnosis affecting an individual's genome shall be undertaken after assessment of potential risks and benefits and it further refers once more to national legislation. The question of free and informed consent is dealt with in a shorthand provision (article 5, b), where again there is reference to national law. There is a specific provision for persons who do not have the possibility to express freely his or her consent: the authorization shall be guided by the person's best interest, a formulation meeting the language of the Convention on the Rights of the Child (1989). The same article requires that research protocols shall be submitted to prior review by a competent body and then as far as research on persons who do not have the capacity to consent there is again reference to national law; it also gives some idea of what the national law should have as a bottom-line (Article 5, e). Articles 6, 7, 8 and 9 entail the prohibition of discrimination based on genetic characteristics (Article 6); genetic data stored or processed for the purposes of research must be held confidential, again according to the conditions set by law. As in the 1997 European Convention, Article 8 contains a provision for reparation in case of damage sustained as a direct and determining result of an intervention affecting the human genome of a specific person . Article 9 stresses that limitations to the principles of consent and confidentiality may only be prescribed by law and for compelling reasons and adds "within the bounds of public international law and the international law of human rights" [sic] . The issue of Research on the Human Genome goes further into the substance of research and research application in the fields of biology, genetics and medicine. 51

51

See 1. Kriari-Catranis, 'Embryo Research and Human Rights . An Overview of Developments in Europe', European Journal ofHealth Law 1997,43-67.

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The Declaration refers back to the fundamental human right to freedom both of individuals and groups of people (Article 10). It aims at eradicating practices which are contrary to human dignity, spelling out the specific situation of reproductive cloning of human beings which shall not be permitted . Article II invites States and competent international organizations to cooperate in identifying practices, which are contrary to this general principle of the prohibition of cloning for reproductive purposes. This role is to be undertaken by the International Committee on Bioethics . Article 12 touches very slightly in one sentence upon the extremely difficult problem of patenting of the human genome. Under A, it speaks of the necessity for all to benefit from the advances of biology, genetics and medicine concerning the human genome and, under B, it invokes the freedom of research as a part of the freedom of thought and repeats that the applications of research on the human genome shall seek to offer relief from suffering and improve the health of individuals and humankind as a whole, but this does not seem to have a direct link with the preceding paragraph. It gives an idea on how the drafters came to terms with the protection of the results of scientific invention. As for the Conditions for the Exercise of Scientific Activity, Chapter D (articles 13-16) delineates the responsibilities of researchers and public and private science policy-makers by referring to the ethical and social implications of the research involving the human genome, and calls for meticulousness, caution, intellectual honesty and integrity in general. It also invites States to take appropriate measures to foster the intellectual and material conditions for the freedom of research , to provide the framework for the free exercise of research and it finally calls for the establishment of independent multi-disciplinary and pluralist ethics committees. Chapter E appeals to solidarity and international cooperation . Article 17 encourages states to respect and promote the practice of solidarity towards individuals who are in a vulnerable situation (families and population groups) and Article 18 invites international cooperation for the dissemination of the results of scientific knowledge on the human genome. At the end of Article 18 there is also mention of the relations between industrialised and developing countries and Article 19 deals further with this question by providing some guidance for the strengthening and the promotion of relations between north and south through existing international organizations. It remains to be seen how these provisions will be echoed in practice . The "appropriate measures" (education and other means) necessary for the promotion of the principles of the Declaration and the necessity of facilitating open international discussion on the problems raising from the developments in science and technology are addressed by Chapters E and F. The Declaration entrusts the

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International Bioethics Committee (an expert body now composed of 36 independent experts representing all the geographical regions of the world) with the mission of studying, following Up52 and giving fresh ideas to governments and to UNESCO and other international organizations-' for the implementation of the Declaration and the furthering of international attention for the protection of the human genome. Although at the very beginning of the drafting of the Declaration the idea was "to have something strong", the text, universal as it might be, bears the rather traditional language of Resolutions adopted by international organizations; for example, in the heart of the regulatory norms (Articles 14 to 23) the text begins with the words "States should" . There is also heavy and sometimes free reference to national legislation. This is not necessarily a weakness for the text; it reflects the maximum obtained by the negotiation.

V. FINAL REMARKS Until very recently the link between medicine , biology, scientific research on the one hand and human rights on the other hand, was made by reference to the existing general international instruments on human rights , such as the 1948 Universal Declaration on Human Rights, the 1966 Covenants on Civil and Political Rights, and on Economic Social and Cultural Rights, the Conventions for the Elimination of all Forms of Racial Discrimination (1966), those on Non-discrimination against Women (1979) , against Torture (1986), on the Rights of the Child (1989), etc. On the regional level, the 1950 European Convention on Human Rights and the 1979 American Convention were applied to this end by their control bodies. Reference was also made to the African Charter on Human and Peoples Rights (1981) . But since the potential for catastrophic interventions into the human genome became apparent, all international organizations and scientific bodies rushed into declarations requesting publication of the human genome sequencing and taking a firm stand against the cloning of human beings . Since 1997, along with the existing general legal weaponry, the international community has been enriched by three new and specific international instruments in the field of life-sciences. Each of the three texts has its own qualities and legal

52

See H. Oros Espiell, 'Follow-up Mechanism', UNESCO, [BC Proceedings 1966, vol. 1.

53

O. Kutukdjian , supra note 46, at p. 8 et seq.

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force. It has been prepared within a different political environment, and in all cases its drafters had to take into consideration conflicting positions of governments; and governments had to consider conflicting positions nationally. Nevertheless, these instruments have succeeded in regulating some important aspects of the protection ofthe human genome and in avoiding contradictions. In some instances (at least for the States concerned) they complete each other; in any case they are bound to live together in the international arena. Another important achievement for the international community is that the new texts established a very clear monitoring role for international expert bodies>': the European Convention on Bioethics is supported by the Steering Committee on Bioethics of the Council of Europe" and UNESCO's Universal Declaration is supported by the International Bioethics Committee ." In the unknown direction of the voyage in which humanity is already embarked, we all need competent guidance . As far as the human genome is concerned, notwithstanding the new provisions set forth by treaty and declaration, two extremely important issues still remain unsettled: that of the innumerable possibilities of research and other interventions on the human embryo (and in adult stem cells), and that of patenting of parts of the human genome . Antonio Cassese has devoted a distinguished career to the respect , the strengthening and the internationalization of human rights . It is appropriate to dedicate these pages on a challenging new chapter of human rights to the learned scholar and judge in admiration and friendship.

54

55

56

M. Gavouneli, 'Binding Character and Implementation Control of International Instruments on Biomedicine' , in L.-A . Sicilianos, M. Gavouneli (eds .), Scientific and Technological Developments and Human Rights (Athens 2(01), 197-211. By a Recommendation 1512 (2002)1 adopted on 25 April 2001 the Parliamentary Assembly of the Council of Europe invites the Committee of Ministers to take the necessary measures . See also Council of Europe Parliamentary Assembly, The Protection ofthe Human Genome, Doc. 8901, 6 Dec . 2000 and Doc. 9002 ,19 Mar. 2001. UNESCO , IBC , Follow-up of the Implementation of the Universal Declaration, Doc . CIPI BIO/CONE 50211 Annex (Rev.) 1999.

38

INTERPRETING THE STATUTES OF THE AD HOC TRIBUNALS William A. Schabas

The Statutes of the ad hoc Tribunals for the Former Yugoslavia and Rwanda I give no real indication as to the principles of interpretation judges are to apply in their application. As instruments of international law derived from the Charter of the United Nations, it may seem logical to apply the rules for interpreting international treaties, which have been codified in the Vienna Convention on the Law of Treaties.' Indeed, there has been more than occasional reference to those provisions in the case law of the ICTY. The Vienna Convention norms point the way to a contextual and purposive approach. But as an instrument for the prosecution of criminal offences , a case can also be made for a rule of strict construction, relying in large part on general principles of law derived from national systems . Here too, there is some support in decisions of the Tribunal. Arguably, the former approach will favour the case of the prosecution, the latter that of the defence . Take, for example, the 2 October 1995 decision on jurisdiction in the Tadic case.' The majority ruling, signed by President Antonio Cassese, takes several bold steps in the interpretation of the Statute, of which the most significant is probably the reconciling of Articles 2 (grave breaches of the Geneva Conventions) and 3 (serious violations of the laws or customs of war) into a holistic code of war

1

Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. SIRES/ 827, annex ; Statute of the International Criminal Tribunal for Rwanda , UN Doc. SIRES/955 , annex.

2

Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331, arts. 31-33 .

3

Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995.

LiC, Vohrah et al. (eds.), Man 's Inhumanity to Man , 847-888 ©2003 Kluwer Law International. Printed in the Netherlands.

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crimes. It bears recalling that the debate in the radii decision was quite clearly formulated in terms of approaches to interpretation, with the "literal" approach being set alongside "teleological" as well as "logical and systematic" interpretation in support of the Appeals Chamber's conclusions. The majority left no room at all for strict construction, which would have confined the scope of Article 3 to Hague law in international armed conflicts. Thus, a choice of rules of interpretation lies very much at the heart of one of the Tribunals' defining judgments. When judicial interpretation is particularly adventuresome, it is attacked as lawmaking. Indeed, Judge Li, in his separate opinion in radii, called the majority approach "an unwarranted assumption of legislative power". 4 The judge, it is said, should only apply the law, and is not entitled to change it; if there are lacunae, these are for the legislator to fill. Yet in establishing two international tribunals on the basis of a laconic statute, a brief preparatory report and a few pages of debates, the Security Council left the judges with little choice but to innovate. The fact is that within the general structure of the statutes, they have had a free hand to mould international criminal law. Judge Abi-Saab, in his separate opinion in radii, saw this as a "unique opportunity to assume the responsibility" for the rationalisation of international criminal law, which had developed in an ad hoc, piecemeal and somewhat chaotic fashion since the Second World War.s His colleague, President Antonio Cassese, clearly shared this philosophy, using his prestigious position and academic credibility to transform the ICTY Statute from an incomplete shopping list of ancient treaties into a coherent and progressive codification. Rules of interpretation provided him with many of the tools and the authoritative arguments

necessary to carry out this task. This essay will examine the various approaches to interpretation, both explicit and implicit, taken by the two ad hoc Tribunals. First, it considers the rationale for the application of the principles contained in the Vienna Convention on the Law of Treaties. Then, the implementation of those rules as well as others in the jurisprudence of the two ad hoc Tribunals is examined. The very obvious neglect of an important rule of interpretation, subsequently codified in the Rome Statute of the International Criminal Court, that of strict construction of criminal law," is also

4

Ibid., Separate Opinion of Judge Li, para. 13.

5

Ibid., Separate Opinion of Judge Abi-Saab, p. 2.

6

Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, art. 22(1). See also: Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalizeddrafttext of the Elements of Crimes, UNDoc. PCNICCI2000/lNF/3/Add.2, article 7, introduction, para. I.

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considered. Often the ad hoc Tribunals rely on interpretations of terms or provisions developed by other jurisdictions. Reliance has been placed in this respect upon the jurisprudence of the International Military Tribunal, the various postSecond World War military courts, the International Court of Justice , the European Court of Human Rights , the Human Rights Committee, and the courts of Israel, the United States, Canada, Italy, Germany, France, the United Kingdom, the Netherlands and elsewhere . This is a large subject in itself, and really rather separate from that of rules of interpretation; it is best left for another day.

I. APPLICATION OF THE VIENNA CONVENTION ON THE LAW OF TREATIES A preliminary issue in this discussion is the applicability of the Vienna Convention rules. Section III of the Vienna Convention on the Law of Treaties contains three provisions respecting the interpretation of international conventions . Article 31 states the "general rule of interpretation", which is that "[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" . Article 31 (2) proceeds to define what "context" comprises : the text itself and agreements or instruments relating to conclusion of the treaty. The interpreter is also to consider subsequent agreements or practice involving the parties, and any relevant rules of international law applicable to their relations . Article 32 contemplates "supplementary means of interpretation", principally the travaux preparatoires and the circumstances of the treaty's conclusion, but such supplementary means are only admitted when an analysis pursuant to article 31 leaves the meaning ambiguous or obscure, or leads to a manifestly absurd or unreasonable result. Article 33 concerns treaties authenticated in two or more languages, and favours "the meaning which best reconciles the texts, having regard to the object and purpose of the treaty" . The Vienna Convention provisions dealing with interpretation are generally considered to codify principles of customary international law.? For that reason,

7

Codification of rules of interpretation recognised at customary international law ought not to be confused with the interpretation of customary international law itself. In Prosecutor v. Anto Furundiija, Case No. IT-95-I7/1, Judgement, 10 Dec. 1998, para. 253, Trial Chamber II spoke of both logical and teleological interpretation of customary law norms.

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they presumably apply to the Charter of the United Nations, although it was an instrument adopted well before the Vienna Convention and, moreover, it applies to many States that have yet to ratify the Vienna Convention. Nothing in the Convention suggests it should apply to non-treaty instruments, such as the statutes, which are annexes to resolutions of the Security Council. Moreover, some of the provi sions clearly deal with relations between and behaviour of States parties , and for this reason cannot be relevant to the construction of the statutes. Very early in the evolving jurisprudence of the ad hoc Tribunals, two judges sitting in the Trial Chambers, McDonald and Vohrah, recognised that while the Statute of the ICTY was not technically a treaty, nevertheless "the rules of treaty interpretation contained in the Vienna Convention on the Law of Treaties appear relevant"," In an interlocutory decision in Prosecutor v. Bagosora, the Appeals Chamber declared that article 31 of the Vienna Convention applied mutatis mutandis to the Statute of the International Criminal Tribunal for Rwanda." In the CelebiCi case, Trial Chamber II of the ICTY stated: "It is well settled that an interpretation of the Articl es of the Statute and provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties,"!" In other important deci sions concerning interpretation of the provisions of the statutes, judges have applied the interpretative scheme set out in the Vienna Convention but without citing it. In the Tadic Jurisdiction Decision, for example, there was no explicit reference to the Vienna Convention. But in substance, the majority of the Appeals Chamber applied the principles set out in articles 31 and 32 of that instrument.'! In the Tadic appeal on the merits , a differently constituted Appeals Chamber referred to an advisory opinion of the International Court of Justice rather than to the Vienna Convention as authority for what amounts to a jurisprudential gloss of article 31 (1): "The first duty of a tribunal which is called upon to interpret

8

9

Prosecutor v. Dusko Tadic, supra note 3, para . 18. Also , Prosecutor v. Draien Erdemovic, Case No. IT-96-22-A , Judgement, 7 Oct. 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 3. Prosecutor v. Bagosora et al., Case No. ICTR 98-37-A, Decision on the Admi ssibility of the Prosecutor's Appeal from the Decision of a Continning Judg e Dismissing an Indictment against Theoneste Bagosora and 28 Others, 8 June 1998, paras . 28-29.

10

Prosecutor v. Delalic et al., Case No. 1T-96-21, Judgement, 16 Nov. 1998, para. 116 I.

11

Prosecutor v. Dusko Tadic, supra note 3, paras 71-142 .

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and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur".' ? Explanations of the rationale for referen ce to the Vienna Convention have been rare. In one decision, Judges McDonald and Vohrah, after noting that the Trial Chambers of both Tribunal s, as well as the Appeals Chamber, have constantly resorted to the Vienna Convention for the purpose of interpreting the Statutes, described the Statutes as sui generis international legal instruments that resemble treaties. Because the Vienna Convention codifies logical and practical norms that are consistent with domestic law,continued the two members of the Appeals Chamber, customary international law dictates the application of its principles to international instruments that are not treaties." In his dissenting views in the same case, Judge Shahabuddeen took a comparable approach, determining that the Tribunal was entitled to refer to general principles of interpretation pursuant to the Vienna Convention on the Law of Treaties because these are norms generally accepted in domestic jurisdictions." The subject -matter jurisdiction provisions of the Statutes are drawn more or less directly from treaty law, as explained in the Secretary-General's Report," and here resort to the Vienna Convention principles would seem to have a different and more secure basis. In Prosecutor v . Jelisic, Trial Chamber I of the ICTY interpreted the scope of the definition of genocide in article 4 of the Statute, which is derived without significant modification from articles II and III of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide . 16 The Trial Chamber said it would interpret the provision "in accordance with the general

12

13

14

15

16

Prosecutor v. Dusko Tadic, Case No.IT-94-I-A, Judgement, 15 July 1999, para. 282. Kanyabashi v. Prosecutor, Case No. ICTR-96-15-A, Joint and Separate Opinion of Judge McDonald and Vohrah, 3 June 1999, para. 15. See also ibid., Dissenting Opinion of Judge Shahabuddeen, p. 21, Joint Separate and Concurring Opinion of Judge Wang and Judge NietoNavia, paras 10-13; Nsengiyum va v. Prosecutor, Case No. lCTR-96-12-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999, para . 14. Kanyabashi v. Prosecutor, Case No.ICTR-96-15-A, Dissenting Opinion of Judge Shahabuddeen, pp. 21-22 . Also: Nsengiyumva v. Prosecuto r, Case No. lCTR-96-12-A, Dissenting Opinion of Judge Shahabuddeen, 3 June 1999. ' Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)', UN Doc. S/25704.

Convention for the Prevention and Punishment ofthe Crime ofGenocide, (1951) 78 UNTS 277.

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rules of interpretation of treaties set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties,"!" It must be said, therefore, that the basis for application of the Vienna Convention principles is somewhat unclear, aside from the special case of provisions in the statutes essentially borrowed from treaty law. To say that the Vienna Convention provisions form part of customary international law cannot be very helpful because they remain the customary international law applicable to treaties as such, and not necessarily to sui generis instruments like the Statutes. Can the judges be inferring that the Statutes, as well as their rules, being in some sense derivative legislation from an international treaty, namely the Charter of the United Nations, are therefore subject to the Vienna Convention regime? Alternatively , the meagre discussion of the rationale for resort to the Vienna Convention seems to indicate a penchant for general principle s of law. That is, the Vienna Convention provisions largely recapitulate rules applied in domestic legal system to the interpretation of domestic legal instruments. For this reason, they should be applicable to the Statutes of the ad hoc Tribunal s on the same basis as such legal norms as the admissibility of the defence s of duress and necessity and similar matters. But if the basis for applying the Vienna Convention rules is their affinity to general principles in national system s, then should not strict construction of penal statutes also be observed ?

II . STRICT CONSTRUCTION OF PENAL STAT UTES

The Vienna Convention makes no allowance for special rules to govern penal law statutes. Its terms were tailored to address the ensemble of treaties, both bilateral and multilateral, dealing with the entire range of issues contemplated by public international law. Indeed, it would seem to be precisely because of the absence of such a rule in the Vienna Convention that the drafters of the Rome Statute included, exceptionally, a requirement that the subject-matter j urisdiction of the International Criminal Court be subject to principles of strict construction." Strict construction of penal statutes is an approach drawn from various national legal systems, and it seems safe to describe it as a general principle of law, as this term is meant by article 38 of the Statute of the International Court of Justice. To

17

Prosecutor v. Goran Jelisic, Case No. IT-95-1O, Judgem ent, 14 Dec. 1999, para. 6 I.

18

Supra note 6, art. 22 (I ).

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the extent that the ad hoc Tribunals base their resort to the Vienna Convention norms on the fact that they in effect codify domestic rules rather than because they are the customary law applicable to international instruments other than treaties, it seems logical to include strict construction among the canons to be applied at The Hague and Arusha. But this is in fact the case in only a handful of rulings of the ad hoc Tribunals. Thus , the Appeals Chamber held that " . .. in applying these criteria, any doubt should be resolved in favour of the Defence in accordance with the principle in dubio pro reo". 19 In Prosecutor v. Kayishema, Trial Chamber II of the ICTR wrote: "The Trial Chamber agrees that if a doubt exists, for a matter of statutory interpretation, that doubt must be interpreted in favour of the accused .V" In Prosecutor v. Akayesu , Trial Chamber I of the ICTR said that "[ .. . J the general principles of law stipulate that, in criminal matters, the version favourable to the accused should be selected"." Later in the same judgment, it said: "Given the presumption of innocence of the accused , and pursuant to the general principles of criminal law, the Chamber holds that the version more favourable to the accused should be upheld

[...J." 22

Another way of looking at this issue - perhaps it would be better to speak of a closely related presumption - is to impose a rigorous mens rea requirement for offence s unless the contrary appears in the text. This, too, is an approach well rooted in the common law.23 Dealing with the mental element of superior responsibility, as set out in Article 6 (3) of the ICTR Statute, Trial Chamber I held that "it is certainly proper to ensure that there has been maliciou s intent, or, at least, ensure

19

20

21

Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, IS Oct. 1998, para. 73. See also Prosecutor v. Draien Erdemo vic, supra note 8, Separate and Dissenting Opinion of Judge Cassese, para . 49 . Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95- I , Judgement, 21 May 1999, para . 103. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4 , Judgement, 2 Sept. 1998, para. 319. See also Prosecutor v. Rutaganda , Case No. ICTR-96-3, Judgement, 6 Dec. 1999, para . 51; Prosecutor v. Prosecutor v. Alfred Musema , Case No. ICTR-96-13 , Judgem ent, 27 Jan . 2000, para. 155.

22

Prosecutor v. Akaye su, supra note 21, para . 501.

23

Woolmington v. D.P.P., [1935] A.C. 462.

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that negligence was so serious as to be tantamount to acquiescence or even malicious intent" .24 The only detailed discussion of the principle of strict construction of penal statutes is that of Trial Chamber II in the CelebiCi case: It is for the legislature and not the court or judge to define a crime and prescribe its punishment. It is the well-recognised paramount duty of the judicial interpreter, or judge, to read into the language of the legislature , honestly and faithfully, its plain and rational meaning and to promote its object. The rule of strict construction requires that the language of a particular provision shall be construed such that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. The accepted view is that if the legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which should naturally fall within the mischief intended to be prevented, the interpreter is not competent to extend them. A strict construction requires that no case shall fall within a penal statute which does not comprise all the elements which, whether morally material or not, are in fact made to constitute the offence as defined by the statute. It has always been the practice of courts not to fill omissions in legislation when this can be said to have been deliberate. It would seem, however, that where the omission was accidental , it is usual to supply the missing words to give the legislation the meaning intended . The paramount object in the construction of a criminal provision , or any other statute, is to ascertain the legislative intent. The rule of strict construction is not violated by giving the expression its full meaning or the alternative meaning which is more consonant with the legislative intent and best effectuates such intent. The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve , the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. This is why ambiguous criminal statutes are to be construed contra proferentemP

24

Prosecutor v. Akayesu, supra note 21, para . 217.

25

Prosecutor v. De/ali i et al., supra note 10, paras 408-413. On contra preferentum, see also: Prosecutorv. Dusko Tadic, Case No .IT-94-1 , Opin ion and Judgment, 7 May 1997, para . 713.

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But even in domestic legal syste ms, the ancient principle of strict construction of penal statutes has been attenuated rather considerabl y in recent years." Under the common law, it was very much a technique to avoid capital punishment for trivial offences, a principle infavorem vitae. In this context, MaxwelI mentions statutes whereby capital puni shment could be imposed for chopping down a cherry tree in an orchard or being seen in the presence of Gypsies for a period of one month." National practice suggests, then, that it is an uncertain and irregular rule of statutory construction. In other words, article 20 (2) of the Rome Statute, which codifies strict construction for the definitions of crimes, is an exception to rather than a confirmation of any general principle of law. The only occasional references to such a rule in the jurisprudence of the ad hoc Tribunal s confirm this observation.

III . LITERAL INTERPRETATION

The Vienna Convention makes no referenc e to "literal interpretation", although in article 3 1 (I ) it speaks of the "o rdinary meaning to be given to the terms of the treaty". The two concepts seem to be closely related. In an ICTR case, the Appeals Chamber noted article 3 1's preference for the "o rdinary meaning", saying: "In the instant case, the Appeal s Chamber finds that it cannot abandon the ordinary meaning of the terms of those provisions. Rather, it may only interpret them in light of such an ordinary meaning."28In the Tadic Jurisdiction Decision, the Appeals Chamber - without reference to the Vienna Convention - discussed what it referred to as "literal interpretation". The Appeals Chamber was considerin g, of course, the scope of Articles 2 and 3 of the ICTY Statute. It observed that while there were serious arguments to support restrict ion of those two provisions to international armed conflicts only, "[a] literal reading of this provision standing alone may lead one to believe that it applies to both kinds of conflict",29and this conclusion was confirmed by other interpretative techniqu es.

26

27

Bruce Broomhall, 'Article 22' , in Otto Triffterer, ed., Comm entary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), pp. 447-462, at p. 456-457. For example, see the Supreme Court of Canada: R. v. Hasselwander , (1993)2 S.C.R. 398. Maxw ell on the Interpretation of Statutes (12th ed., London: Sweet & Maxwell, (969), p. 238. See also: Livingston Hall, 'S trict or Liberal Construction of Penal Statutes' , ( 1935) 48 Harvard Law Review 748.

28

Prosecutor v. Bagosora et ai., sup ra note 9, paras 28-29 (italics in the original).

29

Prosecutor v. Dusko Tadic, supra note 3, paras 71- 142.

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In Celebici , Trial Chamber II considered the scope of "serious injury", a grave breach of the Geneva Conventions enumerated in Article 2 (c) of the ICTY Statute. In support of the view that this means more than mere physical suffering, and includes moral suffering, the Trial Chamber relied on the "plain , ordinary meaning of the words' t.v Similarly, for the scope of the word "serious" , it referred to the Oxford English Dictionary definition of the word because "in the absence of other interpretive material, the Trial Chamber must look to the plain ordinary meaning of the word"." In Prosecutor v. Alekso vski, the majority of Trial Chamber I of the ICTY considered whether Bosnian Muslims detained by Bosnian Croats were "protected persons" as the term is meant by article 4 of Geneva Convention IV.Judges Vohrah and Nieto-Navia did not refer explicitly to any particular rules of interpretation. They simply applied the ordinary meaning , without looking further for any hidden legislative intent that might be used to expand the meaning of "protected person"." In the same decision, dissenting Judge Rodrigues, citing "literal interpretation"," took the view that Article 2 of the Statute enjoyed an autonomy with respect to the Geneva Conventions, and he in practice divorced its interpretation from that of the treaty law. And in another example of literal interpretation, Trial Chamber I concluded that Article 7 (3) of the ICTY Statute applied to civilian as well as military commanders becau se it used the term "superior" without further qualification." In Prosecutor v. Jelisic , Trial Chamber I said: "It follows from the letter and the spirit of Article 5 that the term 'civilian population' must be interpreted broadly."35 Under the Vienna Convention, the "ordinary meaning" of terms, however, is to be determined "in their context and in the light of its object and purpose". Judges

30

Prosecutor v. Delalic et al., sup ra note 10, para . 509 .

31

Ibid., para . 510.

32

33

Prosecutor v. Zlatko Aleks ovski , Case No. IT-95-14/1 , Judgement, 25 June 1999, Joint Opinion of the Majority, Judge Vohrah and Judge Nieto-Navia, on the Applicability of Article 2 of the Statute pursuant to Paragraph 46 of the Judgment, para . 35. Ibid., Opinion dissidente dujuge Rodrigues sur la question de l'applicabilite de l'article 2 du Statut , para . 42.

34

Ibid., Judgement, para . 75.

35

Prosecutor v. Goran Jelisic, supra note 17, para . 54 .

Interpreting the Statutes of the ad hoc Tribunals

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Wang and Nieto-Navia found in article 31 (I) of the Vienna Convention "the textual and the teleological approach of interpretation"." Accordingly, A word or provision is supposed to reflect the final, authentic intention of the parties. As a general rule, the interpreter cannot abandon the plain textual meaning of a word or phrase, although the object and purpose of a treaty and the context of its terms are, of course, aids to its interpretation [.. .] The general rule of interpretation of treaties thus requires that the interpreters must give words, which are clear, plain and unambiguous their normal meaning, disregarding the literal meaning only in very exceptional circumstances.'? In the same case, Judges McDonald and Vohrah stated: "Relying on Article 3 I (I) of the Vienna Convention, we find that a need for flexibility alone cannot justify departure from the plain language of the Rules .'?" Such "literal interpretation" should not be confused with the "literal rule": interpretatio cessat in claris. r' The Trial Chamber in the Celebici case, wrote: In every legal system , whether common law or civil law, where the meaning of the words in a statute is clearly defined, the obligation of the judge is to give the words their clearly defined meaning and apply them strictly. This is the literal rule of interpretation. If only one construction is possible , to which the clear, plain or unambiguous word is unequivocally susceptible, the word must be so construed .v The "literal rule" is therefore not a component of teleological and contextual interpretation , but rather an obstacle to it, by in effect foreclosing other techniques

36

37

38

39

40

Prosecutor v. Kanyabashi, supra note 13, Joint Separate and Concurring Opinion of Judge Wang and Judge Nieto-Navia, para. 13; also para . 28. See also: Nsengiyum va v. Prosecutor; supra note 13, Joint Separate and Concurring Opinion of Judge Wang and Judge NietoNavia. Ibid. Kanyaba shi v. Prosecutor, supra note 13, para. 28. See also: Nsengiyumva v. Prosecuto r; supra note 13, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, para . 27. For an expression of this in common law jurisprudence, see Tindal J. in the Sussex Peerage case, (1844) II Cl. & Fin. 85, 143, 8 E.R. 1034, 1057: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense . The words themselves alone do, in such case, best declare the intention of the lawgiver." Prosecutor v. Delalic et al., supra note 10, para . 16 I.

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when the words themselves appear unequivocal. In the conclusions to its discussion of rules of interpretation, the Trial Chamber seemed to indicate a place for the literal rule in ICTY jurisprudence," but this is an isolated view.

IV. CONTEXTUAL INTERPRETATION Article 31 of the Vienna Convention says that the ordinary meaning of the terms of a treaty is to be determined in their context. Contextual interpretation, at least in the common law, is also sometimes called the "logical method" or the "golden rule" of statutory construction, expressed in the maxim nemo enim aliquam partem recte intelligere potest antequam tatum iterum atque iterum perlegerit. Lord Coke stated, more than four hundred years ago, that "l...] the office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself"." Trial Chamber II of the ICTY seemed to be thinking along these lines when it cited criminal law Professor George Fletcher: "The method of analysing ordinary usage invites us to consider what these terms mean as they are used, not what they 'mean' when wrenched out of context and defined for the purposes of legal analysis.v" The Appeals Chamber, in the Tadic Jurisdiction Decision , referred to "Logical And Systematic Interpretation Of The Statute" as an appropriate method of con struction. 44 In Tadic on the merits, the Appeals Chamber relied on a "logical construction" of Article 5 of the Statute in rejecting suggestions that there wa s a general motive requirement for crimes against humanity." Note that the Vienna Convention, in article 31 (2), says that "context" includes the preamble and the annexes to a treaty, as well as subsequent instruments made in connection with the conclusion of the treaty. Much of this is irrelevant for purposes of interpreting the Statutes and the Rules . Of course, each Statute contains a preamble which is surely helpful for the purposes of interpretation, although the two preambles do not appear to have interested the judges very much." Similarly,

41 42

43

44

Ibid., para . 170. Also : para . 1161. Lincoln College case. (1595) 3 Co. Rep. 58b , 59b. 76 E.R. 764, 767 . Prosecutor v. Delalic et al., sup ra note 10, para . 438 (quoting Georg e Fletcher, Reth inking Criminal Law (1978) , p. 265) . Prosecuto r v. Dusko Tadic, supra note 3, subhead above para . 79.

45

Prosecutor v. Dusko Tadic, supra note 12, para . 284.

46

For a rare example: Prosecutor v. Dusko Tadic, supra note 3, para. 90.

Interpreting the Statutes of the ad hoc Tribunals

859

the Security Council resolutions themselves that in a sense crown the Statutes are also germane for interpretative purposes, but again, the two Tribunals do not appear to have accorded them any great importance in their rulings. Resolution 827, creating the ICTY, is cited essentially to confirm that the Security Council "endorsed" the report of the Secretary-General.'? Some of the judges of the Tribunals have used the concept of "context" somewhat differently than it is contemplated in the Vienna Convention. Judges McDonald and Vohrah explained that "the context of the Statute is indicated by the Report of the Secretary-General of 3 May 1993 (UN Doc. S/25704), which contained a draft statute adopted by the Security Council without amendment"." Here they are talking about the more general context of the Statute or of its adoption, and not the context of the terms of the Statute, which is what article 31 of the Vienna Convention intend s. In Celebici, Trial Chamber IT referred to an English case as authority for "the meaning of context in the construction of statutes". It said that context consisted of five elements: other enacting provisions of the same Statute; its preamble ; the existing state of the law; other statutes in pari materia; the mischief which the statute was intended to remedy." The common law view of "context" is clearly broader than that of the Vienna Convention . The Appeals Chamber has since dismissed reliance upon the Security Council debates at the time of adoption of the Statute for the precise reason that they cannot not be considered "context" within the meaning of article 31 (I), in that they were mere statements and not agreements of the parties.v although it conceded that they might be admissible as travaux preparatoiresl' A related principle, described as "effective interpretation" (also known as the "effet utile" rule or ut res magis valeat quam pereat), favours a construction that gives genuine effect to a provision over one that does not. In this regard, Judge Abi-Saab, in his separate opinion in the Tadic Jurisdiction Decision, addressed

47

48

49

For example, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, Judgement, 3 Mar. 2000, para. 165. The Resolution reads: "Having considered the report of the Secretary-Gen eral (Sf 25704 and Add. I)" . Prosecut or v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Prosecutor 's Motion Requesting Protective Measures for Victims and Witnesses , 10 Aug. 1995, para. 18. Prosecutor v. Delal ic et al., supra note 10, para. 164. Citing Attorney General v. Prince Ernest Augustus ofHanover, [1957] A.C. 436 .

50

Prosecutor v. Dusko Tadic, supra note 12, para. 300.

51

Ibid. , para. 303.

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one of the more awkward aspects of the majority decision, its conclusion that Article 3 of the Statute encompassed all serious violations of international humanitarian law except grave breaches of the four Geneva Conventions (but not Protocol I), which are dealt with in Article 2. Judge Abi-Saab said it was necessary to give Article 2 an "autonomous field of application" pursuant to the effet utile principle.52 The Appeals Chamber, in the Blaskic Subpoena Decision, invoked the effectiveness principle in resolving differences between the English and French versions of Rule 54. 53 In Erdemovic, Trial Chamber I considered whether the reference to national law in Article 24 of the ICTY Statute (and, by ricochet, Rule 101 (B)(iii)) required, as a mandatory condition, reference to either Yugoslav statute law or case law. It rejected such a view in favour of a less stringent approach , on the basis that this interpretation had "a logic and a practical effect"." Similarly, according to the Appeals Chamber, "[I]t is an elementary rule of interpretation that one should not construe a provision or part of a provision as if it were superfluous and hence pointless : the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.t'" In Barayagwiza, the Appeals Chamber referred explicitly to "the principle of 'effective interpretation'" in construing the relationship between Rules 40 and 40 bis,» A common law formulation of systematic or logical construction is known as the "golden rule", which was cited in the CelebiCi case: " [w]here the use of a word or expression leads to absurdity or repugnance, both common law and civil law

52

53

54

55 56

Prosecutor v. Dusko Tadic , supra note 3, Separate Opinion of Judge Abi-Saab. Prosecutor v. Tihomir Blaski c, Case No. IT-95-14-ARI08 his, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,29 Oct. 1997, para. 21. Prosecutor v. Draien Erdemovic, Case No. IT-96-22, Sentencing Judgement, 29 Nov. 1996, para. 38. Prosecutor v. Dusko Tadic, supra note 12, para. 284 Prosecuto r v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision , 3 Nov. 1999, para. 46. Also, para. 110. But see the separate opinion of Judge Shahabuddeen, who claimed that the majority misapplied the concept of "effective interpretation", and saying the principle is a good servant but a bad master. The Appeals Chamber also applied the "useful effect rule" in Prosecutor v. Kordic and Cerkez, Case No . IT-95-14/2-AR73 .5, 'Decis ion on Appeal Regarding the Admis sion into Evidence of Seven Affidavits and One Formal Statement', 18 Sept. 2000, para. 9.

Interpreting the Statutes of the ad hoc Tribunals

861

courts will disregard the literal or grammatical rneaning't.>' There has been occasional reference to a variety of other canons of interpretation broadly associated with logical or systematic interpretation, many of them known by their Latin formulations: specialia derogant generalibusP expressio unius est exclusio alierius'" and a contrario/" reductio ad absurdum." noscitur a sociiss' ejusdem generisP

V. TELEOLOGICAL OR PURPOSIVE INTERPRETATION

Article 31 (l) of the Vienna Convention points towards teleological or purposive interpretation in its reference to the "object and purpose" of the treaty being considered. Incidentally, the somewhat enigmatic expression "object and purpose" is also used in the Vienna Convention with respect to the legal consequences of signature, the permissibility of reservations, and bilateral modifications or suspensions to multilateral treaties and material breaches.v' The term "object and purpose" can mean all things to all people. Thus, the Appeals Chamber said an interpretation "dictated by the object and purpose of the Statute" argued in favour of giving a broad scope to the Tribunal's subject matter jurisdiction, so as to go beyond the forms of criminal participation explicitly set out in Article 7 (I) and to include "common purpose" complicity.v' The Appeals Chamber also applied the "object and purpose" approach to Article 2 of the ICTY

57 58

59 60

61

Prosecutor v. Delalic et aI., supra note 10, para. 162. Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, Decision of Trial Chamber I on the Defence Motion to Dismiss , 3 Sept . 1998. Prosecutor v. Delalic et aI., supra note 10, para. 166. Prosecutor v. Dusko Tadic, supra note 3, para. 71; Prosecutor v. Dusko Tadic, supra note 25, para . 44; Prosecutor v. Rutaganda, supra note 21, para . 57; Prosecutor v. Musema , supra note 21, para. 162. Prosecutor v. Dusko Tadic, Case No. IT-94-1, Decision on the Defence Motion on Jurisdiction, 10 Aug. 1995, para. 19; Prosecutor v. Dusko Tadic, supra note 3, para . 76; Prosecutor v. Dusko Tadic, supra note 12, para. 269.

62

Prosecutor v. Delalic et aI., supra note 10, para . 166.

63

Ibid. Also: Prosecutor v. Dusko Tadic, supra note 25, para . 748.

64

Supra note 2, arts. 18, 19 (c), 20 (2), 41 (l)(a)(ii), 58 (I)(a)(ii), 60 (3)(b).

65

Prosecutor v. Dusko Tadic, supra note 12, paras 190-19 I.

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Statute, but with reference to the "object and purpose" of the Geneva Conventions , in extending the concept of "protected persons" within the context of ethnic conflict." Elsewhere in the judgment it used the "object and purpose" to defend a comparably broad view of Article 5 of the Statute: .. . the interpretation of Article 5 in the light of its object and purpose bears out the above propositions. The aim of those drafting the Statute was to make all crimes against humanity punishable, including those which, while fulfilling all the conditions required by the notion of such crimes, may not have been perpetrated on political, racial or religious grounds as specified in paragraph (h) of Article 5. In light of the humanitarian goals of the framers of the Statute, one fails to see why they should have seriously restricted the class of offences coming within the purview of "crimes against humanity", thus leaving outside this class all the possible instances of serious and widespread or systematic crimes against civilians on account only of their lacking a discriminatory intent/" For Judges McDonald and Vohrah, "[tjhe overarching object and purpose of the Statute is ensuring a fair and expeditious trial for the accused" .68They also wrote: "To interpret silence as a prohibition would frustrate this object and purpose of the Statute ."69But the Tribunal , in its first annual report, noted that its "purposes" had been set down in the Security Council resolutions, and that they were threefold : "to do justice, to deter future crimes , and to contribute to the restoration and maintenance of peace."?" In Furundiija, Trial Chamber II recognised a broad scope to accomplice liability for the crime of torture (the accused had encouraged but not physically performed torture on the victim), writing : "The rules of construction emphasising the importance of the object and purpose of international norms lead to the conclusion that international law renders all the aforementioned persons equally accountable,

66

67 68

69 70

Ibid., supra note 12, para. 166; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-141l-A, Judgement, 24 Mar. 2000, para. 152. Prosecutor v. Dusko Tadic, supra note 12, para . 285. Kanyabashi v. Prosecutor, supra note 13, Joint and Separate Opinion of Judge McDonald and Vohrah, para . 16. Also : Nsengiyumva v. Prosecutor, supra note 13, para . 15. Ibid . First Annual Report of the Internati onal Criminal Tribunal for the former Yugoslavia, para. 11.

Interpreting the Statutes of the ad hoc Tribunals

863

although some may be sentenced more severely than others, depending upon the circumstances."?' In Celebici, Trial Chamber II discussed teleological interpretation, and its common law manifestation known as the "mischief rule" : 163. The "teleological approach", also called the "progressive" or "extensive" approach, of the civilian jurisprudence, is in contrast with the legislative historical approach. The teleological approach plays the same role as the "mischief rule" of common law jurisprudence. This approach enables interpretation of the subject matter of legislation within the context of contemporary conditions. The idea of the approach is to adapt the law to changed conditions, be they special, economic or technological, and attribute such change to the intention of the legislation. 164. The mischief rule (also known as the purposive approach), is said to have originated from Heydon 's case, [fn. 208: (1584) 3 Co. Rep . 7a] decided by the ancient English Court of Exchequer in 1584. In Heydon's case, four questions were posed in order to discover the intention of the legislation in question: (a) what was the common law before the making of the Act; (b) what was the mischief and defect for which the common law did not provide; (c) what remedy has Parliament resolved and appointed to cure the disease; and (d) the true reason for the remedy. According to the approach taken, the court is enjoined to suppress the mischief and advance the remedy. This requires looking at the legislative history for the "mischief' which may not be obviou s on the face of the statute . This approach to interpretation is generously relied upon in Continental and American courts." More recently , Trial Chamber III invoked a purposive interpretation of Article 29 of the ICTY Statute, holding that while the provision "is, on its face, confined to the issuing of orders to States", the object and purpose entitled a broad reading by which it could also apply to an international organization such as the NATO-led SFOR.73

71

Prosecutor v. Anto Furundiija, supra note 7, para . 254.

72

Prosecutor v. Delalic et al., supra note 10.

13

Prosecutor v. Simic et aI., Case No . IT-95-9, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others , 18 Oct. 2000 , para . 38.

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Chapter 38

The mere fact that the text of Article 29 is confined to States and omits reference to other collective enterprises of States does not mean that it was intended that the International Tribunal should not also benefit from the assistance of States acting through such enterprises in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. A purposive construction of the Statute yields the conclusion that such an order should be as applicable to collective enterprises of States as it is to individual States; Article 29 should, therefore, be read as conferring on the International Tribunal a power to require an international organization or its competent organ such as SFOR to cooperate with it in the achievement of its fundamental objective of prosecuting persons responsible for serious violations of international humanitarian law, by providing the several modes of assistance set out therein." Teleological interpretation, if unchecked, can quickly become an invitation to judicial lawmaking. It would seem that counsel before the Tribunals, when frustrated with the text of the Statutes or of the Rules, often argue that the judges should "correct" or even amend such provisions in order to fulfil the "purpose" of the Security Council. In one case, when a judge had refused to confirm an indictment, the Prosecutor appealed, despite the lack of any provision in the Rules allowing for such a decision to be revised. The Prosecutor argued that the Appeals Chamber should invent a right to appeal the dismissal of an indictment because to do otherwise would frustrate achieving the mandate of the ICTR. The Appeals Chamber replied: "The logical consequence of the interpretation advanced .. . would be that where the Trial or Appeals Chamber refused to grant any relief requested by the Prosecutor, the Chambers would thereby be obstructing her mandate [. ..] The Prosecutor's arguments for a teleological interpretation of the Statute , therefore, do not support such a broad interpretation of Article 24."75 In Prosecutor v. Akayesu, Trial Chamber I of the ICTR indulged precisely in such judicial gap filling, all in the name of teleological or purposive interpretation. The Trial Chamber was perplexed by the enumeration of protected groups in the definition of genocide, and seemed to have difficulty classifying Rwanda's Tutsi as a national, racial, ethnical or religious minority. "In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention , which according to the travaux preparatoires, was patently to ensure

74

Ibid., paras 47-48.

75

Prosecutor v. Bagosora et al., supra note 9, paras 32-33 .

Interpreting the Statutes of the ad hoc Tribunals

865

the protection of any stable and penn anent group", it said." In effect, then, the Trial Chamber amended the restrictive definition of genocide contained in Article 2 of the Statute (and article II of the 1948 Convention) in order to give effect to what it deemed was the intent of the drafters . Sometimes the judges refer to the human rights and humanitarian goals of the Tribunals by reference, for example , to their purpose in protecting "human dignity" . They will adopt interpretations that further this goal. For example, in Furundiija, Trial Chamber II justified a broadened definition of rape because this helped to promote the "fundamental principle of protecting human dignity" ."

VI. " TRAVAUX PREPARATOIRES" Article 32 of the Vienna Convention invites resort to the travaux preparatoires , that is, the preparatory work or legislative history, but only as a "supplementary means" of interpretation used either to confirm an interpretation arrived at according to the general canons of construction or, alternatively, when these general principles leave the meaning ambiguous or obscure or lead to a manifestly absurd or unreasonable result. Judges McDonald and Vohrah, in two ICTR appeals, said "no recourse to supplementary means of interpretation is necessary since this approach is resorted to only when the language of the provision is ambiguous"." A quite dramatic example of the "supplementary" role of the travaux is provided in the Tadic appeal on the merits. The Appeals Chamber was considering the scope of Article 5, which codifies crimes against humanity, and specifically whether it imposed a motive requirement on all punishable acts. Thi s had been suggested in the Secretary-General's report to the Security Council. By "approving" the Report, the Security Council clearly intended to endorse its purpose as an explanatory document to the proposed Statute . Of course , if there appears to be a manifest contradiction between the Statute and the Report, it is beyond doubt that the Statute must prevail. In other cases, the Secretary-General's Report ought to be taken to provide an authoritative interpretation of the Statute . .. . [I]n the case under consideration it would

76

Prosecutor v. Akayesu, supra 21, para. 516. Also: Musema , supra note 21, para. 162.

77

Prosecutor v. Anto Furundiija , supra note 7, para. 184.

78

Kanyaba shi v. Prosecutor, supra note 70, para. 28; Nsengiyumva v. Prosecutor, supra note 41, para. 27.

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Chapter 38

seem that, although the discrepancy between the Report and the Statute is conspicuous, the wording of Article 5 is so clear and unambiguous a~ to render it unnecessary to resort to secondary sources of interpretation such as the Secretary-General's Report . Hence, the literal interpretation of Article 5 of the Statute, outlined above, must necessarily prevail,"? Similarly, the Appeals Chamber refused to consider the speeches of members of the Security Council when the Statute was being adopted because it found no ambiguity or obscurity in Article 5 of the Statute. 80 In a sense, consultation of the travaux preparatoires fits squarely within teleological interpretation, on the assumption that one of the better ways to determine legislative intent is to study what the drafters claimed they sought. Yet it is precisely because drafters don't always say what they mean that common law judges have long eschewed resort to Parliamentary debates as an indication of legislative purpose ." Thus, under general principles as well as under the Vienna Convention, the aim of the legislator is to be found initially outside of the travaux preparatoires, which may only be consulted if the text itself is unclear, ambiguous or absurd . But what exactly are the travaux preparatoires of the two Statutes? Certainly they include the records of the Security Council debates at the time the statutes were adopted, as well as the Secretary-General's report to the Security Council.P As Trial Chamber II stated: It seems to the Trial Chamber that any travaux preparatoires, opinions expressed by members of the Security Council when voting on the relevant resolutions, and the views of the Secretary-General ofthe United Nations expressed in his Report, on the interpretation of the Articles of the Tribunal's Statute cannot be ignored in the interpretation of provisions which might be deemed ambiguous. The vast majority of members of the international community rely upon such sources in construing international instruments."

79

80

81

Prosecutor v. Dusko Tadic, supra note 12, paras 295-296 (and see paras 293 to 297 generally) . Ibid., paras 298-304 . Miller v. Taylor, (1769) 4 Burr. 2303, 2332, 98 E.R. 201, 217. Trial Chamber n noted this different treatment of the travaux in national and international law systems : Prosecutor v. De/alii et al., supra note 10, para. 168.

82

Supra note 15.

83

Prosecutor v. Delalic et al., supra note 10, para. 169. Also: Prosecutor v. Kordic and Cerkez: Case No. IT-95-14/2, Decision on the Joint Defence Motion to Dismiss the Amended Indict-

Interpreting the Statutes ofthe ad ho c Tribunals

867

The Security Council built upon the work of the International Law Commission in the nearly eternal project of preparation of the draft Code of Crimes Against the Peace and Security of Mankind, underway since the late 1940s, as well as the more recent enterprise of drafting a statute for an international criminal court . This material ought logically to be considered under the rubric travaux, although the references in the case law of the Tribunals have mainly been to the final draft Code of Crimes, adopted in 1996,84 and the Rome Statute, adopted in 1998,85 and these subsequent instruments are obviously consulted on another basis." The work of the Commission of Experts, mandated by the Security Council in 1992, has been cited on occasion ," but virtually no use has been made of the various proposals,

ment for Lack of Jurisdiction Based on the Limited Juri sdictional Reach of Articles 2 and 3, 2 Mar. 1999 (Decision on Articles 2 and 3), para. 29; Prosecutor v. Kordic and Cerkez, Case No. IT-95-1412,Decision on the Joint Defence Motion to Strike Paragraphs 20 and 22 and All References to Article 7 (3) as Providing a Separate or an Alternative Basis for Imputing Criminal Responsibility, 2 Mar. 1999, para. 5. 84

85

86

87

' Report of the International Law Commission on the work of its forty-eighth session , 6 May26 July 1996', UN Doc. N5l/1O. For example, Prosecutor v. Dusko Tadic, supra note 25, para. 688; Prosecutorv. Akayesu, supra note 21, paras 203, 284, 315 ; Prosecutorv. Delalic et al. supra note 10, para . 309 ; Prosecutor v. Anto Furundiija , supra note 7, paras 227, 242, 247 ; Prosecutor v. Kordic and Cerkez: Decision on Articles 2 and 3, supra note 83, paras 2325; Prosecutorv. Kayishema and Ruzindana, supra note 20, paras 87, 96, 103, 125, 150-151, 218; Prosecutorv. ZlatkoAleksovski, supra note 34, paras 70, 81; Prosecutor v. Dusko Tadic, sup ra note 12, para . 291; Prosecutor v. Rutaganda, sup ra note 21, para. 119; Prosecutor v. Goran Jelisi c, supra note 17, para . 53. Supra note 6. For example, Prosecutor v. Delalic et al., supra note 10, para. 309 ; Prosecutor v. Anto Furundiija , supra note 7, paras 227, 244; Prosecutor v. Kordic and Cerkez, Decision on Articles 2 and 3, supra note 83, paras 23-25; Prosecutor v. Kayishema and Ruzindana , supra note 20, paras. 143, 150-151,209,221,227; Prosecutor v. Zlatko Aleksovski , supra note 34, para 70; Prosecutor v. Dusko Tadic, supra note 12, paras 222-223 , 291; Prosecutor v. Ruta ganda, sup ra note 21, para. 65; Prosecutor v. Goran Jelisic, supra note 17, para. 53.

Very exceptionally, the Trial Chamber referred to the draft statute prepared by the International Law Commi ssion in Prosecutor v. Dusko Tadic, Case No. IT-94-1, Decision on the Defence Motion on thc Principle of non-bis-in-idem, 14 Nov. 1995, paras 23-24, and to the 1991 report of the International Law Commission on the draft code of crimes in Prosecutor v. Dusko Tadic, supra note 25, para. 647 . Pursuant to UN Doc. SlRES1780 (1992) . For example, Prosecutor v. Dusko Tadic, sup ra note 3, Separate Opinion of Judge Li , paras 8, 18, 19; ibid., Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 54; Prosecutor v. Dusko Tadic, supra note 25, para. 640; Prosecutor v. Delalic et al., supra note 10, para . 357; Prosecutor v. Goran Jelisic, supra note 17, para . 54.

868

Chapter 38

beginning with the CSCE study and draft statute, in early 1993 as the preparation of the ICTY statute was underway." There are numerous examples in the jurisprudence of the ad hoc Tribunals of resort to the travaux preparatoires . Once again, the benchmark is the majority opinion in the Tadic Jurisdiction Decision, signed by Judge Antonio Cassese. Treating them as part of its discussion of teleological interpretation of the ICTY statute, the Appeal s Chamber referred to the Secretary-General's report as evidence of the intent of the Security Council in establishing the Tribunal. 89 The Appeals Chamber also invoked the debates in the Security Council at the time resolution 827 was adopted to support its conclusion that Article 3 of the Statute contemplated noninternational as well as international armed conflict.'? Furthermore, the Appeals Chamber referred to Security Council activity prior to the adoption of resolution 827, such as its many earlier resolutions dealing with the situation in Bosnia and Herzegovina." One of the pitfalls in consulting the travaux preparatoires, particularly when they consist of lengthy debates in international organs like the Sixth Committee and the General Assembly, as is the case with the definition of genocide, is that some material to support practically any interpretation can be found. More than one judge or author has taken quotations from debates in the Sixth Committee or a similar body entirely out of context in asserting that some interpretation or another is based on the travaux. There is a quite dramatic demonstration of this in the extravagant interpretation given by the ICTR Trial Chambers to the scope of the crime of genocide . Some of the judge s in Arusha have asserted, but with only the most cavalier general reference to the "debates in the Sixth Committee", that the drafters meant to cover all "permanent and stable groups", and not simply the "national, racial, ethnical and religious groups" listed in the definition that was

88

These documents were given United Nation s document numbers, and can be readily consulted in Virginia Morris & Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis, Vol. II, (New York: Transnational Publishers, 1995). The only examples this author has found are Prosecutor v. Dusko Tadic, supra note 3, Separate Opinion of Judge Li, para. 9, referring to the proposal of the International Commi ssion of the Red Cross, and Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, para . 57.

89

Prosecutor v. Dusko Tadic, supra note 3, para. 75; also, paras 79, 82, 86, 87, 138, 143.

90

lbid., para . 75; also , para . 88.

91

Ibid., paras 72, 74, 78; also, paras . 114, 116.

Int erpreting the Statutes of the ad hoc Tribunal s

869

finally adopted. " Close scrutiny of the debates shows that only on occasion did some delegates seem to favour such a larger view.?' Perhaps the Appeals Chamber has gone through a change of heart on this subject since Tadic in October 1995, as some writers suggest." Its refusal to rely on the Secretary-General's report or on the Security Council debates, in Tadic on the merits in July 1999, can theoretically be distinguished because in the latter judgment it did not find ambiguity or obscurity in Article 5, at least with respect to the issue of discriminatory intent. In the earlier Tadic Jurisdiction Deci sion, the Appeal s Chamber declared that the scope of Articles 2 and 3 was " unclear" on a literal reading." Nevertheless, it went on to consider the Secretary-General's report and the Security Council debate as part of its discussion of "teleological interpretation" and the object and purpose." and not after these techniques had left the meaning ob scure or ambiguous. If indeed the Appeals Chamber has adjusted its approach to the travaux preparatoires, the message has had difficulty percolating back to the Trial Chambers. In Blaskic, in March 2000, Trial Chamber I cited the Security Council debates with respect to Article 5 as confirmation of the literal reading, namely, that it only applies in the case of armed conflict; surely there is no ambiguity or obscurity in Article 5 on that question." In addition to the preparatory work of the statutes themselves, the Tribunals have sometimes referred to the travaux of other international instruments, generally with respect to treaty provisions incorporated within the statutes themselves. For example, frequent reference has been made to the Commentaries to the Geneva Conventions and the Protocols, volumes based essentially on the proceedings of the various diplomatic conferences," as well as to the debates during drafting

92

93

94

Prosecutor v. Akayesu , supra note 21, para. 239. Prosecutor v. Musema , supra note 21, para. 162. For detailed discussion of this see: William A. Schabas, Genocide in International Law, (Cambridge: Cambridge University Press, 2(00), pp. 130-133. Micha el Bohlander, 'Pros ecutor v. Dusko Tadic, "Waiting to Exhale' " (2000) II Criminal Law Forum 217, 228-229 ; Marco Sassoli & Laura M. Olson, 'The Judgment of the ICTY Appeals Chamber on the Merit s in the Tadic Case' , (2000) 82 International Review of the Red Cross 733, 766.

95

Prosecutor v. Dusko Tadic, supra note 3, para. 71.

96

Ibid. , para. 75.

97

Prosecutor v. Tihomir Blaski c, supra note 47, para. 71.

98

Prosecutor v. Akay esu, supra note 21, para. 216; Prosecutor v. Delalic et al., supra note 10, paras 263, 472, 501, 505, 507-510, 519, 521-532 , 562 ; Prosecutor v. Zlatko Aleksovski ,

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of the 1948 Genocide Convention."?In construing Article 6 (3) of the ICTR Statute dealing with superior responsibility, Trial Chamber I referred to the 1977 Diplomatic Conference at which the first codification of the principle, Article 86 (2) of Additional Protocol I, was adopted . It observed that delegates had rejected a "should have known" standard as being too broad.'?" The Appeals Chamber also referred to the travaux preparatoires of the International Covenant on Civil and Political Rights , in order to construe the expression "established by law".'?' Citing debates in the Commission on Human Rights in 1949, the Appeals Chamber noted that there had been unsuccessful attempts during drafting to introduce the term "preestabli shed" so as to foreclose a repeat of the Nuremberg tribunal.P- This argument was invoked to dismiss charges that the ad hoc Tribunal was not properly const ituted .

VII. THE OTHER STATUTE The two ad hoc Statutes are virtually identical except for the subject-matter jurisdiction provisions. Genocide is defined in the same way in both instruments, but there are intriguing and significant differences in the definitions of crimes against humanity. Furthermore, the ICTR Statute formally recognises war crimes in internal armed conflict, with reference to treaty rather than to customary law, whereas at best the ICTY Statute only leaves this implicit. Should one Statute's provisions be used to assist in interpreting the other's? After all, given the common authorship , nuances between the two instruments may well provide clues to intent. But curiously, the Appeals Chamber, in the Tadic Jurisdiction Decision, did not refer to the statute of the ICTR, adopted 18 months earlier, even though this seems

supra note 34, paras 55, 81; Prosecutor v. Rutaganda, supra note 21, paras 92, 94; Prosecutor v.Musema , supra note 21, para. 130; Prosecuto r v. Zlatko Aleksovski, supra note 66, para. 22. 99

1()()

Prosecutor v. Akayesu, supra note 21, paras 122,229,239,247,279,284; Prosecutor v. Kayishema and Ruzindana, supra note 20, para . 105; Prosecutor v. Rutaganda, supra note 21, para . 57 ; Prosecutor v. Musema , supra note 21, para . 187. Prosecutor v. Musema, supra note 21, para. 146. The travaux of Additional Protocol I are also discussed in Prosecutor v. Delalic et al., supra note 10, para. 340 .

101

International Covenant on Civil and Politi cal Rights, (1976) 999 UNTS 171.

102

Prosecutor v. Dusko Tadic, supra note 3, para . 45 .

Interpreting the Statutes of the ad hoc Tribunals

871

to bolster the concept of criminal liab ility for war crimes and crimes against humanity in internal armed conflicts. Perhaps it was concerned that this might actually be an argument supporting the contrary view. l?' as was in fact the situation in the CelebiCi case: While article 4 of the ICTR Statute contains explicit reference to common article 3 of the Geneva Conventions and Additional Protocol II, the absence of such express reference in the Statute of the [ICTYj ... does not, by itself, preclude the application of these provisions. The Defence cites the Report of the Secretary-General relating to the ICTR, which states that article 4 of that statute "for the first time criminalises common article 3 of the four Geneva Conventions" in support of its position. The Trial Chamber notes, however, that the United Nations cannot "criminalise" any of the provisions of international humanitarian law by the simple act of granting subject-matter jurisdiction to an international tribunal. The International Tribunal merely identifies and applies existing customary international law and, as stated above, this is not dependent upon an express recognition in the Statute of the content of that custom, although express reference may be made, as in the statute of the ICTR.I04 Trial Chamber I, in Tadic on the merits, referred to the definition of crimes against humanity in the ICTR Statute, which does not require the presence of armed conflict, contrasting it with Article 5 of the ICTY Statute. lOS Similarly, it noted that the ICTR Statute explicitly requires a discriminatory intent as a component of all acts of crimes against humanity, an aspect missing in the text of Article 5 of the ICTY Statute. 106 Nevertheless, the Trial Chamber did not consider this to be too important, and for other reasons opted to read a discriminatory intent requirement into Article 5. This finding was reversed by the Appeals Chamber, but the difference between the texts of the two statutes, although argued by the parties,'!" was not even addressed by the Tribunal. When the matter of discriminatory intent was subsequently raised once again before the ICTR, Trial Chamber I distinguished

103

See: Prosecutor v. Dusko Tadic, supra note 3, Separate Opinion of Judge Li, para. 11.

104

Prosecutor v. Delalic et al., supra note 10, para. 310 (footn ote omitted).

105

Prosecutor v. Dusko Tadic, supra note 25, para. 627.

106

Ibid., para . 652.

107

Prosecutor v. Dusko Tadic, supra note 12, paras 274 , 279.

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the precedent of the Appeals Chamber noting that it applied to the ICTY Statute and not the ICTR Statute, whose wording was different .l'"

VIII . PRESUMPTION IN FAVOUR OF CUSTOMARY INTERNATIONAL LAW

Several judges of the Tribunals seem to subscribe to a view whereby in the event of uncertainty, there is a presumption in favour of the interpretation that more closely corresponds to customary international law. No such rule, it should be noted, appears in the Vienna Convention. The Appeals Chamber has affirmed "the principle whereby, in case of doubt and whenever the contrary is not apparent from the text of a statutory or treaty provision, such a provision must be interpreted in light of, and in conformity with, customary international law. In the case of the Statute, it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules."I09 Here there is some reliance on statements in the Secretary-General's report, by which the Statute of the ICTY was intended to go no further than customary international law. I 10 As the majority explained in Tadic, "the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty" .'!' Logically, then, only the subject matter jurisdiction provisions of the statutes are to be interpreted in a manner consistent with customary international law. It was on this basis that the Appeals Chamber in the Tadic Jurisdiction Decision examined the scope of customary international law with respect to internal armed conflict and crimes against humanity. Interestingly, this approach to interpretation echoes a canon of statutory interpretation in common law jurisdictions.!'?

108

Prosecutor v. Rutaganda, supra note 21, para. 75; Prosecutor v. Musema , supra note 21, para. 21 I.

109

Prosecutor v. Dusko Tadic, supra note 12, para. 287 (see also para. 296).

110

Supra note 15, para. 34.

111

Prosecutor v. Dusko Tadic, supra note 3, para. 143.

112

Trendtex Trading Corporation v. Central Bank of Nigeria, [1977] I All E.R. 881 (H.L., per Lord Denning).

Interpreting the Statutes of the ad hoc Tribunals

873

A few judgments have gone somewhat further with respect to the role of customary international law, suggesting that in fact it is "imported" into the statutes . I 13 There is some authority for the view that the Tribunals are bound by rules of evidence that are part of customary international law, at least to the extent that there is no explicit norm in the Rules of Procedure and Evidence. I 14 Judge Hunt has taken a still more extreme position : "It may be accepted that the Tribunal is bound by customary international law, as is the United Nations itself,"!" But the Appeals Chamber, in Tadic on the merits, expressed the better view, namely, that "it is open to the Security Council- subject to respect for peremptory norms of international law (jus cogens) - to adopt definitions of crimes in the Statute which deviate from customary international Iaw't.!" The judges have, in effect, often applied such a presumption when considering challenges based on the nullum crimen sine lege rule. This is not all that different than the approach taken by many national courts , favouring interpretations corresponding to widely-recognised fundamental rights and freedoms over those that do not. J 17 For example, Trial Chamber III of the ICTY stated that "the principle of legality is the underlying principle that should be relied on to assess the subjectmatter jurisdiction of the International Tribunal, and that the International Tribunal only has jurisdiction over offences that constituted crimes under customary international law at the time the alleged offences were committed't.!" In Jelisic , Trial Chamber I said it would interpret the scope of the crime of genocide in this manner: "In accordance with the principle nullum crimen sine lege, the Trial

113 114

115

116 I I?

Prosecutor v. Dusko Tadic, supra note 25, para. 559 . lbid. , para. 539 ; Prosecutor v. Delali c et al., supra note 10. para . 594 ; Prosecutor v. Simic et al., Case No. IT-95-9-PT, Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, paras 40-42 (also paras 74, 76, 80). Prosecutor v. Simic et al., Case No.IT-95-9 , Separate Opinion of Judge David Hunt on Prosecutor's Motion, 27 July 1999, para. 20. Prosecutor v. Dusko Tadic, sup ra note 12, para. 296.

An histori c example of this in the common law is the ancient and celebrated precedent holding "a man's home is his castle": Semayn e' s case, 5 Co. Rep. 91a, 77 E.R. 194. It is authority for the proposition that both privacy and property rights cannot be breached without clear statutory authority . If a provision is ambiguou s, it will be construed to prevent intrusion. Note that Trial Chamber II has also suggested a presumption in favour of interpretations that correspond to modem human rights law: Prosecutor v. Delalic et al., supra note 10, para. 266.

us Prosecutor v. Kordic and Cerkez, Decision on Articles 2 and 3, sup ra note 83, para . 20.

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Chamber means to examine the legal ingredients of the crime of genocide taking into account only those which beyond all doubt form part of customary international law" .'!? Although the Secretary-General's report referred only to the subject matter jurisdiction provisions in terms of conformity with customary international law, this approach has been extended by the Tribunals in addressing the scope of criminal participation under Article 7 of the ICTY Statute and Article 6 of the ICTR Statute. For example, the Appeals Chamber satisfied itself that "common purpose" complicity was contemplated by Article 7 (1) of the ICTY Statute after concluding that this was recognised by customary international law. 120 Trial Chambers have also turned to customary international law in asses sing the mental and physical elements of aiding and abetting.'!' With respect to the ambit of superior responsibility, a basis of criminal liability permitted by Article 7 (3) of the ICTY Statute and Article 6 (3) of the ICTR Statute, the Trial Chambers have favoured an interpretation corresponding to the state of customary international law. The provisions in the statutes refer to the criminal responsibility of a superior if he or she knew or had reason to know that a subordinate was about to comm it serious violations of international humanitarian law or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. When Trial Chamber II of the ICTY construed the words "had reason to know" in Art icle 7 (3), it said it was "bound to apply customary law as it existed at the time of the commission of the alleged offences" . 122 Thi s standard, which must be considered to reflect the position of customary law at the time of the offences alleged in the Indictment, is accordingly controlling for the construction of the mens rea standard established in Article 7(3) . The Trial Chamber thus makes no finding as to the present content of customary law on this point. It may be noted, however, that the provision on the responsibility of military commanders in the Rome Statute of the International Criminal Court provides that a commander may be held criminally responsible for failure to act in situations where he knew or should have known

119

Prosecutor v. Goran Jelisic, supra note 17, para. 61.

120

Prosecutor v. Dusko Tadic, supra note 12, paras 194-220.

121

Prosecutor v. Dusko Tadic, supra note 25, para . 688 ; Prosecutor v. Delalic et al., supra note

122

Ibid., para . 390.

10, para . 325 .

Interpreting the Statutes of the ad hoc Tribunals

875

of offences committed, or about to be committed, by forces under his effective command and control, or effective authority and control .P' Lingering reticence among the judges about the scope of superior responsibility resurfaced recently in the Krajisnik case. The defendant challenged, in a preliminary motion, the applicability of Article 7 (3) of the Statute to the crime of genocide in the sense that customary international law does not recognise superior responsibility for genocide. Although the motion was dismissed, Judge Mohammed Bennouna described the defence arguments as "far from being futile" . Judge Bennouna in effect invited the defence to return to the matter in its arguments on the merits of the case.t> Customary law has also been addressed with respect to whether superior responsibility extends to civilians. In Akayesu, Trial Chamber I considered the Tokyo Trial's conviction of civilian officials but, noting the dissent of Judge ROling, said the matter remained "contentious't.!" Trial Chamber II was less troubled by the point, and readily concluded that it is in accordance with the customary law doctrine of command responsibility.P" Returning to the issue more than a year later, Trial Chamber I of the ICTR expressed a number of caveats but ultimately agreed that civilians could be convicted on the basis of Article 6 (3) of the ICTR Statute. 127 Besides the overarching issues of jurisdiction and criminal participation, the Tribunals have also resorted to customary international law for the purposes of construing such specific offences as murder, rape and torture . For example , in defining the term "rape" the Trial Chambers have expressed concern that they do not exceed the scope of customary international law. The initial stab at this was taken in Akayesu, in which Trial Chamber I of the ICTR adopted a rather novel definition of rape and extend ed it to acts of sexual assault such as forced fellatio, saying the essence of rape "cannot be captured in a mechanical description of objects and body parts" . There was no discus sion of the issue of customary inter-

123 124

Ibid., para. 393 . Prosecutor v. Krajisnik. Case No . IT-OO-39, Separate Opinion of Judge Bennouna, 22 Sept . 2000.

125

Prosecutor v. Akayesu , supra note 21, para . 218 . Also: Prosecutor v. Musema, supra note 21 , paras 132-134.

126

Prosecutor v. De/alii et ai., supra note 10, para . 357 .

127

Prosecutor v. Musema , supra note 21 , para . 148.

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national law and in fact, the Trial Chamber considered itself entitled to devise a definition because "there is no commonly accepted definition of this term in international law". 128 Trial Chamber I of the ICTY, in Furundiija, agreed that customary international law was of little assistance.P? although it leaned towards a somewhat more traditional definition of rape referring to penetration out of respect for the principle of legality: (. .. ] it is not contrary to the general principle of nullum crimen sine lege to charge an accused with forcible oral sex as rape when in some national jurisdictions, including his own, he could only be charged with sexual assault in respect of the same acts. It is not a question of criminalising acts which were not criminal when they were committed by the accused, since forcible oral sex is in any event a crime, and indeed an extremely serious crime . .. Therefore so long as an accused, who is convicted of rape for acts of forcible oral penetration, is sentenced on the factual basis of coercive oral sex - and sentenced in accordance with the sentencing practice in the former Yugoslavia for such crimes, pursuant to Article 24 of the Statute and Rule 101 of the Rules - then he is not adversely affected by the categorisation of forced oral sex as rape rather than as sexual assault. His only complaint can be that a greater stigma attaches to being a convicted rapist rather than a convicted sexual assailant. However, one should bear in mind the remarks above to the effect that forced oral sex can be just as humiliating and traumatic for a victim as vaginal or anal penetration. Thus the notion that a greater stigma attaches to a conviction for forcible vaginal or anal penetration than to a conviction for forcible oral penetration is a product of questionable attitudes . Moreover any such concern is amply outweighed by the fundamental principle of protecting human dignity, a principle which favours broadening the definition of rape.P? An interesting difference in approach has emerged among Trial Chambers I and II of the ICTR with respect to the importance of the presumption favouring customary international law. Pursuant to Article 4, the first act of crime against humanity is "murder" and, in the French version , "assassinat", Both Trial Chambers have seemed to agree that the customary law concept corresponds to the English term.

128

Prosecutor v. Akayesu, supra note 21, para. 325. Also: Prosecutorv. De/alii et al., supra note 10,para. 478.

129

Prosecutorv. Anto Furundiija, supra note 7, para. 177.

130

Ibid., para. 184.

Int erpretin g the Statutes of the ad hoc Tribunals

877

Accord ingly, Trial Chamber I opted for the English version because of the presumption in favour of customary law.!" But Trial Chamber II, on the other hand, preferred the French version because it was more favourable to the accused , even if this went counter to customary international law. 132

IX . INTERNATIONAL TREATIES The Tribunals have frequently referred to international treaties for the purposes of interpretation, particularly, of course, when the terms of the statutes are in some way inspired by such sources.P' Article 4 of the fourth Geneva Convention , dealing with the scope of the term "protected persons", has been discussed and interpreted on several occasions with respect to application of Article 2 of the ICTY Statute. 134 The concept of "inhuman treatment", a grave breach pursuant to Article 2 (b) of the ICTY Statute, has been construed with respect to various provisions of Geneva Convention IV,including article 27. 135 Other humanitarian law instrument s to which frequent reference has been made include the fourth Hague Convention of 1907, the 1929 Geneva Conventions and, of course, common article 3 to the 1949 Conventions. "Torture", which is both a grave breach and a crime against humanity, has been defined with reference to article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishtnent.!" The Tribunals have also looked at related documents, notably the 1975 General Assembly Declaration

131

Prosecutor v. Akayesu, supra note 2 1, para. 588; Prosecutor v. Rutaganda , supra note 21, para. 79; Prosecutor v. Musema, supra note 21, para. 214.

132

Ibid. Also: Prosecuto r v. Dusko Tadic, supra note 25, para. 748.

133

For example , Prosecutor v. Zlatko Aleksovski, supra note 66. para. 22.

134

135

136

Prosecutor v. Dusko Tadic, supra note 12. paras 164-165; Prosecutor v. Tihomir Blaski c, supra note 47, paras 125-126, 135-137, 144. Also, article 4 of Geneva Convention Ill. in Prosecutor v. Dusko Tadic , supra note 12, paras 92-97; Prosecutor v. Tihomir Blaskic, supra note 47. para. 147. Prosecutor v. Delalic et al., supra note 10. paras 519. 523-526; Prosecutor v. Tihomir Blask ic, supra note 47. para. 154. Convention Against Torture and Other Cruel . Inhuman or Degrading Treatment or Punishment. (1987) 1465 UNTS 85. Cited in Prosecutor v. Delalic et al., supra note 10, para. 456 ; Prosecutor v. Anto Furundiija , supra note 7, para. 159.

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on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment!'? and the Inter-American Convention to Prevent and Punish Torture.l" as well as the case law of the European Court of Human Rights 139 pursuant to the European Convention on Human Rights and the Human Rights Committee-" pursuant to the International Covenant on Civil and Political Rights. With respect to superior responsibility, set out in Article 7 (3) of the ICTY Statute and Article 6 (3) of the ICTR Statute, a literal reading of the text might well suggest a mental state of pure negligence: "knew or had reason to know" . Customary law was probably codified by the only positive law provision dealing with command responsibility in effect prior to 1993, namely article 86 (2) of Additional Protocol 1.14 1 The latter provision is entitled "Failure to Act" , and mandates individual responsibility of commanders who either knew "or had information which should have enabled them to conclude in the circumstances at the time" that subordinates would commit crimes. Arguably, this is a more restrictive provision than the more general terms set out in the Statutes of the Tribunals , and it has influenced the Tribunals in their construction of the Statutes.!" The provisions dealing with the rights of the accused are clearly modelled on article 14 of the International Covenant on Civil and Political Rights. 143 Several of the Rules are also derived more or less directly from the major human rights

137

138

139

140

141

142 143

GA Res. 3452 (XXX) . Cited in Prosecutor v. Delalic et al., supra note 10, paras 455 , 459 ; Prosecutor v. Anto Furundiija, supra note 7, para. 160. [1987] O.A.S.T.S. 67. Cited in Prosecutor v. Delali c et al., supra note 10, para s 458-459; Prosecutor v. Anto Furundiija, sup ra note 7, paras 160,255. For example, Ireland v. United Kingdom , 18 Jan. 1978, Series A, No . 25. Cited in Prosecutor v. Delalic et al., supra note 10, paras 463-464 . For example, Muteba v. Zaire (no. 124/1982), U.N. Doc . 40/42 . Cited in Prosecut or v. Delalic et al. , supra note 10, para. 461. Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Internat ional Armed Conflicts (Protocol 1), (1979) 1125 UNTS 3. Trial Chamber I of the ICTR has also said that the principle of command responsibility derives from the Nuremberg and Tokyo Tribunals : Prosecutor v. Musema , supra note 21, para . 128. Prosecutor v. Akayesu, supra note 21, para . 216. Prosecutor v. Draien Erdemovic, supra note 8, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 7.

Interpreting the Statutes of the ad hoc Tribunals

879

treaties. 144 The Tribunals have frequently referred to the European Convention on Human Rights and its case law dealing with procedural due process . In an early decision, Trial Chamber I refused to follow a Strasbourg precedent dealing with witness anonymity because "[tlhe International Tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process't.!" All of these instruments - the Geneva Conventions , the Protocols , the human rights treaties - were adopted well before the statutes, and moreover were in most cases referred to explicitly in the Secretary-General's report as well as the Security Council debate. They are part of the context of adoption of the statutes and obviously of assistance in determining legislative intent. But the Tribunals have also turned to international treaties adopted after the statutes for assistance in interpretation , where the basis of consultation must surely be different. In such cases, this is essentially for evidence of customary international law. Adopted in July 1998, the Rome Statute of the International Criminal Court might be said to clarify some concepts expressed only laconically in the ad hoc Tribunal Statutes , and in this sense it may assist in interpretation. The Appeals Chamber has looked to the Rome Statute for evidence that common purpose complicity was recognised at customary international law. 146 But the Appeals Chamber has pointed out that the drafters of the Rome Statute inserted article 10147 precisely to ensure that articles 6 to 8, defining the crimes of genocide, crimes against humanity and war crimes, would not be confused with the state of customary international law. "The conclusion is therefore warranted that the ICC Statute in no way affects the customary rules on war crimes as well as those contained in the Statute of the ICTY or the ICTR" , it wrote.!" The Appeals Chamber has also invoked the International Convention for

144

145

146

141

148

Prosecutor v. Delalic et al., Case No. IT-96-2 I, Decision on Zdravko Mucic 's Motion for the Exclusion of Evidence , 2 Sept. 1997, para. 60, referring to Rule 42. Prosecutor v. Dusko Tadic, supra note 48, para. 28. Along the same lines, see Prosecutor v. Kovacevic', Case No. IT-97-24-AR73 , Separate Opinion of Judge Shahabuddeen, 2 July 1998, p. 4, which supports such a view by citing the European Commission on Human Rights itself. Prosecutor v. Dusko Tadic, supra note 12, paras 222-223. "Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute ." Prosecutor v. Dusko Tadic, Case No. IT-94-I-A, Judgment in Sentencing Appeals, 26 Jan . 2000 , para. 13.

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the Suppression of Terrorist Bornbing.!" adopted in 1997, to support its finding that common purpose complicity does not offend the principle of legality. 150

X. NATIONAL LEGISLATION

Increasingly, national jurisdictions refer to international law in the interpretation of their own constitutional and other norms, and it seems only fair that the international jurisdictions do the reverse. The Rome Statute makes this explicit, when it lists as a source of applicable law "general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards" .151 Trial Chamber IT, of which Antonio Cassese was a member, invited reference to national law for the purposes of interpreting terms of the ICTY Statute , the Rules and in general concepts of international criminal law, but only on the following basis: Whenever international criminal rules do not define a notion of criminal law, reliance upon national legislation is justified, subject to the following conditions : (i) unless indicated by an international rule, reference should not be made to one national legal system only, say that of common-law or that of civil-law States . Rather, international courts must draw upon the general concepts and legal institutions common to all the major legal systems of the world. This presupposes a process of identification of the common denominators in these legal systems so as to pinpoint the basic notions they share ; (ii) since "international trials exhibit a number of features that differentiate them from national criminal proceedings", account must be taken of the specificity of international criminal proceedings when utilising national law notions. In this way a mechanical importation or transposition from national law into international criminal proceedings is avoided, as well as the attendant distortions of the unique traits of such proceedings. 152

149

G.A. Res. 52/164, annex.

ISO

Prosecutor v. Dusko Tadic, supra note 12, para. 221.

151

Supra note 6, art . 21 (l)(c).

152

Prosecutor v. Anto Furundiija, supra note 7, para. 178 (reference omitted) .

Interpreting the Statutes of the ad hoc Tribunals

881

This cautious approach reflects Judge Cassese's view, in the Erdemovic dissent, that "[w]henever reference to national law is not commanded expressly, or imposed by necessary implication, resort to national legislation is not warranted".153 He continued : Any time international law provisions include notions and terms of art originating in national criminal law, the interpreter must first determine whether these notions or terms are given a totally autonomous significance in the international context, i.e., whether, once transposed onto the international level, they have acquired a new lease of life, absolutely independent of their original meaning. If the result of this enquiry is in the negative, the international judge must satisfy himself whether the transplant onto the international procedure entails for the notion or term an adaptation or adjustment to the characteristic features of international proceedings. This exploration should be undertaken by examining whether the general context of international proceedings and the object of the provisions regulating them delineate with sufficient precision the scope and purpose of the notion and its role in the international setting . Only if this enquiry leads to negative conclusions is one warranted to draw upon national legislation and case-law and apply the national legal construct or terms as they are conceived and interpreted in the national context .'> Although it cannot of course bind the Tribunals - "[ ... ] it is clear that the Tribunal is not mandated to apply the provisions of the national law of any particular legal system"155 - national law will often have a persuasive influence on the ad hoc Tribunals. In Prosecutor v. Furundiija, given the absence of a comprehensive definition of rape in international humanitarian law, Trial Chamber IT opted for a rather traditional definition of rape, one involving forced penetration, because this is the interpretation accepted by the majority of common law and civil law systems.l>

153

154

155

156

Prosecutor v. Draien Erdemovic, supra note 8, Separate and Dissenting Opinion of Judge Cassese, p. 5.

Ibid., p. 8 (italics in the original) . Prosecutor v. Delalic et al., supra note 10, para. 414. Also: Prosecutor v. Zlatko Aleksovski, Case No. 1T-95-14/1-AR73, Decision On Prosecutor's Appeal on Admissibility of Evidence, 16 Feb. 1999, para. 19. Prosecutorv. Anto Furundiija, supra note 7, para. 181; Prosecutor v. Kvocka et al., Case No. IT-98-30, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr.1999, para. 16.

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In the Tadic Jurisdiction Decision , the Appeals Chamber con sidered whether under Yugoslav law prior to the conflict, as well as in the law of other national systems, war crimes in internal arm ed conflict attracted indi vidual criminalliability.157 Th e Appeals Chamber supported suc h pro secution from the standpoint of "s ubstantive justice and equity" 158 given that war crimes in internal conflict wer e puni shable in Yugoslavia. But the evidence cited is rath er unconvincing; the Appeal s Chamber said that because Yugoslav implementing provi sion s of the Geneva Conventions expressly applied "at the time of war, armed conflict or occupation" , this "would seem to imply that they also apply to internal armed conflicts" , although the opposite interpretation is equally if not more tenable. Yugoslav implementing legislation dealing with the grave breaches provisions of Geneva Convention IV may well not have specified that it applied only to international armed conflict becau se this was simply obviou s, given the term s of articl e I of the Convention. Con sidering wheth er aiding and abetting under Article 7 (3) of the ICTY Statute includes "c o mmon purpose" complicity, the Appeals Ch amber surveyed various national sys tems but readily conced ed that it could not be shown that most adopted the co ncept. "It should be emphasised that reference to national legislation and ca se law only serves to show that the notion of common purpose upheld in internation al criminal law has an underpinning in many national systems", it asserted modestly. Thi s was not an obstacle for the Appeals Ch amb er, however, which proceeded to stretch the notion of complicity to its limit s.v" Rule 89 (A) of the Rul es of Procedure and Evidence specifies that " [t]he Chambers shall not be bound by national rules of evidence". The Rule s are said to reflect an international am algamated sys te m without necessaril y adopting a single national system of evidence . 160 It is widely known that the Federal Rul es of Evidence of the United States were influential in drafting the Rul es of Procedure and Evidenc e, largely the result of involvement in the process by such NGOs as the Am eri can Bar Associati on as well as the personal role of Judge McDonald. Th e

157 158

159

160

Prosecutor v. Dusko Tadic, supra note 3, para. 132. Ibid., para. 135. Also: Prosecutor v. Delalic et al., supra note 10, para. 312 (and paras 311 and 313) . Prosecutor v. Dusko Tadic, supra note 12, para. 225. See Marco Sassoli & Laura M. Olson, supra note 94, pp. 747-756. Prosecutor v. Bagosora, Case No. ICTR-96-7. Decision on the Defence Motion for Predetermin ation of Rules of Evidence, 8 July 1998.

Interpreting the Statutes of the ad hoc Tribunals

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Federal Rules have accordingly been consulted to assist in interpreting the provisions of the Rules . For example, a Trial Chamber interpreting Rule 49 noted that it is apparently based on the "same transaction" test in the Federal Rules, and that under "the 'same transaction' test, it is proper . .. to join offences which are closely related in that they were interrelated parts of a similar criminal episode"."! Similarly, Rule 62 concerning guilty pleas was applied with reference to United States law.162 In effect, then, because the norm is derived from United States law, the interpretation given the norm in the United States has persuasive authority before the ad hoc Tribunals. The Trial Chambers of the ICTR have referred to Rwandan law in order to interpret the complicity provisions of the Statute . This is very different than the approach advocated by the ICTY, which as we have seen has warned against relying on any single domestic justice system for the purposes of interpreting international criminal law.163 The ICTR has never really explained why it takes this view, although it is probably founded on the belief that this somehow complies with the principle of legality. For example, in Akayesu, Trial Chamber I based itself on article 91 of the Rwandan Penal Code in interpreting the scope of the term "complicity" found in article 2 (3)(e) of the Statute.!" which is drawn directly from article III(e) of the 1948 Genocide Convention. But if this is indeed the reasoning of the ICTR, it cannot be very sound, because the international prohibition of complicity in genocide is unquestionably a customary norm, and the concept of complicity in genocide obeys an international and not a national or regional logic. Can the elements of complicity in genocide vary depending upon where the crime was committed, simply because domestic legal systems have slightly different

161 162

163

164

Prosecutor v. Kovacevic, supra note 145, Separate Opinion of Judge Shahabuddeen, p. 3. Prosecutor v. Draien Erdemovic, supra note 8, Separate and Dissenting Opinion of Judge Cassese, para . 5. Judge Shahabuddeen in his separate opinion to the Appeals Chamber decision of 29 May 1998 in Prosecutor v. Kovacevic, supra note 161.. Prosecutor v. Delalic et al., Case No. IT96-21 , Decision on the Prosecution's Aiternative Request to Reopen the Prosecution's Case, 19 Aug. 1998, p. 12; Prosecutor v. Anto Furundiija , supra note 7, para. 177. Prosecutor v. Akayesu, supra note 21, para. 537 . Similarly, with respect to "murder", Prosecutor v. Musema, supra note 21, para. 155. In Prosecutor v. Draien Erdemovi c, supra note 8, Separate and Dissenting Opinion of Judge Cassese, para . 49, Judge Cassese argued that where international law is unable to resolve an issue - in that case, it was the admissibility of the defence of duress - the law applicable in the accused's country or the country where the crime was committed should apply.

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conceptions of complicity? There is nothing really similar from the case law of the ICTY. In fact, the Tribunal has rejected suggestions that the Statute and the Rules be "read down" so as to comply with Yugoslav law.165

XI. INTERPRETING M ULTILINGUAL LEGISLATION As an annex to a Security Council resolution , the two Statutes have six official language versions, corresponding to the six official languages of the United Nations. But the Statutes also indicate that the working language s of the Tribunals are English and French ;166 for this reason the Rules are drafted only in those two languages, and they contain an interpretativ e provision requiring that in the event of difference s between them, it is the version that more faithfully reflects the spirit of the Statutes and the rules that is to prevail. 167 The Vienna Convention also establishes a rule when different language versions appear to conflict: "the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted" . 168 Rule 7 was invoked by the Appeals Chamber in construing the proper meaning of the term "subpoena", which appears in the English version of Rule 54. It noted that the French version of the term was "assignation", which did not imply a sanction, something clearly implicit in the "English" term (which is really legal Latin) . Rule 7 in effect steered the Chamber toward s other rules of interpretation, specifically that of effectiveness, and it opted for the narrower English text. " ?

165

166

167

Prosecutor v. Krnojelac, Case No. IT-97-25, Decision on the Defence Prelimin ary Motion on the Form of the Indictment , 24 Feb. 1999, para. 5. ICTY Statute, Art. 33; ICTR Statute, Art. 32. But despite the fact that both the President and the Prosecut or are more co mfortable in French than in English, the French-language capability of the ICTY still leaves something to be desired . See Prosecutor v. Dusko Tadic, supra note 3, Separate Declarati on of Judge J. Deschene s on the Defence Motion for Interlocutory Appeal on Jurisdiction ; Prosecutor v. Talic, Case No . IT-99-36, Decision on Moti on to Tran slate Procedural Documents into Fren ch, 16 Dec. 1999, para. 2. Rules of Eviden ce and Procedure , IT/32. According to a personal comm unication from Judg e Jules Deschenes, who participated in the draftin g of the first version of the Rules, this provision was inspired by the Canadian Interpretation Act.

168

Supra note 2, art. 33 (4).

169

Prosecutor v. Tihomir Blaskic, supra note 53, para . 2 1.

Interpreting the Statutes of the ad hoc Tribunals

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While there is arguably little difference between the approaches proposed in the Rules and in the Vienna Convention, neither corresponds to the actual solution proposed by some of the judges in resolving conflicts between the different versions of the statute. Two Trial Chambers of the ICTR have resolved a linguistic conflict by adopting the version more favourable to the accused, not by seeking the meaning most compatible with the texr.'?" Considering the difference between "murder" and "assassinat", in the definition of crimes against humanity, Trial Chamber I of the ICTR wrote: The English version of the Statute uses the term "murder", whilst the French version of the Statute uses the term "assassinat", In most common law jurisdictions, "murder" includes, but does not require, premeditation; whereas in most civil law systems, premeditation is always required for "assassinat", When interpreting a term from one language to another, one may find that there is no equivalent term that corresponds to all the subtleties and nuances . This is particularly true with legal terms that represent jurisprudential concepts. Here, the mens rea for murder in common law overlaps with both meurtre and assassinat in civil law systems . The drafters chose to use the word assassinat rather than meurtre, and the intention of the drafters should be followed . . . [I]f in doubt, a matter of interpretation should be decided in favour of the accused. Therefore, the standard of mens rea required under Article 3 (a) of the ICTR Statute is intentional and premeditated killing.!" But Trial Chamber I, dealing with the same issue of construction of the first act of crimes against humanity, said that "customary international law" contemplated "murder" rather than "assassinat" and that therefore "[tlhere are sufficient reasons to assume that the French version of the Statute suffers from an error in translation" . 172

170

Prosecutor v. Akayesu, supra note 21, para . 50 I; Prosecutor v. Kayishema and Ruzindana, supra note 20, paras 101-104 , also 137-139; Prosecutor v. Rutaganda, supra note 21, para. 51; Prosecutor v. Musema, supra note 21, para. 155.

171

Prosecutor v. Kayishema and Ruzindana, supra note 20, paras 137-139

172

Prosecutor v. Akayesu, supra note 21, para . 588 . Also : Prosecutor v. Musema, supra note 21, para . 214 .

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XII. CONCLUSIONS This overview of the principles of interpretation applied by the ad hoc Tribunals shows the difficulty in making any general conclusion about an established methodology.The relative weight of certain principles varies, depending upon the judge. Some seem anxious to invoke national law analogies, or to consult the travaux preparatoires, while others are more prudent, seeking the meaning first within the text itself. They seem to confirm the wisdom of Karl Llewellyn, who said that "there are two opposing canons on almost every point't.!" But such a survey of legal hermeneutics in this new area of international jurisprudence also demonstrates astonishing dynamism. The law, handed down from on high in two Security Council resolutions, has taken on a vigorous life of its own. This has clearly frightened more than a few States. One thing seems abundantly clear, there is virtually no place for "strict construction of penal statutes" in the case law of the ad hoc Tribunals, with the exception of a few isolated references , essentially by the ICTR. And yet the Rome Statute of the International Criminal Court, adopted less than three years after the Tadic Jurisdiction Decision, and itself cited often as a reference in the evolution of international custom.!" affirms that definitions of crimes "shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted."175Can this provision , too, be a customary norm , especially considering its inclusion within the Rome Statute ? Bruce Broomhall, in his commentary on article 22 of the Rome Statute , concedes that the rule of strict construction may be as much about the protection of States as it is of individual defendants.!" The drafters at Rome will justify the provision by invoking the nullum crimen rule and human rights norms, but the underlying

173

174

K.N. Llewellyn, 'Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed', (1949-50) 3 Vanderbilt Law Review 395, 401. In Prosecutor v. Anto Furundiija , supra note 7, para. 227, a Trial Chamber composed of Judges Cassese, Mumba and May stated that "resort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States."

175

Rome Statute, supra note 6, art. 22 (2).

176

Bruce Broomhall, supra note 29, p. 451.

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reason may be far less noble , a technique to stymie dynamism in the future Court. Indeed, we may well ask if the elaborate subject-matter jurisdiction provisions in the Rome Statute, not to mention that obsessive exercise in legal positivism known as the Elements of Crimes.!" as well as the entrenchment of the "strict construction" principle in article 22 (I), were reactions to the innovations of Judge Cassese and his colleagues in their interpretation of the ad hoc Tribunal Statutes. The bold approach to interpretation by the ad hoc Tribunals, particularly with respect to the subject-matter jurisdiction, is of course open to critici sm as an encroachment on the nul/urn crimen principle. Some criminal defence lawyers from national systems may be scandalised at the ease with which the judges have enlarged the definitions of crimes and the general principles of criminal responsibility. But this writer is not overly troubled by the point, because whether or not criminal behaviour falls within the scope of international prosecution by the ad hoc Tribunals is fundamentally a jurisdictional issue. Even if we suppose, for the sake of argument, and as many believed before the Tadic Jurisdiction Decision.I" that there was no individual criminal liability at international law in internal armed conflict, the underlying acts of killing , torture and rape remained crimes under general principles of law. An offender can plead that the Tribunal is without jurisdiction, based on a certain interpretation of the subject-matter provisions, but it cannot be argued that he or she did not know it was wrong . It would be different if an accused could claim that behaviour not only was outside the Tribunal's jurisdiction but also that it was genuinely innocent because the alleged crime itself did not exist. But Tadic, Furundzija, Akayesu and the others never dared advance such an argument. Perhaps this explains why Judge Cassese was so comfortable, in Tadic, with the ambitious majority interpretation of Article 2 and 3, yet so critical of the judicial lawmaking indulged in by the majority in Erdemovic , In the latter case , he railed again st "a policy-oriented approach in the area of criminal law [that] runs contrary to the fundamental customary principle nul/urn crimen sine lege". 179 Erdernovic

177

178

179

Report of the Preparatory Commission for the International Criminal Court, Addendum , Finalized draft text of the Elements of Crimes , UN Doc. PCNICCI2000IINF/3/Add.2. See the references to Professor Theodor Meron, to the Commission of Experts and to the International Committee of the Red Cross in Prosecutor v. Dusko Tadic, supra note 3, Separate Opinion of Judge Li, paras 7-9. Prosecutor v. Draien Erdemovic, supra note 8, Separate and Dissenting Opinion of Judge Cassese, para. II .

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had an arguable claim to moral innocence based on his defence of duress, and Judge Cassese was outraged at the possibility he might be stigmatised with guilt for war crimes because international judges felt policy objectives allowed them to revise the law ex post facto . Significantly, Judge Cassese's views were resoundingly endorsed by the Rome Statute, which reinstates the defence of duress I80 but at the same time recognises that war crimes can be committed in internal armed conflict, 181 Perhaps there is no greater tribute to the judge than having his or her interpretations endorsed, and not overruled, by the legislator.

180

Supra note 6, art. 31 (I)(d).

181

lbid., art. 8 (2)(c-f) .

39

POLICY-ORIENTED LAW IN THE INTERNATIONAL CRIMINAL TRffiUNAL FOR THE FORMER YUGOSLAVIA Mohamed Shahabuddeen

I. PRELIMINARY

In a contribution which I offered elsewhere, I I suggested that there might be something in Judge Cassese's dissenting opinion in Prosecutor v. Erdemovic, which was decided on 7 October 1997 by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia."The point related to an argument by Judge Cassese that dures s was a complete defence to a charge against a combatant for a war crime involving the killing of an innocent human being. On other grounds , Judge Sir Ninian Stephen came to the same conclusion. A different finding was made by the majority - Judge McDonald and Judge Vohrah, Judge Li agreeing with them on the particular point. The reasoning of some of the judges raises a question concerning the application of the policy-approach to law, as compared with the rule-approach. The question is this: If, for any reason, the sources of law prescribed by the Statute of the Tribunal do not provide an answer to a question as to whether or not a given set of circumstances constitutes a defence, can the Tribunal have recourse to considerations of policy as an independent source of law in search of the required answer? I think that Judge Cassese would have had difficulties with an affirmative answer to that question. What might be the correct position? There could be differences of view. It is on the basis of recognition of this possibility that the following considerations are offered.

I

2

C.A. Armas Barca et al. (eds.), Liber Amicorum 'In Memoriam ' of Jose Maria Ruda (The Hague, 2000) , p. 563.

Prosecutor v. Draien Erdemovic, Case No. IT-96-22-A , Judgement, 7 Oct. 1997.

LiC. Vohrah et al. (eds.), Man 's Inhumanity to Man , 889-898 ©2003 Kluwer Law International. Printed in the Netherlands.

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II. THE LAW OF THE TRIBUNAL According to Article I of the Statute of the Tribunal , the Tribunal shall have the power to prosecute persons responsible for "serious violations of international humanitarian law" . Setting aside terminological problems, the focus would seem to be on "international humanitarian law" . Of what is this made up, so far as the Tribunal is concerned? The Statute of the Tribunal was appended to a Report of the Secretary-General to the Security Council. 3 The Report was approved by the Security Council, which also adopted the Statute in the form in which it was submitted by the SecretaryGeneral, that is to say, without amendment. The position taken in the jurisprudence of the Tribunal is that the Report is part of the preparatory works of the Statute; it has in fact been used by the Appeals Chamber of the Tribunal to construe the Statute." Referring to the international humanitarian law which the Tribunal is to apply, paragraph 29 of the Report of the Secretary-General stated that "the Security Council would not be creating or purporting to 'legislate' that law. Rather, the Tribunal would have the task of applying existing international humanitarian law". Paragraph 33 of the Report explained that this "body of law exists in the form of both conventional law and customary law. While there is international customary law which is not laid down in conventions, some of the major conventional humanitarian law has become part of customary international law" . Paragraph 34 of the Report then added : In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise . This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.' There is a further source . Paragraph 58 of the Report of the Secretary-General states :

3

UN Doc. S125704 of 3 May 1993 (Report of Secretary-General).

4

Prosecutor v. Dusko Tadic, (1994-1995) I ICTY JR 353, paras 79, 82, 86 and 87.

5

See also paras 19-20 of the Report of Secretary-General. supra note 3.

Poli cy-Orien ted Law in the Tribunalfor the Form er Yugoslavia

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The International Tribunal itself will have to dec ide on various personal defences which may relieve a person of individual criminal responsibilit y, such as minimum age or mental capacity, drawing upon general principl es of law recogni zed by all nation s. The reference to "general principles of law recogni zed by all nations" was, it seems, a reference to "the general principles of law recognized by civilized nations" as mentioned in Article 38 (I )(c) of the Statute of the Internati onal Court of Justice, the neutral wording of the Rep ort of the Secretary-General being now more acceptabl e. On the basis of these remark s, the law which the Tribunal is to apply is to be found in applicabl e conventional law, customary international law and general principles of law (hereinafter referred to as the " three authorised sources of law" ). The use of any material by the Tribunal would have to be restricted to its value in enablin g the Tribun al to ascertain the contents of these three sources. The Tribunal could not use material which constituted an additional and independent basis of decision-making. This is subject to the applicability of international agreements binding on the parties, but this does not affect the argument suggested below.

III . SUGGESTED INAD EQUACY OF TH E LAW OF THE TRIBUNAL

The majority was clearl y correct in taking the position that conventional law did not provide an answer to the question of the admi ssibilit y of duress as a complete defence in the case of a combatant charged with a war crime involving the killing of innocent human beings. As to customary internati onal law, the view held was that " [n]o customary international law rule can be derived on the question of duress as a defence to the killing of innoce nt persons" ." That left general principles of law? for consideration. Here, the majority rightly held that "it is .. . a general principl e of law recognised by civilised nations that an accused person is less blamew orthy and less deserving of the full punishment when he performs a certain prohibited act under duress". 8 However, at the level of

6

7

8

Joint opinion of Judges McDonald and Vohrah in Prosecutor v. Drai en Erdemovic , Case No. IT-96-22-A, Jud gement, 7 Oc t. 1997 , para. 46, heading. I sought to show how general principles operate, in an opinio n appended to the j udgment in Prosecutor v. Anto Furundiija , Case No. IT-95-171I-A, judgement, 2 1 July 2000, pp. 80ff. Joint opinion, supra note 6, para. 66.

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particularity, it was thought that the "rules of the various legal systems of the world are . .. largely inconsistent regarding the specific question whether duress affords a complete defence to a combatant charged with a war crime or a crime against humanity involving the killing of innocent human being s"." Hence, it was "not possible to reconcile the opposing positions ... " .10 Subject to what follows, it appears, therefore, that the conclusion was that there was nothing in the three authorised sources of law which provided an answer to the question whether or not dure ss was a complete defence to a combatant charged with a war crime involving the killing of innocent human being s.

IV. RECOURSE TO THE POLICY-APPROACH The juridical problem which thus presented itself was a major one. To solve it, the majority turned to "considerations of policy" .1 1 It seem s from the context that the reference wa s to the policy-oriented approach to international law; Judge Cas sese understood it that way.' ? Recourse to that approach by a major international judicial body is interesting . So, some attention is appropriate. After citing, with approval , an excerpt from a remarkable work on the policyoriented view by a leading writer," the majority observed : "It appears that the essence of this thesis is not that policy concerns dom inate the law but rather, where appropriate , are given due con sideration in the determination of a case"." There being a link between law and policy, that statement is entitled to respectful agreement , on the basis that it mean s that , within juridically recogni sed limit s, policy concerns are admi ssible in interpreting and apply ing the three authorised sources of law. It is, therefore, made clear that the following views are offered in respect of a possible argument which is not being attributed to the majority - that argument

9

Ibid ., para. 67.

10

Ibid ., para. 72.

11 12

13

14

lb id., paras 77-78.

Erdem ovic , sup ra note 2, separate and dissenting opinion of Judge Cassese, para. II(ii), in which, referring to the joint opinion, he spoke of "a policy-oriented approach" .

Now a distinguished member of the International Court of Justice. For the work in question, see infra note 16. See para. 78 of the joint opinion, supra note 6.

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being that , where it is thought that the three authorised sources of law are wanting, the policy-oriented approach provides an additional and independent basis of decision-making. Would such an argument be correct? It may help to look briefly at the underlying theoretical position.

V. THE POLICY-ORIENTED VIEW

One approach - a traditional one - is that a court of law proceeds by neutrally finding the law and applying it objectively to the facts of the case; it is this procedure which imparts a legally binding quality to the decision. The judge may have a discretion to take into account considerations of policy, but the discretion is "j udicial discretion as governed by law"." On this view, it is the law itself which gives the discretion and which also circumscribes the considerations admissible for its exercise, the discretion being in effect a legally conferred faculty to decide between alternative but equally valid courses of action . Likewise, as mentioned above , for the purpose of interpreting a provision, policy considerations may in some circumstances be taken into account; but, again, it is the law which authorises them to be taken into account. It is not the case that policy considerations intervene from outside to determine a choice between competing norms, the chosen norm being applied to produce a solution which is then regarded as binding because it issues from the workings of a decision-making process which is accepted as capable of yielding a binding result , In contrast with that normative model , another view, which commands respect and has been adopted by jurists in some jurisdictions, follows in substance the last-mentioned approach. It would see policy considerations not as limited to the occasional role of a factor which the law itself permits to be taken into account in particular circumstances, but as filling the constant role of the ultimate dcterminant of legality and in particular of what is the norm to be applied in any given situation. With some diffidence, it appears to me that the reasoning in this complex and difficult matter may for present purposes be summarised as follows . Those "who have to make decisions on the basis of international law - judges, but also legal advisers and others - arc not really simply ' finding the rule' and then

15

Sir Hersch Lauterpacht, The Development of International Law by the International Court (London, 1958), p. 399 .

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applying it"." International law is seen as a complex process of decision-making rather than as an established body of rules . Legality depends on the decision having emerged from a process which is recognised as capable of producing a legally binding decision, rather than on the finding and application of a particular rule chosen from such an established body of rules. An international judge is faced with the "necessity of making a decision not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit"." He must make a choice "between alternative norms that could, in context, each be applicable . .. ".18 In making this choice, he is always guided by policy considerations. This is so even where he opts for what appears to be a clear rule: it is policy considerations which direct the option, no doubt following the social desideratum of stability. Thus, legality flows not from the rule itself but from the policy considerations leading to the selection of the rule and its application to the particular case. On that view, a lacuna in the law cannot exist. This is because, in the absence of a specific rule on a topic , policy considerations can be used to fashion one.'? For similar reasons , the distinction between lex lata and lex ferenda "is in large measure a false dichotomy, a cleavage that we can ourselves banish from existence't.v Provided that there is an authorised decision-making process, it will yield the required solution pursuant to policy considerations. In this sense, international law is "policy-oriented" . This approach possesses the virtue, among others, of offering a basis on which the system can go forward where it is judged that no rules exist as ordinarily understood . Naturally, in evaluating that prospect, some considerations arise. Two may be noticed . First, the traditional-minded lawyer may have some difficulty in coming to grips with the notion that a legal system could have "alternative norms" on the same point in the sense, which seems to be implied by the policy-oriented view, of norms which can be in conflict with each other and yet be equally valid. He would be more at home with the idea of resolving two conflicting claims by seeing how they

16

Rosalyn Higgin s, Problems and Process : International Law and How to Use It (Oxford , (994), p. 3.

17

Lauterpacht, supra note 15, p. 398.

18

Higgins, sup ra note 16, p. 6.

19

Ibid., p. 10.

20

Ibid .

Policy-Oriented La w in the Tribunal for the Form er Yugosla via

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stack up against the same norm , limiting the law-determining exercise to finding what that particular norm is. He would probably be drawn to Judge Anzilotti 's dictum that it "is clear that, in the same legal system, there cannot at the same time exist two rules relating to the same facts and attaching to these facts contradictory consequences .. . [E]ither the contradiction is only apparent ... or else one [rule] prevails over the other .. .".21 More recently, Judge Abi-Saab has had occasion likewise to observe that "the principle of 'normative economy' or 'economie des notions' being a categorical logical imperative for any legal system, a legal system cannot withstand the existence within its confines of two concepts or rules that fulfil essentially the same function or bear divergently on anyone situation, however slight the difference may be".22 It may be answered that these ideas do not apply to a theory which assumes that there are no rules as understood within the rule approach. Alternatively, the fundamental assumption that there could not be conflicting rules within the same legal system may be questioned. One principle prohibits the use of force , another allows it; one principle celebrates the inviolability of sovereignty, another permits apparent incursions; one principle speaks for the exclusiveness of territorial jurisdiction, another advances the concept of universality of jurisdiction over certain crimes. So the judge has to choose which rule governs in a particular case. It may be that his task is assisted by the view that these are not separate and independent rules in conflict with each other, but single rules subject to qualifications imposed by the same legal system viewed as a whole . But it is evident that room for argument exists. The second difficulty is that, in its 1996 advisory opinion in Legality of the Threat or Use ofNuclear Weapons,23 the International Court of Justice effectively took the position that there could be a lacuna> in the law which even that court is powerless to fill - and notwithstanding that what was at risk there was the survival of humanity at large . The court did not draw on any doctrine which might enable it

21

Electricity Company of Sofia and Bulgaria , RC/.J., Series AlB, No. 77, p. 90, dissenting opinion ; and sec, ibid .. at p. 105 per Judge Urrutia, also dissenting. Mr Elihu Lauterpacht, Q.c., thought that Judge Anzilotti 's view could be challenged but he did not pursue the point. See 1973 I.C.J. Pleadings, Nuclear Tests (Australia v. France), Vol. I, p. 238.

22

Prosecutor v. Dusko Tadic, (1994-1995) I ICTY JR 527 at 529 .

23

I.CJ. Reports 1996, p. 226, para . 105 (2) (E).

24

Cf. the statement in Oppenheim 's International Law, 9th ed., Vol. I, Part I, para . 3, p. 13, that it is "not permissible for an international tribunal to pronounce a non liquet .. ." .

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to fill these empty spaces one way or another on an important issue duly placed before it for its opinion . Other World Court decisions have also been construed as implying the existence of gaps in the law.

VI. APPLICABILITY OF THE POLICY-ORIENTED VIEW

Criticisms of the policy-oriented view are easy to come by; but so too are supportive arguments . The question is this: taking the doctrine as it stands, how would it apply here? An approach based on the doctrine starts with the assumption that the decisionmaker is duly authorised to act as such - that he forms part of the process which is recognised as competent to produce a binding decision . If he is an authorised part of the process, considerations of policy guide him in choosing the rule, or, as it seems, in fashioning a rule where none exists, which is to apply within the field of his authority to act as a decision-maker; they do not serve to clothe him with power to act as a decision-maker outside of the authority conferred on him. The working of the process has been described thus: The international community is not a static concept: it involves the making of decisions by a multitude of nations , on an infinite number of questions , and in greatly varying circumstances. When such decisions are made by persons without authority, relying only on effective strength, or when they are made by authorised persons, but on a basis only of expediency or pragmatism, then what occurs is political decision-making. When, however, decisions are made by authorised persons or organs , in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decisionmaking . In other words, international law is a continuing process of authoritative decisions." In appreciating this, I take it that the answer to the question whether a decisionmaker is authorised depends not on whether he is authorised by a rule as under-

25

Rosalyn Higgins , 'Policy Considerations and the International Judicial Process' , International and Comparative Law Quarterly. 17 (1968), p. 58, at pp. 58-59 , original emphasis. Similar references to the requirement of the decision-maker being authorised are to be found in chapter one of her more recent work, Problems and Process: International Law and How to Use It (Oxford , 1994).

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stood within the rule-approach, but on whether the process which he represents is seen as capable of producing a legally binding solution. So, how is the process in this case seen? Important as is the Tribunal, it is not seen as a court of unlimited criminal jurisdiction : its competence is restricted as to persons, as to time, as to place, as to the type of offences cognisable before it, and, most importantly, as to the particular branches of the law which it is to apply. A legal adviser of a ministry of foreign affairs, and more especially having regard to the particular manner in which the Tribunal was established, will have no difficulty in saying that the international community does not regard the Chambers of the Tribunal as empowered to decide outside of the three authorised sources of law: if they did so decide, they would be acting as "persons without authority " within the meaning of the citation last given . Thus , a policy-oriented view of the law would itself exclude the possibility of the Chambers being entitled to act on the basis of policy considerations which can take them outside of the three authorised sources of law. This returns the argument to the remark made above to the effect that recourse to the policy-oriented view by a major international judicial body is interesting. It may be that the doctrine explains the nature of the process through which an international tribunal comes to render a decision . It is another question whether the fashioning of a solution to a concrete problem by an international tribunal is influenced by its reflections on the nature of the process. It does not appear that the jurisprudence of the International Court of Justice has had occasion so far to benefit from the doctrine; nor would it seem that use has been made of it by counsel before that court .

VII. THE PROBLEM OF THE TRIBUNAL EXCEEDING ITS POWERS

It is right to recall that an essential principle on which the Tribunal was constructed by the Security Council was that (apart of course from any applicable conventional law and general principle s) its mandate would be restricted to customary international law, all States being bound by this. As is known , theoretically the Tribunal could also have been established by treaty, but this procedure could have encountered difficulties in securing the requisite degree of participation in the limited time available. Hence the restriction to customary international law," More

26

It is not thought that there is need to consider whetherthe SecurityCouncilhas a self-sufficient powerto modify customaryinternationallaw. On the generalquestion, see, inter alia, Gaetano

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importantly, on the basis of the restriction there would be no risk of infringement of the principle nullum crimen sine lege; this cautionary limitation could be exceeded if the Tribunal were at liberty to decide on the basis of a source of authority additional to those contemplated by the Statute . No doubt , considerations of policy could be taken into account in interpreting and applying the three authorised sources of law. But taking considerations of policy into account in interpreting such powers as the Tribunal has is a different thing from attributing powers to the Tribunal solely on the basis of such considerations. The open-ended consequences would make it hard to repel argument, which I gather underlie s Judge Cassese's thinking , that, in Erdemovic, recourse to policy considerations would be an inadmissible method of preferring the common law approach to duress to the civil law approach." Nor should there be need for such recourse: a fair assumption underlying the Statute is that the sources of authority which it prescribed would enable the Tribunal to decide on guilt or innocence on any charge brought under the Statute, and more particularly to decide whether or not any set of circumstances constitutes a defence.

VIII . CONCLUSION For these reasons , there could be utility in revisiting Judge Cassese 's view on the question of the admissibility vel non of the policy-oriented approach to law in the work of the International Criminal Tribunal for the former Yugoslavia. If the approach is admissible, it would be useful to consider whether, in the case under consideration, it leads to a result different from that produced by the Tribunal's three authorised sources of law.

Arangio-Ruiz, 'On the Security Council 's "Law-Making'", Rivista di Diritto Intemazionale, 2000, pp. 609-725 . 27

See, in this respect, Erdem ovic, supra note 2, Judge Casse se's separate and dissenting opinion, para . 11 (ii).

40 POLAND AND THE NORTH ATLANTIC ALLIANCE IN 1991 Krzysztof Skubiszewski

I had the privilege and pleasure of meeting Judge Antonio Cassese in 1994 when he was President of the International Criminal Tribunal for the Former Yugoslavia. I may add that I knew him much earlier from his remarkable writings, including his inspiring Hague lecture on "Modem Constitutions and International Law",' a subject of much interest to me. We were both very busy in The Hague , yet the fact that we worked in the same city (though at different judicial institutions) made it possible for us to see each other from time to time. On those occasions, Judge Cassese showed interest in my experience as Foreign Minister of Poland during the formative years of 1989- I993 when a new international order was emerging from the fall of communism in Europe and the resulting end of the East-West confrontation. For that reason, having been invited to write an article in honour of Judge Cassese , I do not regard it out of place to say a few words (which are also in the nature of reminiscences) on one of the policy issues the Polish Government faced in the early nineties. That issue was the relationship between Poland and the North Atlantic Alliance. The narrative below is limited to one year of that story, viz. 1991.2 Poland 's relationship with the North Atlantic Alliance started in 1990, although the year of 1989 was also relevant, and not just for the general reason that she had regained her independence. It was in 1989 that the prospect of extending the NATO

,

Recueii des Cou rs, vol. 192, 1985-IIl, pp . 9-232.

2

1have described the years 1989 and 1990 in an article published in Recht-Staat-Gemeinwohl, Festschriftfiir Dietri ch Rauschning, Heymann 's Verlag (Dortmund 2(01), pp . 385-406.

LiC. Vohrah et ai. (eds .), Man's Inhumanity to Man , 899-922 ©2003 Kluwer Law International. Printed in the Netherlands.

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area up to the western frontier of Poland arose. This was the effect of the process of German unification, which was gathering momentum from the day the authorities of the German Democratic Republic decided, under the pressure of events , to open the Berlin wall and to extend freedom of travel to its citizens. In 1989 and 1990, Poland's relations with the Alliance were governed by the basic NATO posture of non-enlargement of its membership.' Nonetheless, before 1991, the scene was already set for a dialogue and future cooperation between Poland and NATO. From the outset of the breakthrough in Central and Eastern Europe in 1989, Poland began to follow a policy of gradual alignment with the West. Establishing relations with the North Atlantic Alliance was part of that strategy, though NATO's reaction to the fundamental change in Poland (and, subsequently, in some other countries of the region) was originally rather guarded .' At that time, Poland's initiatives had to be adapted to the axiom , referred to above, that NATO enlargement was not on the Western agenda. Thus, while distinguishing between contemporary possibilities and Poland's wishes for the future, in my contacts with the Alliance members, and soon with the Alliance as a whole,' I insisted that NATO had an interest in maintaining and supporting the independence and security of Poland and the other Central and Eastern European States that aspired to freedom and democracy. Such a de facto engagement on the part of the West would be particularly important in view of the fact that in 1990 and especially 1991 Moscow was trying to recover at least some of the ground it had lost in Central Europe .

3

4

5

Poland's then policy crystallized in favour of united Germany's continuing the NATO membership of the pre-unification FRG. Formally , the moving of the NATO area eastwards did not result in any membership enlargement because on the day of unification (3 October 1990) the GDR ceased to exist by becoming part of the FRG . On the other hand , on that day the Warsaw Treaty Organization shrank ; it lost one of its member s, i.e., the GDR; but that is another story. On the other hand, at that time the European Community was more responsive to the needs of the newly demo cratic States , witness the PHARE programme and other aid, and consent to starting negotiations on association with Czechoslovakia, Hungary and Poland . I paid a visit to NATO headquarters on 21 March 1990. That visit initiated not only regular relations between the Polish Government and NATO (on 9 Augu st 1990, Poland established a liaison mission to NATO Headquarters), but also my own close personal relations with NATO Secretary -General Manfred Worner.

Poland and the North Atlantic Alliance in /99/

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I.

During the first months of 1991, I was given various signs that the United States and with it other Alliance members were very cautious in taking an official position on relations between the Alliance, on the one hand, and Poland, Czechoslovakia and Hungary, on the other. The United States was fairly critical of Hungary's policy, because, in its view, she was trying to move "too fast" . I also received information that NATO had turned down a proposal by Czechoslovakia relating to the adoption of a joint declaration, as distinct from unilateral texts released by each party separately, after President Vaclav Havel's impending visit to NATO Headquarters in Brussels." The Department of State took a favourable view of our foreign policy, which it described as "calm and balanced" and also "serious". The Department of State took note of my position - that Central Europe should not be a "grey area" - but said that "at present [i.e., early 1991] Polish membership of NATO [was] not a realistic answer to this problem ." On 1 March 1991, Daniel Fried , political counsellor at the United States Embassy in Warsaw, indicated during a key conversation at the Foreign Ministry's Department of European Institutions that whether or not Central and Eastern Europe was a grey area would depend primarily on that region itself; it was also that region that would determine what this part of Europe would be. Relations

6

Shortly before his visit to NATO, President Havel stated that "talks on joining NATO are premature, since it is the Pact which must first express a wish to see Czechoslovakia as its member" , Biuletyn Specjalny PAP, 4 Mar. 1991. In the Czechoslovak declaration issued in conjunction with this visit no reference was made to NATO membership. Welcoming Havel, Secretary General Womer said that "the three keystones of the European architecture are the Alliance , the process of European integration and the CSCE". The Czechoslovak declaration indicated a larger number of organizations: "the CSCE , the Council of Europe , the North Atlantic Alliance, the European Communities, and the Western European Union." It may be added that in April 1991, the United States ambassador to NATO, William H. Taft, IV, considered the possibility of ajoint declaration to be adopted by NATO and Poland after the planned visit by President Walesa. The declaration might have included a statement, which I would have welcomed, that stabilization in Central and Eastern Europe lay in the Alliance's interest. But Taft also said that Poland would never obtain "full guarantees" from the Alliance. In the end, Taft did not follow up on his vague suggestion regarding a joint declaration. For my part, I let it lie, preferring not to risk a rebuff. Havel's experience told me that the Alliance would treat us similarly . In his statement of 3 July 1981, welcoming Walesa to NATO headquarters, Womer reiterated and to some extent elaborated on the assurances embodied in the Statement by the North Atlantic Council meeting in Ministerial Session in Copenhagen on 6 and 7 June 1991.

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between the nations of this region and NATO were important, but the basic issue, the State Department had indicated, was what these countries would look like and what the USSR would look like. The United States assured us that on "the strategic plane" the Alliance was treating seriously the concerns of Poland, Czechoslovakia and Hungary regarding their security," However, we were told that as regards dispelling our fears there was no "instant solution" and that "moving too fast [.. .] might simply create new problems". The Department of State intimated that our security had its strategic context, i.e., the developments in the USSR and the question of the "ultimate choice" made by Gorbachev. "The matter of NATO or WEU membership is at present premature". "We should, rather, prepare ourselves for a long debate on security issues ." On the "practical" plane , progress could only be made "step by step" here, though the Department of State saw opportunities for various measures pursuant to NATO's London Declaration." The communication to us of the foregoing semi-official views of the Department of State coincided with reports stemming from NATO Headquarters. Their message was that there was no possibility of the Central and East European States obtaining guarantees from NATO; their cooperation and contacts with NATO could not isolate or marginalise the USSR.9 Public pronouncements left no illusions either. A group of 26 American experts on "Atlantic security", including "influential

7

8

9

To free themselves from bloc ties these States were conducting negotiations on, inter alia, the dissolution of their bilateral alliances with the USSR . Moscow saw this as an opportunity to try to recover some of the lost ground and pressed for the inclusion in the new treaties of clauses limiting the right of these States to join alliances and to allow foreign military forces to be stationed on their territories. See the collection of my speeches, declarations and interviews: Polityka zagraniczna i odzyskanie niepodlegosci. Przemowienia, otwiadczenia. wywiady 1989-1993, (Interpress, Warszawa 1997), p. 279, fn. 14, cited hereinafter as Polityka zagraniczna. In March 1991, the Soviet Ambassador in Brussels took soundings in NATO on the possibility of the Alliance taking officially note of treaties containing such provisions (a dispatch from the Polish Ambassador in Brussels , 18 March 1991). In that case, a Polish bid to join the Alliance would have been stopped at a very early stage . I rejected the Soviet suggestions. The new treaty concluded in 1992 with Russia did not contain any such restrictions . Eo ipso, Moscow's proposal to NATO became irrelevant. NATO Headquarters forwarded the Soviet suggestions to the members "immediately". What their reactions to it were I do not know. Summary and quotations come from the aforementioned conversation with Fried , Memorandum of 4 March 1991, DIE 2419/2 -912 (2). Statement by KJ. Peters, head of the Central and East European Section in the NATO Headquarters political sector, early March 1991.

Poland and the North Atlantic Alliance in 1991

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members of congressional committees on military and foreign affairs [. ..] opposed basic changes in NATO's mission or size" . This group "specifically rejected proposals that the military alliance expand to include new democracies in Eastern Europe , saying [that] such a move would destabilize the Continent by posing the potential of a military and political threat to the Soviets". 10 The members of the group included Senators Sam Nunn, William S. Cohen and Bill Bradley and Representatives Dave McCurdy and Lee H. Hamilton . During President Lech Walesa's visit to Washington in March 1991, the question of our membership in the Alliance was not discussed at any length. In the conversations in which I took part I indicated that, first of all, before the withdrawal of Soviet forces from Poland, and pending termination of the Warsaw Treaty and the bilateral political agreements concluded in the framework of the Eastern bloc, any talk of our membership in NATO was premature . I I Meanwhile our policy of freeing ourselves of the relics of the past was starting to yield its first fruits. By virtue of a Protocol signed on 15 February 1991 in Budapest by the Foreign Ministers of the States which were parties to the Warsaw Treaty, the military organs and structure of the Soviet bloc were dissolved. 12 This Protocol sealed the fate of that Treaty that had come about in another agreement,

10

International Herald Tribune, 4 March 1991, p. 2.

11

During these talks Secretary of State lames A. Baker III strongly emphasized the significance of setting a date for the withdrawal of Soviet troops. He did not think that a date later than the one Poland was then seeking (i.e., 1991) made much difference . The important thing, he said, was to have a specific timetable. See also an interview with me, 'Soviets' ex-satellites warming up to NATO', The Washington Times, 25 March 1991. During a conversation between President Walesa and United States Defense Secretary Richard Cheney on 20 March 1991 Slawomir Siwek, deputy chief of the President ial Chancellery, intervened to say that Poland did not intend to apply for NATO membership "this year". For further details of this conversation, see Kazimier: Dziewanowski, Polityka w sercu Europy [Politics in the Heart of Europe], Waszawa, 1995, p. 149. Dziewanowski was Polish Ambassador to the United States of America . In my recollection the conversation with Cheney ended according to schedule and was not, as Dziewanowski writes, cut short as a result of Siwek's remarks . After the conversation I indicated to Walesa that those members of his staff whom the President had not explicitly instructed to speak on foreign policy matters must refrain from doing so, while persons who did have such a mandate should not act until they had consulted with me or the Foreign Ministry . The President agreed with my position. I may add that my cooperation with Minister lanusz Ziolkowski, who was responsible for foreign relations at the Chancellery, was close and till my departure from the Government went very well.

12

Polityka zagranicma, p. 117. The dissolution was effective as of31 March 1991.

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i.e., the Protocol signed in Prague on 1 July 1991. The Warsaw Treaty ceased to exist. The Statement adopted in June 1991 in Copenhagen by the Foreign Ministers of the Alliance members'! indicated that any "form of coercion or intimidation" of Central and Eastern European countries would be treated as a matter of "direct and material concern" to the NATO members . They emphasised that "[o]ur own security [was] inseparably linked to that of all other states in Europe". Commenting on these determinations, NATO officials stressed that they were not intended to be a challenge to the USSR . They explained that the aim of the new Alliance policy would be to allay the security fears of Poland, Czechoslovakia, Bulgaria, Hungary and Romania, though the Alliance also assumed that by the same token it expected these States to cease considering the possibility of joining the Alliance . In the West's opinion enlargement of the Alliance would be treated by Moscow as a genuine threat." The Supreme Allied Commander in Europe, General John Galvin , explained that the Copenhagen statement did not mean that the Central and Eastern European countries had obtained "security assurances"." Speaking shortly after Galvin, Secretary-General Worner said in an interview for Deutschlandfunk" that he favoured close cooperation with the USSR in a process of creating all-European security structures. For this reason , Worner indicated, there was no question of opening NATO to East European countries such as Poland , Czechoslovakia, Bulgaria, Hungary and Romania. It must be impressed on these countries, Worner said, that something completely new was at stake, namely creation of a system of security incorporating the USSR . Despite all these restrictions and reservations (none of them, for that matter, new) the Copenhagen Statement represented a major step since it went some way to meeting our wish that the Alliance should not be indifferent to the threats that could arise in our region .

13

14

15

16

The Statement was entitled "Partnership with the Countries of Central and Eastern Europe". See note 6 above. in fine. Thomas J. Friedman , 'NATO Signals Security Shield for East Europe' , International Herald Tribune. 7 June 1991. p. I. Galvin made this comment during a visit to Prague on 13-14 June 1991. Nonetheles s, the above-cited Friedman (note 14 above) believed that at the Copenhagen Ministerial Session the Alliance "virtually extended its security umbrella to its former Warsaw Pact adversaries ". Reported by the Polish Foreign Ministry 's Department of Press and Information , 17 June 1991.

Poland and the North Atlantic Alliance in 1991

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On 3 July 1991, President Walesa paid an official visit to NATO Headquarters. This was not the President's first contact with Secretary-General Womer. When he was in Poland in September 1990,17 Womer also went to Gdansk to meet Lech Walesa; at that time, the latter still continued as chairman of the Solidarity Trade Union but was already a candidate for the office of President of Poland ; the presidential election campaign was underway. From the start, a good atmosphere developed between Walesa and Womer. Womer indicated to Walesa that the Alliance intended to adapt to new circumstances in Europe. In reply Walesa said that NATO ought to become a kind of "peace bloc". While remaining a defensive alliance NATO should be a co-architect of peace and security in Europe, at the same time responding to any looming threats. That would make it a "new-quality" NATO. This idea aroused Womer's interest ." He alluded to it during the President's visit to NATO Headquarters in July 1991. Walesa again had a talk with Worner on 3 April 1991 during his visit to Belgium, this time as President of Poland. Finally, Walesa came for a visit solely to NATO Headquarters on 3 July 1991, immediately after Poland had freed herself from the bonds of the Warsaw Treaty. In his speech Wal~sa referred to the Copenhagen Ministerial Session and stressed that "[w]hat we want[ed] [was] a partnership with the Alliance and we assume[ed] that working together [would] be further continued and developed" . He spoke briefly about the state of our relations with the Alliance and referred to our wish to deepen them. Walesa strongly emphasized the fact that our policy of coming closer towards the Alliance did not mean that Poland was acting or intended to act against any State. "We wish for one Europe . The Soviet Union has its place in it".'? A discussion followed. United States Ambassador Taft said that the North Atlantic Treaty Organization, the Western European Union and the CSCE were "interlocking institutions" in the field of European security and spoke in favour of "constructive partnership" between NATO and Poland . Germany's Ambassador

17

18

19

For a description of that visit, see my article in the Festschriftfiir Rauschning, note 2 above, pp. 402-404 . I thank the President's spokesman, Dr Andrej Drzycimski, for his account of the Gdansk conversation. While delivering his speech Walesa omitted a passage in the text which contained criticisms of the USSR on account of the slow pace of negotiations on the withdrawal of Soviet forces from Poland . However, the original text had been released earlier to Alliance Headquarters. Having concluded his speech, Walesa remarked sotto voce partly to himself, partly to me (I was sitting next to him): "Too bluntly put, wouldn't do" . This was one of the many occasions on which his cautiousness in foreign policy was revealed .

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von Ploetz indicated that NATO would "tomorrow" become "a pillar of security". He pointed out that Germany supported Poland 's admission to the European Union, but did not mention the possibility of NATO membership. According to Britain's Ambassador Sir Michael Alexander, "the West will not isolate itself from Poland"; in his opinion , Walesa's approach to Poland's relation s with NATO was "wise" . Following the Copenhagen decisions, NATO was performing a "cohesive role" and creating "a climate of security". The Norwegian representative Holst indicated that "Poland ha[d] an important stake in the process of peace. Peace [could] not be left to itself'. Belgian Foreign Minister Mark Eyskens stressed that "any threat to Poland [would] have very serious implications for the Alliance" and in this context cited the Copenhagen document. The NATO enlargement issue was not discussed, apart from a remark by Danish representative Enger that, although the Alliance was not ready to take in new members , it would nevertheless cooperate with States that were interested in such cooperation. After the dissolution of the Warsaw Pact on I July 1991, Poland began a transition in her relations with NATO: she went from "dialogue and contacts" to "regular meetings and consultations" (the so-called Hungarian Formula) . Walesa's visit to NATO Headquarters initiated this second stage, though it is hard to speak of a distinct watershed. The White House understood that since we still had Soviet troops on our territory (and also, I would add, across our border in Eastern Germany), we "could not yet aspire openly to the one organization - NATO - that would provide real security" .20That situation , however, was about to change.

20

Robert L. Hutchings, American Diplomacy and the End of the Cold War: An Insider s' Account of u.s. Policy in Europe, 1989-1992 , (The Woodrow Wilson Center Press, Washington D.C. and the Johns Hopkins University Press , Baltimore and London 1997), p. 171. Czechoslovakia and Hungary rid themselves of the Red Army presence in their territory more quickly and easily than Poland, but this fact did not give them any kind of advantage over us as far as NATO membership was concerned. In publi c utterances of this period, neither Budapest nor Prague pushed the idea of membership. In his New Year address President Havel declared: "We are also intent on close cooperation with NATO, although for the time being we are not planning to join this organization" , Biuletyn Specjalny PAP, 2 Jan. 1991. Testifying before the Hungarian Parliament's Foreign Affairs Committee, David Meiszter, Under -Secretary of State at the Foreign Ministry, said that Hungary wou ld not accede to the Alliance, which in any case would not admit it, but that cooperation with its various bodies was an important element of the design of Hungary's foreign policy, ibid ., I Mar. 1991. In an interview given

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II. On 19 August 1991 there was an attempted coup in Moscow. It was led by L Yanayev, Vice-President of the USSR, who headed a coup body, the "State Committee for the State of Emergency" to which his associates belonged. The coup took place shortly before Gorbachev was due to return to Moscow from a holiday in Crimea to sign a new union treaty providing for the decentralization of the USSR. Among other things, the coup leaders wanted to prevent the State from being so reformed. The coup had in fact been long prepared, but Gorbachev seemed to have disregarded the rumours. In response to a Dutch call for an immediate meeting of the North Atlantic Council, US Secretary of State Baker suggested a postponement for a few days. The reason was the need not only to have a better picture of the facts," but also to prevent the coup initiators from transforming the crisis into an East-West conflict. Baker believed a meeting of the CSCE was equally advisable : it would, he thought, afford an opportunity to exact from the coup leaders compliance with the Helsinki principles and the Charter of Paris." The Moscow coup showed the West that the course of events in the USSR was unpredictable and could take dangerous turns. The coup also foreshadowed the

to the Paris daily Le Monde shortly after the Copenhagen Ministerial Session of the North Atlantic Council , Hungarian Prime Minister Jozsef Antall stated that "it would be unrealistic for the former socialist countries to join right now. A system of European security has therefore to be created; it would derive from the Helsinki processes [sic] and would be based on bilateral treaties both with the USSR and with our neighbours and the Western countries". ibid.,4 June 1991. The Hungarian Prime Minister was echoed by Tamas Katona, Secretary of State at the Foreign Ministry, who indicated that following the dissolution of the Warsaw Pact, NAID would also have to change its structure. In his view, Central and Eastern European countries were entertaining vain hopes ofjoining NATO. Hungary, he said, did not even intend to try to accede to the North Atlantic Treaty but believed it necessary to maintain regular relations and pursue consultations with it, ibid., 6 June 1991. 21

22

From the start, Bush and Baker did not exclude that the coup would be reversed . Indeed it was, but not before irreparable damage was done to Gorbachev's position . From then on, Boris Yeltsin became for several years the principal actor on the Moscow political stage. In a telephone conversation with President Bush, President Prancois Mitterand of France assumed that the "coup could fail in a few days or months" , see George Bush and Brent Scowcroft , A World Transformed (Knopf, New York 1998), p. 520 . Adopted at a CSCE summit on 21 November 1990 under the name "Charter of Paris for a New Europe".

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imminent disintegration of the Soviet colossus. As a result, the West began to give more systematic consideration to the States of Central and Eastern Europe into its security structures. Actually, thanks to an American-German initiative, that process had begun earlier.v but came to life only after the Moscow coup. The Moscow coup corroborated Poland's fears regarding Soviet policy. We kept impressing on the West the dangers arising in the East. The new tum of events in the USSR began to have some impact on the position the Alliance adopted at an emergency NATO ministerial session in Brussels in August 1991. In a telephone conversation with Walesa during the coup , President Bush assured him that the democratic process initiated in Central Europe could not be reversed . Bush spoke with Czechoslovak President Havel and Hungarian Prime Minister Antall in the same sense. While Walesa did not fear a Soviet invasion, Havel was less certain. It was obvious that the coup meant that the cautious Western proposals adopted in June 1991 at Copenhagen were not enough. The United States and Germany were working on new forms of rapprochement between the former Warsaw Treaty members and NATO, with some preferential treatment accorded de facto (though not formally) to the Visegrad Triangle (Czechoslovakia, Hungary and Polandj.> In a joint statement issued on 2 October 1991 as a result of his visit to Washington, the German Foreign Minister Hans-Dietrich Genscher and Secretary of State Baker presented certain proposals for intensifying cooperation between NATO and the States of Central and Eastern Europe. In particular, the two statesmen proposed participation by the countries of Central and Eastern Europe in the NATO Political Committee and Economic Committee. They also put forward a plan to

form a North Atlantic Cooperation Council (NACC). A good opportunity to express our response to the American-German initiative soon presented itself. On 5 October 1991, I chaired a meeting of the Foreign Ministers of the Visegrad Triangle in Cracow (the meeting took place on the eve of a Triangle Summit). The three Ministers welcomed the Baker-Gcnscher initiative . Further, they

23

I.e., before the Copenhagen meeting. Despite some French opposition resulting in a diluted United States-German proposal, it was agreed in Copenhagen that liaison with non-members would be increased and dialogue with them deepened and that they would participate in some NATO activities, in particular, in airspace control. NATO was also interested in contacts relating to "issues connected to civilian oversight of defence" in those countries.

24

The Alliance's cautious new policy was, as Hutchings observed, "[tlrying to square the circle between Soviet sensibilities and Central and Eastern European nervousness," (note 20, p. 290). The tripartite cooperation takes its name from the place in Hungary where the highest representatives of the three countries signed two instruments establishing their special relations.

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[e]xpressed satisfaction with the present growth of contacts with the Alliance and agreed that developments in both Central and Eastern Europe and the Balkans require raising these contacts to a qualitatively higher level. There is no place in Europe for different kind s and different degrees of sec urity; security should be identical for all. The Foreign Mini sters take the view that the formula of contacts ("diplomatic liaison") hitherto-applied needs to be substantially widened in order to create conditions for direct inclusion of the Republic of Poland, the Czech and Slovak Federal Republic and the Republic of Hungary in the activities of the Alliance. In particular, the last words of the foregoing text were a clear signal that the three State s were intent on membership. In October and November 1991 (that is, before NATO's Rome Summit), I and my aides deliberated on "[t]he possible substance and chances of a cooperation agreement between Poland, Czechoslovakia and Hungary, on the one hand , and the members of the North Atlantic Alliance on the other," After the Cracow meeting, Czechoslovakia suggested in a statement issued on 15 October 1991 that cooperation with NATO be placed "on a clearly defined footing , preferably in the form of an international treaty " or "political document to be signed by heads of States or Governments [or by] foreign ministers". At the Foreign Ministry we were conscious of the difficulties inherent in the drafting of such an instrument. The views of NATO members on the extent of cooperation with Central Europe varied . Protracted negotiations would not only be damaging to the idea of such an agreement but might also impede interaction with NATO in the existing framework, i.e., without a formalized text. 26 Chances of separate cooperation with the Visegrad Triangle (i.e., deeper than with other States) could and did exi st in practice, but adopt ion of a formal instrument to that effect was something else, especially as the new cooperation with NATO would also involve the USSR (Russia). It should be remembered that the Baker-Genscher initiative embraced all the States of "the East", the USSR (Russia) included. Basically, in the period between the coup and the dissolution of the USSR, the fundamental issue for the West was democratic reform in the USSR

25

26

"Working Material" of 29 October 1991 prepared bythe Directorof theDepartment of European Institutions, Andrzej Towpik. DirectorTowpik put forward the suggestion that non-member States be covered by the first fourarticles of the WashingtonTreaty; this would be a kindof associationwithNATO "treated as a provisionalarrangement in anticipationof accessionto thewhole of theTreaty", lac. cit.

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and the extent of cooperation with it. At that time, differentiation of cooperation in favour of the Visegrad Triangle, though perceived as a de facto possibility, was not part of the Alliance's agenda . On the other hand, I was aware of the risks of differentiation: it might easily lead to the marginalization of other States of the former bloc and also of the three Baltic republics , not to mention Ukraine , which aspired to independence. Our stance was that it was not desirable for NATO cooperation with these States to be weaker: we wanted an increase of NATO influence in the whole region. Nevertheless, in view of our national interest and the realities in that part of Europe, we argued for closer cooperation between NATO and the Visegrad Triangle . We tried to combine such a policy with close cooperation with the other States of the region.

III. This is not the place for a full discussion of all the results of the NATO Summit in Rome on 7 and 8 November 1991. The Summit adopted a lengthy document entitled "The Alliance's New Strategic Concept" and a separate text devoted to developments in the USSR. Of greatest interest to us was still another instrument, viz. the "Rome Declaration on Peace and Cooperation" which reiterated the principal elements of the "new strategic concept". The Declaration contained, inter alia, a chapter on "[r]elations with the Soviet Union and the other countrie s of Central and Eastern Europe : a qualitative step forward". The latter words, no doubt , carried a promise . In the Declaration, the NATO members emphasized that "our own security is inseparably linked to that of all other states in Europe" (paragraph 9). "The Alliance can aid in fostering a sense of security and confidence in these countries, thereby strengthening their ability to fulfil their CSCE commitments and make democratic change irrevocable" (paragraph 10). The Alliance said that it intended "to develop a more institutional relationship of consultation and cooperation on political and security issue s", including regular meetings at different levels; the most notable decision on the "institutional" aspect was the creation of the North Atlantic Cooperation Council consisting of "annual meetings" of non-members with the North Atlantic Council (paragraph 11).The Alliance members stated (paragraph 12): Our consultations and cooperation will focus on security and related issues where Allies can offer their experience and expertise , such as defence planning, democratic concepts of civilian-military relations , civilian/military co-

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ordination of air traffic management, and the conversion of defence production to civilian purposes . Both the document setting out the "new strategic concept" (paragraphs 13-15) and the Rome Declaration (paragraph 19) pointed to "the global context" and the Alliance's commitment to responding to "risks of a wider nature". The texts adopted by the Rome Summit enumerated a number of specific security risks, namely proliferation of weapons of mass destruction, disruptions of the flow of vital resources and acts of terrorism and sabotage. This was a sample list exemplifying NATO' s new tasks . Later, after Poland had publicly announced her wish to join the Alliance, I advocated an expansion of this list." The results of the Rome Summit were the outcome of a compromise that was reached among the Alliance members . Owing to the stance s of France and some other States, the Baker-Genscher proposals could not go any further. France tended to minimize the significance of the new Council and was reluctant to entrust it with security matters since , according to Paris, the Alliance still had functions in the field of defence, not security . France was against involving NATO structures in the discharge of the tasks of the Cooperation Council. Belgium, the Netherlands and Luxembourg feared that the Council and its activities might weaken the Alliance itself and limit the role of the CSCE . At the same time these States did not oppose the participation of the Alliance structures in the work of the Council. As regards the CSCE , Germany wanted to see the Council as a support for the CSCE in the security sphere . A similar view was taken by Italy. Simultaneously, we were given to understand that the Council was not an instrumentality of NATO expansion to the east: such expansion was out of the question."

27

28

I did this in 1992 and 1993 both in conversations with representative s of NATO member States and the Secretary-General and in statements for the press and lectures delivered abroad . That is to say, I argued for NATO undertaking an active role in peace-keeping operations, enforcement actions and creation of elements of peaceful settlement of conflict situations. In this connection I indicated that it would be necessary to lay foundation s for regular cooperation betwe en the UN and NATO in peace-keeping and, possibly, enforcement operations. I also noted that it would be desirable if NATO could playa more decisive role in creating a new military order in Europe . For an explanation of that concept, see Polityka zagraniczna, pp.387-388. These positions were reported by, inter alia, a dispatch from Ambassador Nowak in Vienna of 15 December 1991. At the Foreign Ministry we had confirmation of this information from other sources as well.

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It is to be noted, however, that in the Alliance there were voices that went further, even before the Rome Summit. Thus , speaking at the centenary celebrations of Stanford University in Palo Alto , California on 1 October 1991, Canadian Prime Minister Brian Mulroney argued for the admission of the Visegrad Triangle States to the Alliance. It was his view that the United States should assume leadership in security matters in the Triangle region." This was a highly noteworthy statement though in more specific conversations Canada did not go as far as might have been expected if one adopted a literal interpretation of Mulroney's words. During their talks at the Foreign Ministry in Warsaw on 18 November 1991, Canada's Ambassador to NATO, James Bartlernan, and the Director of the Defence Department at the Canadian Foreign Ministry, D' Arcy Thorpe, concentrated on the results of the NATO Rome Summit and Poland's future relations with NATO, including the upcoming meeting of the North Atlantic Cooperation Council. They said that it was urgent that we should submit comments and suggestions concerning "the political dimensions of security". At the same time, the Canadian representatives did not respond favourably to our tentative proposal to base relations between Poland and NATO and its members on the first four articles of the Washington Treaty of 1949. 30 That proposal was conceived as a step in the efforts to carry forward the policy which I had adopted at the start of 1990 and which aimed at engaging the Alliance in protecting our security until such time as new institutional arrangements , not excluding NATO membership, came into consideration. According to Ambassador Bartleman, "the Soviet diplomacy is satisfied with the establishment of the Council but [in his opinion] the biggest beneficiaries will be the 'Visegrad TriangleStates," Closer cooperation between these States and NATO was also recommended by the Council for Peace and Security, an advisory body to the Dutch Prime Minister. The Council saw ways in which such cooperation might be institutionalized, specifying the possibility of "associate" membership with a prospect of full membership down the line . The Council was in favour of promoting military cooperation with the three States on a treaty basis .F

29

Press reports sent by the Polish Consul -General in Los Angeles of the same date .

30

See note 26 above .

31

The foregoing summary of the Canadian-Polish talks is based on an account given me by Director Zbigniew Lewicki on 19 November 1991.

32

volkskrant , 10 November 1991; disp atch from the Polish Embassy in The Hague of the same date .

Poland and the North Atlantic Allian ce in 1991

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More important still, it was clear from information received by the Foreign Ministry that the US position was also evolving. During his visit to Washington on II September 1991 Prime Minister Bielecki had learned from the White House that for the time being, there could be no question of Poland (or other States) joining the Allianc e. About two months later, the message changed . Ambassador Dziewanowski brought to my notice statements by President Bush and other members of the American delegation to NATO's Rome Summit that there was a possibility of expanding the Alliance to the east of Germany. Dziewanowski's source was the above-cited Hutching s, who had told him that, though enlargement was not envisaged in the immediate future, it was nevertheless something that Washington was treating "very seriously" and that a basic decision was in the making, though without specification of any date. From another source in the United States National Securit y Council there came corroboration of this assess ment.33 On 4 December 1991 I wrote to Secretary of State Baker about the new stage in our cooperation with NATO and about our expectati ons. Commentin g on that letter, the Department of State intimated convergence between their proposals and mine." On 16 December 1991 (that is, shortly before the inaugural meeting of the Cooperation Council), Baker wrote to me, presenting at length an action plan to follow up the decisions of the Rome Summit. Baker indicated that his aim was to make these decisions "operational" and to expand the existing liaison programm e between NATO and non-member States. This programm e, Baker wrote, "is the concrete expression of our coo perative relationship't" The position which I personally and the Polish Foreign Ministry presented to NATO member s and its Secretary-General " after the Rome Summit and before the inauguration of the NACC was as follows. In our view, the Rome Summit was a continuation of the policy adopted in the London and Copenhagen Declaration s. The Alliance was clearly evolving, without detracting from its defence function, into an institution with Europe-wide concerns. The Alliance should (we thought ) become a major factor in stabilizing the situation in Central and Eastern Europe .

33

Paragraph 6 of a dispatch from the Embassy in Washington, 12 December 1991, recountin g a conversation between Counsellor Maciej Kozlow ski and Barry Lowenkron of the NSC.

34

Ibid., paragraph I . See also note 46 below.

35

Baker added: "1 want to write to you to set out my ideas for achieving this goal, solicit your thoughts on this agenda, and encourage your active participation in NACC preparations" (NACC is the English acronym for the North Atlantic Cooperation Council).

36

I met with Worner on II November 1991 in Brussels.

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Cooperation between NATO and the countries of this part of the continent should be effective and the impact of NATO on this area weighty. We suggested that the Alliance have an insight into the affairs of this region . At the same time, we were committed to preventing the isolation or self-isolation of the still extant USSR. This State would be anchored in the framework created by the Euro-Atlantic structure - an action pursued in parallel to the CSCE. We drew attention to the fact that the Rome decisions applied to the same area that was covered by the Treaty on Conventional Armed Forces in Europe (CFE) and the Joint Declaration adopted in Paris on 19 November 1990. We felt that it was already possible to speak of a "common security space". We believed that the document which was to be adopted at the first meeting of the North Atlantic Cooperation Council should "deepen a sense of community and co-responsibility for security". Here we again referred to our suggestion to base relations with NATO on the first four articles of the Washington Treaty without in any way detracting from our continuing and systematic efforts to get the Alliance involved in upholding the democratic changes which had taken and were taking place in our region. We were of course conscious of the fact that our desire for intensified cooperation with NATO was arousing opposition not only in the East but also in the West. We strove therefore to overcome this opposition. The new NATO mission emerging from the decisions taken by the Alliance in 1991 was, we thought, of immense significance for stability and security in Europe, including Poland. With regard to the changes in the USSR we took the view that the Alliance ought to exert influence on their course." When meeting with Womer after the Rome Summit, I mentioned to him that we would like an official visit by the Polish Prime Minster to NATO to take place in the first quarter in 1992.38 In the meantime arrangements were made for visits by the Chairman of the NATO Military Committee, General V. Eide, and the Supreme Commander of Allied Forces in Europe, General John Galvin. We also wanted visits to Poland by the Assistant Secretary-General for Political Affairs, Gebhardt von Moltke, and the Assistant Secretary-General for Defence Support," Philip Merrill. Moreover, a date had been set for a NATO seminar in Warsaw devoted to the political and military situation of the Central and Eastern European States with

37

See a brief prepared by the Department of European Institutions for talks on Poland-NATO relations, 9 November 199 I .

38

See note 36 above. As to that visit, it did not come about until the last quarter, namely on 7 October 1992.

39

I.e., armaments and equipment of the Alliance 's military forces .

Poland and the North Atlantic Alliance in /99/

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the participation of representatives of Czechoslovakia and Hungary. We were also hoping for cooperation in science and technology. During his visit to NATO Headquarters, Deputy Defence Minister Janusz Onyszkiewicz was received on 2 December 1991 by Womer. Onyszkiewicz raised a specific problem relating to our efforts to persuade the Alliance that it could not remain indifferent to a threat to our security. Having first consulted me , Onyszkiewicz asked Womer whether Poland, in the event of an attack against her, could count on arms supplies from NATO; these would comprise equipment other than that covered by the CFE Treaty. Womer found Onyszkiewicz's point "very interesting" and promised to discuss it with the Alliance's military commanders. He said that in the event of "open aggression" against a country like Poland [sic] "one has to find a solution" because "NATO could not simply stand idly by". He also indicated that the knowledge that in case of this kind of crisis Poland would be supported by the Alliance could constitute an "element of prevention", that is, could deter aggression or intervention. All this was exactly what I had been seeking since early 1990 when trying to convince the Alliance that it could not remain indifferent to a threat to our security. The question put by Onyszkiewicz was more likely to elicit a positive response from NATO as supplies of military equipment would not automatically drag the Alliance into a conflict with the aggressor, though in our view such an option ought not to be excluded." It may be added that Onyszkiewicz made the proposal for an arms deal with NATO irrespective of Poland's interest in buying some of the equipment left behind by the armed forces of the former German Democratic Republic.

IV. The inaugural meeting of the North Atlantic Cooperation Council took place on 20 December 1991 in Brussels at the level of foreign ministers (the USSR was

40

Dispatch by Ambassador T. Olechowski of the same day. See also J. Onyszkiewicz's reminiscences : Ze szczytow do NATO. Z ministrem Obrony Narodowej rozmawiajq W Beres i K. Burnetko [From Mountaintops to NATO. W. Beres and K. Bumetko talk to the Minister of National Defence) (Bellona, Warszawa 1999), p. 120. Onyszkiewicz was a long-time opponent of communist rule in Poland and a prominent member of the Solidarnosc leadership . He became Deputy Minister of Defence in 1990, the first civilian to hold this office in Poland. Subsequently, he served as Minister of Defence (1992-93 and 1997-2000) . Onyszkiewicz was a well-known mountaineer - this explain s the title of his memoir s.

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represented by an ambassador, though Shevamadze had earlier promised to attend). Aside from the 16 NATO members, the following non-member countries were present: Bulgaria , Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and the USSR. In the course of the debate the news came that the USSR had dissolved itself." The delegate of that now former State asked that it be excluded from the list of participants'? as well as for the exclusion of all references to the Soviet Union from the text of the NACC Statement." For all those present, and especially for the representatives of the Great Powers and the former Soviet bloc countries, it was a historic moment , not least because of the venue: it was at NATO Headquarters that they learned of the disintegration and disappearance of the USSR . And the peaceful nature of the whole operation was amazing.

41

42

43

The failed coup ofYanayev and his associates speeded up the dismemberment of the Soviet Union, a process which had begun earlier. After the coup , eleven Soviet Republics followed the earlier decisions of Lithuania and Georgia to withdraw from the Soviet Union . By 27 Augustl991 , only Russia and Kazakhstan remained . The confirmation of the independen ce of Ukraine in the referendum of I December was decisive. On 8 December 1991, Ukraine , Russia and Byelorussia (Belarus) signed the Agreement establishing the Commonwealth of Independent States (CIS) which was also open to other Republics . On 12 December, the eight non-Slav Republics joined that organization. Meeting in Alma Ata, all II Republics signed an instrument which was dated 2\ December on the CIS (the three Baltic Republics and Georgia did not enter that association); that was the end of the Soviet Union. It was agreed that the formal date of the dissolution would be 31 December 1991. For these and other texts relating to the dissolution of the USSR, see International Legal Materials, vol. 31, 1992, pp. 138 ff. See also H. Carrere d'Encausse, La Gloire des nations au la fin de I 'Empire sovietique, Nouvelle edition augementee, Livre de poche , (Fayard, Paris 1991), pp. 451 -456; and M. Hilderneir, Geschichte der Sowjetunion 19/7-1991. Entstehung und Niedergang des ersten sozialistischen Staates, C.H. Beck, (Miinchen 1998), pp. 1055-1059. To this request Womer replied that it was too late to change anything as the relevant text had already been released. Ambassador Afanassievski remarked that he was informed of the events by telephone and had received the new instructions in the same way. It may be added that it was obvious that he had not been in a position to act earlier. The Greek Foreign Minister suggested a corrigendum to the NACC Statements . However, the list remained as it was. The "Soviet" Ambassador did not leave the meeting and in the NACC Statement he was listed after the Foreign Ministers as "the Representative of the Soviet Union" (paragraph I) . See also NATO Review, vol. 40, No.1, February 1992, p. 29, footnote . There remained a reference to the " [a]uthorities in the Soviet Union" in the ultimate subparagraph of paragraph 3 of the NACC Statement.

Poland and the North Atlantic Alliance in 199/

917

"The Soviet Union's quiet death is still one of the most stunning events in modem history"." The USSR Ambassador next presented a letter from the Chairman of the Supreme Council of the Russian Federation, Boris Yeltsin, in which he expressed Russia's interest in an eventual accession to the Alliance. The fact that the USSR had ceased to exist had an extraordinary significance for Poland. At that very moment the secular geopolitics of her eastern side were dramatically changing in her favour; there was now no big empire as her sole neighbour there. Yet the advantageous nature of this development had its limit. Among various potential menaces there were the unstable power structures of post-Soviet States, looming economic crises, the growth of nationalism , and proliferation of nuclear weapon s. In the new situation , the future of the vast post-Soviet area was highly unclear. Thus, when addressing the meeting I had those fears at the back of my mind. I stressed that the Council should be a forum for regular discussions and, in crisis situations, urgent consultations; there were dangers that could arise, and I specifically pointed to the eastern part of Europe . I said that Poland expected the Council to contribute to stabilizing this part ofthe continent. Poland "perceive[d] the functions of the Council more broadly than only in terms of post-cold war rehabilitation and reconciliation" . I expressed the hope that there would be cooperation with NATO in tackling specific problems, particularly in the political , military, civil defence and economic (i.e., arms industry) fields. Consequently, "there was also room for meetings involving departments of defence and general staffs" . In response to one of the points raised by Womer in his opening statement I added that "such meetings could include the ministers of defence " (this is what indeed soon happened) . I declared Poland 's interest in participating in the Atlantic Policy Advisory Group (which was chiefly responsible for policy planning) and invited the Group to hold one of its next meetings in Poland. Referring to NATO's intention "to further strengthen the CSCE", I observed that "[tlhe interrelationship between these two structures should be carefully considered". I took the floor again to address some points raised by other Ministers . In particular, I agreed with the French Minister, Roland Dumas, on what he had said about the relations between the CSCE and the NACC. In particular, I emphasized

44

Philip Zelikow and Condoleezza Rice, Germany Unified and Europe Transformed: A Study in Statecraft. (With a New Preface) (Harvard University Press, Cambridge, Mass . and London 1998), p. 365.

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the absence of any "competition or contradiction" between the two and added that there would be always room for NATO, even if in future an all-European system of collective security began to function ("Meme si dans l'avenir un systeme de securite collective englobant toute l'Europe commence a fonctionner, il y aura toujours de la place pour l'OTAN").As Dumas again raised the issue of transforming some CSCE norms into legally binding rules, in particular those on settlement of disputes, I repeated Poland's support for that proposal." Further, in the context of the new situation in the territory of the former Soviet Union where suddenly four States became nuclear powers (Federal Russia, Belarus, Ukraine and Kazakhstan), I stressed the importance of the ultimate subparagraph in paragraph 3 of the NACC Statement dealing with nuclear weapons." Finally, referring to a point raised by the United States, I said: Secretary of State Baker spoke of the link between devolution and evolution, and of the difficulty it raises in Eastern and Central Europe . It is true that there is that difficulty. However, there are areas in that part of Europe where there is also some progress and some success in achieving stability. I am referring in particular to the effort of creating new regional arrangements. One of them is the triangular cooperation among Czechoslovakia, Hungary and Poland. These countries are now associated with the European Community, which fact constitutes an additional factor of stability and predictability in their policies. To sum up my thinking at that time, I considered the establishment of the Council a token of the Alliance's greater openness to the Central and Eastern European

45

46

After preliminary consultations with Robert Badinter, President of the Constitutional Council and former Minister of Justice of France , who drew up a draft text regarding the resolution of disputes, Poland participated in negotiations and signed the Stockholm Convention of 15 December 1992 on Conciliation and Arbitration within the CSCE . For various reasons, some States were opposed to concluding treaties under the auspices of the CSCE in general , e.g., the United States of America, or, in particular, to a new treaty on conciliation and arbitration as (in their view) there already existed such mechanisms and States could use them at any time. The Ministry of Foreign Affairs submitted a number of suggestions prior to the drafting of the first version of the Statement and then some comments on this draft. Several of our proposals were accepted. See also note 34 above: in the Kozlowski-Lowenkron conversation the latter had said that the United States proposals regarding NACC and, generally , the then stage of relations between NATO and non-member countries were convergent with those in my letter of 4 December 1991 to Baker, in particular with regard to the mechanism of calling NACC meetings (paragraph 1 of the dispatch) .

Poland and the No rth At lantic Alliance in 1991

919

countries, a goal I had been systematically pursuing since 1990. The Council's future was hard to define. Secretary of State Baker had made a special point of the Alliance 's interest in building a communit y of States "from Vancouver to Vladivostok". Might this not be too ambitious a project and should not cooperation in that vast area be left to the CSCE? What could the Council's role be? The basic question for Poland was whether, by establishing the Council, the Alliance was assuming, at least to some degree, responsibility for the security of especially those European countries which bordered the North Atlantic Treaty area. Whatever the answer, it was necessary, from our point of view, to make the most of the Council for expanding the existing links with the Alliance and forging new ones. For, as conceived by its architects and as stated in the instrument adopted at its first meeting, the purpose of the Council was to supplement the "interlocking network " of institution s (paragraph 3) hitherto available to advance a new and lasting peaceful order in Europe (CSCE, NATO, European Communit y, Western European Union and Council of Europe ). The NACC Statement spoke of consultations and cooperation within the Council. Also, NACC members which were not member s of the Alliance would participate in some NATO programmes. In terms of stability, unresolved problems and distinct aspirations of various States, the NACC formula did not take account of the actual diversity of the area within its purview. The Visegrad Triangle countries were seeking the closest possible cooperation between them and the Alliance. They had to make an effort to prevent their wish for alignment with the Alliance from being diluted in a body which would comprise very different partners." This became especially clear after invitations to join the Coun cil were extended to the former Asian republ ics of the defunct USSR in March 1992. Basically, by expandin g excessively, the Council engineered its own weakness.

v. As a result of general elections in Poland a new Governm ent was formed by Jan Olszewski . The draft statement of 17 December 1991 on the policy of that

47

Michael Mandelbaum, The Dawn of Peace in Europe (The Twentieth Century Fund Press, New York 1996), p. 101, places the NACC within the confidence-building measures as its function is "to promote transparency". Without denying that such was one of its functions, the NACC could not have been reduced to that task alone, in any case not in the eyes of the Visegrad countries.

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Government" to be made in the lower house of parliament (the Sejm) included the following passage concerning the North Atlantic Alliance : We will strive to obtain the status of associate member of the Western European Union in order to attain thereby a common platform with the North Atlantic Treaty Organization (NATO) which we consider a key factor in European security. The phrase "common platform" was not clear and it did not portend an institutional relationship with NATO. In the quoted passage and elsewhere in the text there was no hint of any plan by Poland to seek NATO membership. The draft made no reference at all to the North Atlantic Cooperation Council, yet since this body had just come into existence some mention would have been in order. On the other hand, if, as the text vaguely suggested, Poland had set course for NATO by way of the WED, she would to this day still be outside the Alliance. For the road to the Alliance did not lead through the WED. Whoever drafted the quoted passage must have been patently unaware that when he wrote it, associate membership of the WED did not exist. It came into being only later, that is to say, under Declaration IT adopted by the WED members on 7 February 1992 in Maastricht. And associate member status was then offered solely to those States which were NATO members but did not belong to the WED . In other words, the reverse of the assumption implicit in the cited passage was true: the road to the WED lay through NATO. To become an associate member of the WED, one first had to become a member of the NATO. Thus, seeking a place in NATO through the WED was not, to say the least, a fortunate idea." Having requested and received a copy of his text, I submitted to Prime Minister Olszewski an alternative version . All this happened at literally the last minute; I

48 49

I was not consulted on this draft. Nor was anybody else in the Foreign Ministry. This was not the only shortcoming of that part of the statement which dealt with foreign affairs. The draft skirted some crucial matters (e.g. Polish-American relations) and needlessly touched on others, for instance , it put forward "proposals" for talks between Poland, Lithuania and Russia "on the subject of' the Kaliningrad Region; under no circumstances was this a topic to be brought up in public, not least because Poland was in the course of negotiating an agreement with the USSR (Russia) on cooperation with the Region. It was signed in 1992. As to the WEU, since 1990, the Polish Foreign Ministry has been in regular contact with it. For details , see my article in Sprawy Miedzynarodowe. 1991, No.1 , at pp. 43-44.

Poland and the No rth Atlantic All iance in 1991

921

had returned from the meeting at NATO Headquarters on the evening of 20 December and Prime Minister Olszewski was due to deliver his policy statement early the following afternoon. The passage devoted to the Alliance in my text went further than the Olszewski text. It read as follows: As a member of the North Atlantic Cooperation Council , Poland will tighten her ties with the North Atlantic Alliance. In the present situation we consider this Alliance to be a pillar of European security, while the presence of US forces in Europe is a stabili zing factor. The Government will work towards comprehensive expansion of the links with NATO that are made possible by our membership in the North Atlantic Cooperation Council. This will be a policy of gradually binding ourselves to the Allianc e and by the same token enhancing our security. Prime Minister Olszewski accepted this text but with one - rather startling - exception. That is to say, Olszewski omitted words in the last sentence saying that "[tlhis will be a policy of gradually binding ourselves to the Alliance" ." This was, it see ms to me, a substantive point since my text was thus open to the interpretation that our policy perspective embraced membership. At that particular juncture, Olszewski's vagueness and caution did no harm . As he omitted even so circumspect an allusion, he simply refrained from giving any hint of a future bid for Alliance membership. Let me add that for the most part, Prime Minister Olszewski incorporated my draft in his policy statement. However, he did omit a reference to the role of the CSCE. Leaving aside the fact that the Alliance and its members had been continually stressing the importanc e of the NATO-CSCE cooperation, the Prime Minister was plainly unaware that it was in the CSCE Final Act signed in 1975 that the USSR had first agreed to, inter alia, the principle that every State was free to determin e what alliance it chose to jo in. I believed a reminder of this commitment would have been to the point.

50

Sejm RP, Kadencja I, Sprawozdanie stenograficzne z 3 posiedzenia 21 grudnia 1991, p. 6 [Stenographic record of the 3rd meeting of the Sejm , 2 1 Dec. 1991) .

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VI. To conclude, it should be recalled that in 1989 and 199051 Poland opposed a neutral status for a united Germany and was in favour of the whole of Germany becoming part of the NATO area ." Until the dissolution of the USSR, NATO membership of Poland or of any other newly-democratic State in Central and Eastern Europe, including the Baltic region, was not a matter of practical or realistic politics. But seen from today's perspective, when the eastern enlargement of the Alliance is already a fact, without the unification of Germany there would have been no room for a policy of enlargement, either. Enlargement had several preconditions, and the solution of the German question was one of them. Prior to the disintegration of the USSR , my thinking was that the Polish road to NATO (and taking that road was then still highly hypothetical) would lead through Poland 's membership in the European Community. Hence it still had a long way to go. The disappearance of the USSR unavoidably changed that thinking . New security imperatives were created . The United States was the first Alliance member to realize that admission of the countries forming the Visegrad Triangle was no longer the exclusive domain of political writers inventing various scenarios. It suddenly became an option of the RealpolitikF' At any rate, the policy pursued in 1990 was continued in 1991, i.e., systematically convincing the Alliance that it had an interest in maintaining and supporting the independence and security of the reformed Central and Eastern European countries. What was done in 1991 amounted to strengthening the stance that those countries could count on a measure of assurance on the part of the Alliance .

51 52

53

See note 2 above . It is the area defined in Article 6 of the North Atlanti c Treaty. In case of armed attack in that area on one or more of the Parties to that Treaty, it is considered an attack on all Parties . In the Kozlowski-Lowenkron conversation the latter, while making it clear that he was expressing his personal view, indicated that Poland's entry into NATO could become a question of a not too distant perspective, while possible troubles, e.g., in Ru ssian-Ukrainian relations, might even speed up that proce ss. See paragraph 6 of the dispatch cited in note 33 above .

41

THE CONTRIBUTION OF THE FEDERAL REPUBLIC OF GERMANY AND THE GERMAN LANDER TO THE WORK OF THEICTY Peter Wilkitzki I

I. ESTABLISHMENT OF THE TRIBUNAL During the second half of the twentieth century, the idea of having serious violations of humanitarian international law tried by an international criminal tribunal presented a challenge to academics in the fields of international law and criminal law, and here perhaps more so to German academics than to those of any other nation since one of the "test runs" for this project, the Nuremberg Trials, had actually taken place on German territory and had dealt with crimes committed by Germans . The very fact that these trials never quite escaped the odium of "victors justice" gave rise to an intensive search for ways of dispensing international criminal justice free of any reproach of partiality. Hence German criminal law academics, first and foremost their doyen HansHeinrich Jescheck , whose work is just as closely associated with the "Association Internationale de Droit Penal" (AIDP) - the NGO that has been spearheading attempts for decades to establish an international criminal jurisdiction - as that of Cherif Bassiouni, argued passionately about how to realise this great dream . By contrast, the political arena in the Federal Republic of Germany was dominated by reservations and doubts - which was very understandable in a world marked by conflicts and the mistrust engendered by the cold war.

1

This contribution presents the author's personal opinion and not necessarily the views of the German Federal Ministry of Justice . It is a report on practice and does therefore not contain any footnotes .

L.c. Vohrah et al. (eds.), Man's Inhumanity to Man, 923-934 ©2003 Kluwer Law International. Printed in the Netherlands.

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This changed abruptly when the EastlWest polarisation came to an end at the beginning of the nineties and when the tragedy of devastating ethnic conflict struck the Balkans, as Yugoslavia started to fall apart . As regards the United Nations' subsequent endeavours to respond to the atrocities of this conflict with more than just by making appeals and setting up commissions, the policy pursued in reunified Germany, particularly German foreign policy under the leadership of former Foreign Minister Klaus Kinkel, was notable for their active commitment. Germany was one of the early advocate s of the establishment of the Tribunal at the London Conference (August 1992) and played a decisive role in getting United Nations Security Council resolutions 808 and 827 of 22 February and 25 May 1993 off the ground, the resolutions that covered the establishment of the ICTY and the formulation of the Statute. This commitment presented the German ministerial bureaucracy with challenges of a special nature: - the important decisions on the Statute of the ICTY were taken in the United Nations Security Council, on which Germany is not represented; - what was envisaged related to a completely new kind of legal subject-matter and was also largely oriented towards the "common law" , the legal concepts of which are mostly alien to German legal theory; - for the examination of new proposals - requiring a complex process of reaching agreement amongst various national agencies - there were often only a few hours available (further reduced by the time difference between New York and Bonn); - and, finally, the legal basis chosen : Chapter vn of the United Nation s Charter was, for Germany, just as new, and therefore just as theoretically and politically controversial, as for other Member States .

II . IMPLEMENTATION OF THE ICTY STATUTE IN GERMAN LAW Once these difficulties had been resolved and resolution 827 (1993) and the Statute adopted, there began a political and theoretical battle for their implementation in German law. Here there was no disagreement about the fact that the measures based on Chapter VII of the United Nations Charter, particularly the comprehensive provision regulating cooperation in Article 29, paragraph 2, of the Statute , created direct intemationallegal obligations for United Nations Member States through its "selfexecuting" effect - without any national act of implementation. Insofar as this was

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associated with the duty to delegate national sovereign powers to the Tribunal and its organs, this did not involve any constitutional legal problems of a fundamental nature for Germany since Article 24 para. I of the German Basic Law contains a special enabling rule applying to such cases. However, according to the prevailing view, it did not relieve Germany of the obligation to amend Article 16 para. 2 of the Basic Law, which expressly prohibited extradition of German nationals "to a foreign country". Moreover, a statutory basis had to be created in German law to make it "technically" possible for the German Executive and Judicial Powers to fulfil their duties emanating from the Statute. Here, too, Germany was under considerable pressure . Its geographical position in the middle of Europe and the political, economic and human ties with Yugoslavia, which have developed over decades, predestined it to play the role of an important partner of the ICTY: when the conflict erupted in Bosnia and Herzegovina, it gave shelter to about 350,000 refugees from the region (today three-quarters of these people have gone back ; however, a total of about 600,000 nationals from the former Yugoslavia are still living in Germany), and so it was to be assumed that a large number of the people needed by the Tribunal (both witnesses and defendants) and a lot of the evidence would be located in Germany and that it would not be long before the first requests from the ICTY were to be expected. This prognosis was quickly confirmed when, for the first time, a Serb, Dusko Tadic, was arrested in Munich on 12 February 1994, on allegations of having committed war crimes in Bosnia and Herzegovina. He was going to be tried in Germany (on application of the universality principle in force for war crimes in the German Penal Code) ; the investigations were carried out in Germany over the following months until an indictment was issued . The ICTY was also interested in Tadic: In November 1993 it had commenced its work, and was, while struggling to gain recognition and financial support , under strong pressure to succeed. However, it could not produce any accused persons for a trial, so it decided to issue its first indictment against Tadic, who was being held in custody in Germany. Germany was not only obliged by international law but was also willing to comply with the request by the ICTY (made on 8 October 1994 after repeated indications that such a request was imminent) for deferral of the proceedings and the transfer of the accused from Germany to The Hague; both of these requests, however, made amendments to German law necessary . Had they not been made promptly, Germany would have had to reckon with a censure or even with sanctions imposed by the United Nations Security Council , or, at the very least, with international embarrassment. The representatives of the ICTY left no doubt about this when they visited the Federal Ministry of Justice . (These visits had the

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advantage for the author that for the first time he had the opportunity to meet the eminent President of the Tribunal, Antonio Cassese, in person). So, the bill for an Act on Co-operation with the ICTY was drafted by the Federal Ministry of Justice in record time and, to the displeasure of the organs which must be involved in the legislative process, consultation on the bill was completed so quickly - employing all of the possibilities available to speed up the procedure - that it was possible for it to enter into force on 14 April 1995 (Act of 10 Apr. 1995, Federal Law Gazette . I p. 485) - "just in time" : ten days later, Dusko Tadic was transferred to the Tribunal. It was only then, six months after the writer of these words had appeared before the ICTY as an "amicus curiae" (public hearing of Trial Chamber I on 8 November 1994 on the deferral by Germany to the Tribunal's competence in the proceedings against Tadic), that he was able to feel that he was really a "friend of the Tribunal" (and was also in the fortunate position of being a civil servant who had the honour of playing a small part in the making of legal history) . However, this feat of concentrated legislative effort, which to a great extent broke new ground from a legal point of view, also had a negative side: it was not completely possible to avoid that the Act remained vague and incomplete in places, the most uncomfortable point of all being that the constitutional ban on the surrender of Germans was not done away with at the same time. After more than five years - during which the Tribunal has fortunately not made such a request of Germany - it has been possible for this situation to be rectified as a result of the ratification of the Statute of the ICC (Act of 29 Nov. 2000, Federal Law Gazette I p. 1633); other technical corrections followed.

III. THE PRACTICE OF DEFERRAL TO THE TRIBUNAL'S COMPETENCE AND OF THE SURRENDER OF ACCUSED PERSONS The Tadic "pilot case" is as yet the only one in which proceedings have been concluded following the deferral by Germany of the proceedings and the transfer of the accused . (Neither of the two other transfers from Germany, both in 1995, led to convictions by the ICTY; nor had any prior investigations been conducted in Germany against the transferred persons. It goes without saying that the German authorities have also fulfilled their obligation to place a number of persons on the list of persons wanted for arrest in response to such requests of the Tribunal, although no further arrests have yet taken place). The problems which the Tadic case entailed for both sides are only partially representative of the cooperation between Germany and the ICTY. On the one

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hand, a number of these problems can be put down to the extreme time pressure and the unfamiliar nature of the material; such problems can be avoided in less urgent cases or as a result of lessons learnt through "trial and error". On the other hand, it is conceivable that there could be problems in future cases which did not arise in the Tadic case due to favourable circumstances or coincidences, such as the necessity for substantial amounts of documents to be translated from English into German at the shortest notice with limited staff resources, in order to create the conditions required for the necessary decision by a German court on transfer or exequatur, or other conflicts between the urgency of the proceedings and the necessity of involving various national and regional authorities . What appears to be inherent in the system, i.e., to go almost inevitably hand-inhand with the workings of national and supranational jurisdictions in relation to each other, and the provision on the primacy of the Tribunal contained in Article 9 of the Statute, is the frictional loss, which can be put down to the different concepts of competence and the different frameworks for decision-making on both sides. The Tribunal has no choice but to base the criteria for the type and severity of cases it takes on or leaves with the national authorities on factual and political circumstances as well, which fall outside its sphere of influence and are subject to constant unforeseeable change . If, in fact, it has to deal with too few accused persons, it cannot simply flexibly adapt its capacity to the circumstances but must direct its attention to cases of relatively minor significance, if a larger number of accused persons are arrested unexpectedly, it has to give priority to dealing with these cases, and until it is successful in bringing the "big fish" of the political and military chain of responsibility to The Hague it has no other option but to make do with the "small fry" . In this respect it is to be hoped that the new prosecution strategy (concentration on "big fish") developed by Prosecutor Carla del Ponte, and the concept for expediting the judicial proceedings conceived by President Claude Jorda (including the division of labour with national jurisdictions as well as the appointment of "ad litem" judges) will, at least partially, help to alleviate these problems. Until this happens, the prosecution authorities in countries which, like Germany, are able to bring prosecutions for war crimes committed abroad on the basis of the principle of universality, will not at any point assume that their own concept of prosecution is and will remain compatible with that of the ICTY. In spite of all efforts, there is as yet no convincing concept for "division of labour" between the Tribunal and the Federal Prosecutor General (Generalbundesanwalt), who conducts proceedings of this nature in Germany (one of the few cases in which direct federal jurisdiction is exercised in criminal investigations in the Federal Republic of Germany) and who in the last eight years has, with the help of the Federal

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Criminal Police Office, instituted investigations in well over 100 cases on the grounds of genocide committed on the territory of the former Yugoslavia, four of which have so far led to convictions. (Recently, in one case, prosecution was transferred from the Tribunal to German authorities although the case had not emanated from Germany.) The result of this is a lack of clarity in the delimitation of competence, separate but parallel investigations carried out at the same time at both levels, not carried out at all or subject to delay, risk of loss of evidence, confusion in respect of victims testifying as witnesses, etc. A further "home-made" problem concerns the German judges' conception of themselves, who have to participate in decisions on deferral or the transfer of an accused. Because of the time pressure and for reasons relating to the system, some details of these decisions were not autonomously regulated in the German Act on Co-operation, but instead reference was made to provisions which apply to international extradition, which, from the point of view of clarity of legal rules, is problematic, and, in particular, holds the danger of overestimating the national courts ' and authorities' involvement in making these decisions . It must be borne in mind that compared to the conventional instruments of international cooperation, the revolutionary innovations contained in the ICTY Statute make it virtually impossible to refuse a request by the Tribunal.

IV. OTHER FORMS OF COOPERATION

In no other field have relations between the ICTY and the German courts and authorities been so tested in respect of quality and quantity as in the field of cooperation in criminal matters and provision of other support, and it therefore comes as no surprise that most ofthe problems which have had to be dealt with arose here (and, in the author's opinion, were dealt with successfully). Firstly, some figures (since no official statistics are kept on this, a projection has been made based on entries in records kept by the Federal Ministry of Justice) : from 1996 to 2001, the ICTY made approximately 500 requests to the German authorities for legal assistance . Most of these requests were concerned with obtaining information or determining a person's location; at least one fifth concerned investigations conducted by the Tribunal on German territory (primarily witness interviews, usually without the participation of German officials). What sort of problems have to be dealt with? All countries which receive requests from the ICTY must be prepared for the fact that the ICTY's Statute obliges them to conduct acts and procedures of support which, in the "conventional" landscape of legal assistance, to a certain extent seem revolutionary (German specialist litera-

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ture speaks of a "quantum leap" compared to ordinary international legal assistance). This begins with the obligation of "spontaneous legal assistance", i.e., the provision of information without a specific request to that effect. It continues with the obligation to ensure the appearance of witnesses and experts before the Tribunal, using coercive measures where necessary (without consideration being given to the right under German law to refuse to testify), and the right of members of the ICTY not only to be present when acts of legal assistance are conducted in the requested state but also to make their own written, audio or visual recordings. The ICTY's right not only to have evidence taken by the requested state's own officials and judges, but to take their own evidence on that country's territory is something which is entirely new. There is also no precedent in international practice for requests for seizure of assets in order to prevent the accused taking flight, which the Tribunal considers to be possible pursuant to its interpretat ion of Article 24, paragraph 3, of the Statute. Finally, there is also the fact that, as in the case of the transfer of persons, the scope for decisions and discretion available to national courts and authorities is drastically restricted as compared to "horizontal" legal assistance . The special features of "vertical" legal assistance present the competent national authorities with great challenges ; they require close and trustful coordination between the requesting and requested agency in each and every case, much more so than in the practice of international mutual legal assistance , which has been a matter of routine for decades. An example of this could be the following; The independent examination of witnesses by members of the ICTY on German territory (the German authorities have shown neither hesitancy nor any opposition whatsoever to this type of unaccustomed "restriction of sovereignty", and have always given the ICTY members a free rein to conduct their investigations) can only be executed successfully if the "technical" procedures and details - e.g., the provision of premises and recording equipment for the interview, the collection and protection of witnesses where necessary, etc. - are prepared and supported by the German agencies familiar with the local conditions; this in tum requires that they are fully included in the planning stage within good time (i.e., weeks rather than days before execution when the channels of communication which must be adhered to are taken into account) . As has been demonstrated by the experience gained in international legal assistance, this works best if both sides have established teams working in this field who have an instinctive understanding of one another. Thus the lowest level of frictional loss is achieved in relations with ICTY members where those involved on both sides know each other from previous cases. Conversely, the danger of misunderstandings or of the working atmosphere being disturbed is greatest following the appointment of new members of staff to the

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ICTY investigation team. It must however be emphasised that all the problems which have arisen could ultimately be solved to the satisfaction of both sides. One of the particular aspects of Germany 's relations with the Tribunal is that whilst it is true that matters relating to legal assistance fall within the remit of the Federation in accordance with the constitutional structure of the Federal Republic of Germany, (international relations), the Federation has, however, for the greater part delegated the exercise of its competence in this respect to the Lander, which have their own competence for matters relating to the administration of ju stice. This means that in spite of the fact that the Federal Ministry of Justice has a central co-ordinating role, the ICTY also has to deal with "counterparts" from the 16 Lander when handling individual cases in Germany. The Statute, which was conceived as a "one-way street", does not make provision for request s in the "opposite" direction, i.e., requests made by Germany to the ICTY (the Tribunal therefore does not appear to be logistically set up to deal with such requests). However, the execution of such requests can also be in the interests of the ICTY in order to avoid proceed ings before the ICTY overlapping with national investigation proceedings and to attain "division of labour" to such an extent as is possible . In the last six years the Federal Prosecutor General has made more than 100 such requests to the Tribunal, of which at least some could be executed once difficulties had been overcome. Finally, a large number of various types of requests for assistance from the ICTY concern matters which do not fall within the remit of the judicial authorities, such as request s for police assistance (inclusion of persons in witness protection programmes), the resolution of problems in connection with asylum matters (granting secure residence status for witnesses required by the ICTY), measures which fall within the remit of the Federal Foreign Office, the Ministry of Defence or the intelligence services, the deployment of officials in the region of conflict, forensic support etc. These requests are also executed to the extent possible, and, judging by the reactions from The Hague, to the satisfaction of the ICTY.

V. EXECUTION OF ICTY SENTENCES IN GERMANY

Like a number of other countries, Germany declared in 1995 to the ICTY her general willingness to take on the execution of sentences handed down by the ICTY. To ensure that this promise could be fulfilled when it became necessary, a provision was included in the Act on Co-operation which states that most of the provisions on assistance in respect of execution contained in the German Act on Mutual Legal Assistance are applicable. As far as the enforcement, supervision and terminat ion is concerned, the provision is worded relatively vaguely, since the

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delimitation ofthe sphere of influence of the ICTY and that of the national authorities responsible for execution, especially with respect to the question of under what conditions the latter may suspend the remainder of a sentence on parole, are not clear from Articles 27 and 28 of the Statute . The German Act therefore was designed to safeguard the power required for negotiations with the Tribunal in individual cases , in that it merely requires that the ICTY be notified of planned modifications to enforcement without making provision for the event that agreement cannot be reached with the Tribunal on the further proceedings. When, subsequent to the final judgement against Dusko Tadic of 26 January 2000, the ICTY requested that the Federal Republic of Germany enforce the terms of imprisonment imposed on him (nine terms, the longest of which was 20 years), this constituted the "litmus test" of this statutory provision. It passed the test. Negotiations with the Tribunal have proved to be protracted and, at times, very difficult. On the German side, there were not only the legal and political interests of the Federal Government which had to be taken into account, but those of the Land of Bavaria, where the prison is located where the term was to be served, were also decisive , since, under the German constitution, the Federation does not have its own penal institutions, this responsibility falling exclusively within the competence of the Lander. For their part, the representatives of the ICTY felt that they were bound by strict guidelines, particularly to maintain their negotiating position with other countries in different cases, and it was not easy to reconcile these guidelines with the German legal position and practice . However, it was finally possible to bring negotiations to a successful conclusion - 14 months after the first informal talks - thanks to the willingness to compromise and find a consensus of all those involved . The agreement between the ICTY and the Federal Government of 17 October 2000 (planned to be publish cd in UNTS), which consists of an exchange of notes and letters, guarantees the balance between the German (Bavarian) control over the enforcement of the sentence and the supervisory authority of the Tribunal, by placing the German side under the obligation to inform the ICTY immediately about all imminent or planned measures with respect to the further enforcement procedure. Should differences arise which could not be settled between both sides even after consultations, the enforcement in Germany could be terminated as a "last resort" and the convicted person transferred back to the ICTY. After the judicial exequatur order had been issued , which is a requirement under German law, Tadic was transferred to Germany on 31 October 2000. He has since been serving his sentence in a Bavarian prison. (In addition , the Federation made an agreement with Bavaria that the costs of the enforcement would be borne by the Federation).

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VI. GERMAN PERSONNEL AT THE ICTY Germany not only provides active support to the ICTY in a large number of individual cases, but also contributes more than its due share to the budget (it is the third largest contributor to the Tribunal providing approximately $8,400,000 in 2000). Unfortunately, this fact, as well as Germany's considerable political and financial commitment as far as the problems of the region are concerned (Germany has invested billions running into double figures into aid for refugees from Bosnia and Herzegovina and for the rebuilding of this region) is not reflected in the proportion of German nationals employed at the ICTY. Until2001, no German candidate had attained the required majority in elections of judges by the United Nations General Assembly. As far as the other top-level positions at the ICTY are concerned, Germany is still significantly underrepresented (particularly in the investigation teams); the proportion of employees who are German is, taken as a whole, less than 1 percent. It would be desirable if the staffing policy of the ICTY were in future to be developed and implemented at all levels in a way that mirrors Germany's importance for the region and for the Tribunal's work.

VII. PROSPECTS FOR THE FUTURE Germany is very well aware of the fact that the support it has given to the ICTY is also in its own interest. The evolutionary and revolutionary developments in connection with the creation of international criminal tribunals have taken on a momentum of their own which emanates into all spheres of international and national criminal law. The necessity of developing substantive rules as well as rules of procedure and cooperation for these tribunals, which are compatible with the different legal systems in the world, brings us closer to a harmonisation of these systems in general, or at least brings these systems closer to one another. It has, both in theory and practice, already led to a new way of looking at things and a new "philosophy" of international cooperation, due to which the differences in the national criminal codes and criminal procedure codes to a great extent lose their impeding effect. Elements of the Statutes of the ICTY and the ICC are increasingly being adopted in international mutual legal assistance and excessive conceptions of sovereignty are being reconsidered and reduced in this area, too. This gives us reason to hope that, in the long run, the world will as a result move closer towards the noble goal of a universal and just criminal law system. We have come full circle: the author must admit that he has for a long time been one of those people who felt that such a development was a wonderful but

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unachievable dream. He then let himself be inspired by Bassiouni 's motto: "Some people look at things and ask, 'Why'? Others dream of things and ask, 'Why not'?" Today, he is certain of one thing: If we are successful in going down the path laid down by the creation of the ICTY, this will mean justice and humanity not only in the war-torn regions in the Balkans, but an immeasurable gain for the whole world. The Federal Republic of Germany and the German Lander will continue to contribute to achieving this goal.

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BEYOND KOSOVO: THE UNITED NATIONS AND HUMANITARIAN INTERVENTION Ralph Zacklin

I. INTRODUCTION A deadly century has ended . It was, in the words of the historian Eric Hobsbawm, "without doubt the most murderous century of which we have record by the scale , frequency and length of the warfare which filled it" .' In the last six months of the last century alone ethnic conflicts in Kosovo, East Timor and Chechnya were added to numerou s on-going international conflicts in the Hom of Africa, the Great Lakes region and Kashmir, while civil wars in Afghanistan, Colombia, Sudan , Sri Lanka, Angola and the Sudan showed no signs of abating . The enumeration is not exhaustive. What is particularly significant is the nature of these wars. Wars are increasingly fought within states , not between them . Civilians rather than soldiers are the victim s and among the civilians the most vulnerable are the children , the poor and the elderly, As Mary Kaldor has pointed out in her recent book New and Old Wars,2 the ratio of military to civilian casualties at the beginning of the twentieth century was 8: I ; by the time of the wars of its last decade, the ratio had been almost exactly reversed.

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2

Hobsbawm , Eric J: The Age ofExtremes: A history ofthe world, 1914-199 I (Michael Joseph, London , 1994). Kaldor, Mary : New and Old Wars: Organ ized violence in a global era (Polity Press, Cambridge , England , 1999).

L.c. Vohrah et at. (eds.), Man 's Inhumanity to Man , 935-952 ©2003 Kluwer Law International. Printed in the Netherlands.

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In the Twentieth Century, Professor J.M. Roberts' single-volume history of the world from 1901 to 2000,3 the historian tells a story that most thinking people would like to forget and that those of us who are professionally engaged in the practice of international law and international relations must regard with dismay. If the century has seen unimaginable and unparalleled progress in science, technology and medicine, this very progress seems paradoxically to have created more, not less, conflict. The laws of human nature appear to be infinitely more difficult to tame than the laws of science. For the United Nations, the second attempt in the twentieth century to create an international organization of universal competence and authority to maintain international peace and security, the last decade of the century proved to be tumultuous . Beginning with the end of the cold war and the successful reversal of Iraq's aggression against Kuwait, the fulfilment of the Organization's role in maintaining peace and security through an engaged and, finally, relatively cohesive Security Council appeared to be realizable. A New World Order was proclaimed . Then, in swift succession , came Somalia, Bosnia and Rwanda . The Security Council 's credibility and by extension that of the United Nations as a whole was grievously damaged. In Somalia, what began as a humanitarian mission ended in ignominious withdrawal after a succession of failed operations; the casualties sustained by the United States and other contingents blighted peacekeeping and peaceenforcement in Bosnia and led directly to the inability to deal with the single worst crime of the second half of the century, the genocide in Rwanda. The United Nations will live with the consequences of these failures for a very long time, even as it strives to learn from them. By the end of the last decade, with United Nations credibility hugely diminished, if not entirely destroyed, the Security Council was unable to find a working consensus on Kosovo. A NATO-led coalition acting without the prior authorization of the Security Council and not in self-defence, undertook enforcement measures in violation of United Nations Charter principles including the prohibition on the use of force, thereby plunging the Organization into a political, legal, institutional and moral crisis. The decade ended with the utility and the future of the United Nations very much in doubt.

3

Roberts, John M.: Twentieth Century: The history of the world, 1901 to 2000 (Viking, New York, 1999) .

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II. THE CHALLENGE OF KOSOVO NATO's actions in regard to Kosovo presented a serious threat both to the United Nations and to the dual concept that had prevailed since 1945 that, as the only universal political organization, it represented the international community of states and that the principles contained in its Charter formed the cornerstone of international relations. Quite suddenly, fundamental principles such as the respect for sovereignty, territorial integrity and the prohibition on use of force except in selfdefence or when authorized by the Security Council were cast into doubt. The very fabric of the organized international society as we knew it appeared to have been dissolved. It was particularly worrisome that the decision to proceed to the use of force without United Nations authorization was so overt - more so than the closest precedent at the end of the Gulf War when the coalition intervened in Northern and Southern Iraq on the basis of Security Council resolution 688 - and that among the countries most politically and militarily engaged were those who historically have most consistently upheld the principles of the Charter and the importance of the authority of the United Nations as the foundation of the present system of peace and security . The action in Kosovo caused considerable unease among Member States but also among senior Secretariat officials . The unease deepened as the bombing was stepped up, as civilian installations such as bridges across the Danube were destroyed, as innocent civilians were killed and injured, and as questions began to surface as to the means and method of warfare and the lack of proportionality in the use of force. It was impossible for the Secretary-General to remain silent. The difficulty was that, on the one hand, he could do no less than defend the Charter principles and its institutional framework, while at the same time recognizing that massive and systematic violations of human rights could not be permitted to unfold without an appropriate response from the United Nations. With its credibility already severely damaged in Somalia, Bosnia and especially in Rwanda, the United Nations could not afford to be seen as indifferent to the human suffering in Kosovo. In brief press statements at the beginning of the hostilities, the Secretary-General deplored the fact that the situation in Kosovo had not been resolved by peaceful means and that the Security Council had not been able to fulfil its role . However, he also made it clear that, in his view, there were circumstances in which unauthorized force could legitimately be used in the defence of peace and to prevent massive and systematic violations of human rights . As events in Kosovo unfolded, the need for an authoritative and more comprehensive statement on humanitarian intervention became necessary. The occasion for such an address

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presented itself in The Hague on 18 May 1999 during the centennial commemoration of the first International Peace Conference.

III. THE SECRETARY-GENERAL'S ADDRESS, THE HAGUE , 18 MAY 1999 4

The Secretary-General began his address by noting that the meeting was taking place at a time of war, a reference to the then on-going armed intervention regarding Kosovo. He stated that a renewal of the effectiveness and relevance of the Security Council was a cornerstone in protecting and preserving the legal regime of the Charter. It was, therefore, a cause for concern that the Council had been disregarded on such matters as mandatory sanctions, cooperation in disarmament and non-proliferation and implementation of decisions of the Yugoslavia and Rwanda war crimes tribunals. The case of Kosovo, he said, "has cast into sharp relief the fact that Member States and regional organizations sometimes take enforcement action without Security Council authorization". Such marginalization of the Council was regrettable. The inability of the Security Council in the case of Kosovo to unify two equally compelling interests - its primary responsibility for the maintenance of peace and the legitimacy of using force in pursuit of peace and the defence of human rights - was a source of great danger. It was clear that "Unless the Security Council is restored to its pre-eminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy". The core challenge of the Security Council and the United Nations was "to unite behind the principle that massive and systematic violations of human rights conducted against an entire people cannot be allowed to stand". The choice should not be between Council unity and inaction in the face of genocide, as in Rwanda , and Council division and regional action, as in Kosovo.

4

The full text of this address was issued as a Press Release SG/SM/6997 of 18 May 1999. The speech has also been reproduced in a pamphlet published by the Department of Public Information entitled "The Question of Intervention". Sales No. E.OO.1.2.

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IV. THE SECRETARY-GENERAL'S ADDRESS TO THE GENERAL ASSEMBLY ON 20 SEPTEMBER 1999 5 Between the Hague address and the Secretary-General's address at the opening of the 54th session of the General Assembly on 20 September 1999, two significant events occurred in relation to the ongoing debate on sovereignty versus humanitarian intervention. The first was that the use of force against the Federal Republic of Yugoslavia in relation to Kosovo was brought to an end and the situation in Kosovo was brought back into the fold of the Security Council which authorized a far-reaching military and civilian operation in Kosovo (resolution 1244). The second was that violence erupted in East Timor in the immediate aftermath of a popular consultation favouring independence from Indonesia. This resulted in large-scale violations of human rights, a situation which yet again confronted the United Nations with the problem of how far it could or should go in intervening militarily in the eventuality that the state exercising sovereignty rejected such intervention. Unlike Kosovo, however, the United Nations in this case was able to act expeditiously, first in authorizing a military intervention under Chapter VII, which obtained Indonesia's acquiescence , and subsequently in authori zing a comprehensive military and civilian operation, with very broad powers of governance, to act as an interim civilian administration pending full independence for East Timor. The extent to which the lesson s learned in Kosovo influenced the decision-making on East Timor is unclear. What is certainly true is that the Secretary-General was determined in this situation to exercise all the powers at his disposal in order to ensure that action to halt the human rights violations be immediate and that the framework of the United Nations be respected. In the light of these dramatic events, the Secretary-General's speech to the General Assembly took on an added significance. Placing the problem of what he termed "the prospects for human security and intervention" in the wider context of the need to adapt the United Nations to a transforming world - one transformed by global geo-political, economic, technological and environmental changes - in which new actors, new responsibilities and new possibilities for peace and progress were emerging - the Secretary-General put forward two propositions: first, that state sovereignty, which for all of the twentieth century had been regarded as the fundamental unit, the very foundation of organized international society as enshrined in the United Nations Charter, was in its most basic sense being re-defined by the

5

Official Records of the General Assembly, Doc. N54IPVA of 20 Sept. 1999.

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forces of globalization and international cooperation, that "The State is now widely understood to be the servant of the people, and not vice versa" and second, that individual sovereignty - the human rights and fundamental freedoms of each and every individual as enshrined in the United Nations Charter - has been enhanced by a renewed consciousness of the right of every individual to control his or her destiny. These parallel developments demanded a willingness to think anew about how the United Nations responds to political, human rights and humanitarian crises, the means employed and willingness to act. While genocide in Rwanda defined for our generation the consequences of inaction, the conflict in Kosovo prompted important questions about the consequences of action in the absence of complete unity on the part of the international community. Kosovo demonstrated the dilemma of humanitarian intervention, the questionable legitimacy of an action taken without United Nations authorization on the one hand and the imperative of halting gross violations of human rights on the other. It had been the inability of the international community (i.e., the United Nations) in Kosovo to reconcile these two competing interests that had resulted in the tragedy in Kosovo. Some commentators and scholars had attacked the Charter and its system as being outmoded or irrelevant. The Secretary-General took issue with this view. The Charter's principles still defined the aspirations of peoples everywhere. "Nothing in the Charter preclud[ed] a recognition that there are rights beyond borders. The source of the dilemma lay not in deficiencies in the Charter but in its application - more precisely applying its principles in an era when sovereignty and human rights had taken on new meanings in relation to one another". The Secretary-General concluded by affirming that: Just as we have learned that the world cannot stand aside when gross and systematic violations of human rights are taking place, so we have also learned that intervention must be based on legitimate and universal principles if it is to enjoy the sustained support of the world's peoples. This developing international norm in favour of intervention .. . will no doubt continue to pose profound challenges to the international community. Any such evolution in our understanding of State sovereignty and individual sovereignty will, in some quarters, be met with distrust, scepticism, even hostility. But it is an evolution that we should welcome. The Secretary-General's speech achieved its principal goal which was to encourage an internal and public debate on the issue of humanitarian intervention. The debate, however, also revealed a substantial polarization of views largely along

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north-south lines which does not augur well for the early evolution of a norm of international law. While the events of the last 12 months in Kosovo, East Timor and Chechnya have focused renewed attention on the role of the United Nations and humanitarian intervention and the Secretary-General's address was a timely, even bold, attempt on his part to frame the debate and provoke new thinking about a doctrine of humanitarian intervention which mayor may not be evolving normatively, thus far very little clarity has emerged. The debate has predictably given rise to much political posturing but it has also served to highlight a number of underlying issues such as the imperative need for reform of the Security Council which lies at the heart of the disenchantment of the great majority of Member States . It is, therefore, opportune to take a closer look at the question of humanitarian intervention and to analyze it from a legal, as distinct from a purely political, point of view. What exactly does humanitarian intervention entail, what might its elements be and lastly, is it possible to envisage the emergence of a norm of humanitarian intervention, that is to say a binding rule of international law, either through the development of a customary rule or through a codified international instrument?

v. DEFINITION OF HUMANITARIAN INTERVENTION Historically, humanitarian intervention has had several meanings or has come to encompass different concepts, not all of which have the same legal significance. It is important , therefore, at the outset of any discussion of an evolving norm of humanitarian intervention to define its specific meaning . It may be noted that the Secretary-General in his General Assembly speech quite deliberately placed his remarks within a broad definition of humanitarian intervention to include a wide spectrum of action from the most pacific to the most coercive, placing a good deal of emphasis on preventive diplomacy through the pacific dispute settlement mechanisms of Chapter VI of the Charter. There is little doubt today as to the legal standing of these consensual forms of intervention which trace their origins to the Hague Peace Conferences of 1899 and 1907 and which have acquired a normative value which is largely uncontested. However, the recent debates on intervention, whether in the General Assembly or in the public at large, have focused almost exclusively on coercive humanitarian intervention and, since the use of force is permissible under the Charter in certain well-defined circumstances, it is situations such as Kosovo, East Timor or Chechnya, which lie at the heart of the matter. That is to say, whether, in the absence of a specifie authorization of the Security Council, it may be legitimate for

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a state or group of states to intervene in the territory of a third state, including through the threat or use of force, to halt massive and systematic violations of human rights within that state. Humanitarian intervention in this sense does not have the same meaning as other forms of intervention with which it is sometimes confused such as the protection of foreign nationals (for example, in Grenada or Panama) or humanitarian assistance offered through the international community of non-governmental organizations . These forms of intervention pose somewhat different legal problems and have attained a relative degree of recognition under international law. A good starting point in the legal analysis of humanitarian intervention as understood in the narrow sense outlined here is, therefore, the United Nations Charter itself, in order to see to what extent its principles and mechanisms might permit such humanitarian intervention . From the perspective of the United Nations Charter and international law in general, the development of a norm of humanitarian intervention would have to overcome two major obstacles of principle: the prohibition on the use of force and the principle of non-intervention in the internal affairs of states.

VI. NON-USE OF FORCE : PRINCIPLES AND MECHANISMS The fundamental rule on the basis of which any examination of humanitarian intervention must proceed is Article 2 (4) of the Charter, according to which all Members of the United Nations "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations". It is generally understood that the prohibition on the use of force in international relations contained in this article was intended at the time of its adoption and is still regarded today to be comprehensive in nature. Indeed, it is this provision of the Charter which marked the historic evolution of organized international relations in the twentieth century, prior to which no general prohibition on the use of force existed. The Hague Peace Conferences - the Centenary of which, ironically, took place during the Kosovo intervention - are considered as the beginning of the process to prohibit the use of force in international relations in international law. The 1907 Hague Convention, however, did not prohibit the use of force, it merely formalized resort to it. The Covenant of the League of Nations likewise failed to establish a general prohibition of war, a step that was not achieved until the Kellog-Briand

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Pact in 1928. Although the Kellog-Briand Pact soon came to be regarded as part of customary international law, it too had its shortcomings. It did not contain a general prohibition on the use of force (as distinct from war) and it was not linked to a system of sanctions. Article 2 (4) of the United Nations Charter therefore represented a considerable advancement in the law in the sense that the use of force in general is prohibited, as is the threat of force . The Charter provides for only two exceptions to this rule: the first is the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations (Article 51); the second exception finds its source in Chapter vn of the Charter which is the foundation of the collective security system established in San Francisco, according to which the Security Council, if it determines that a threat to the peace, breach of the peace, or act of aggression has occurred, may take (or authorize) military enforcement action involving the armed forces of the Member States . For the great majority of international lawyers today, any threat or use of force that is neither justified as self-defence against an armed attack nor taken or authorized by the Security Council is a violation of the Charter and is therefore contrary to international law. Viewed in this perspective, it is clear that what is illegitimate unilaterally may be legitimate if it is the subject of a collective decision of the United Nations ; that coercive humanitarian intervention is not excluded by the Charter provided that the Security Council determines that massive and systematic violations of human rights occurring within a state constitute a threat to the peace and then calls for or authorizes an enforcement action (i.e., a collective United Nations action or an authorized coalition of the willing). As correct as this conclusion may be from the standpoint of lex lata, the question arises whether this view of the law is morally acceptable today. Can we really accept that a collective or authorized action to halt massive and systematic violations of human rights is entirely dependent upon the political ability of the Security Council to make a determination that such violations constitute a threat to the peace - a determination which, at a minimum , requires the affirmation or acquiescence of all five permanent members of the Security Council. The choice, as the Secretary-General has put it, and as noted earlier, must surely be more than unity and inaction or division and unauthorized action.

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VII. THE PRINCIPLE OF NON-INTERVENTION The second major obstacle to be overcome is the principle of non-intervention in the internal affairs of states: a customary principle which in the eyes of the overwhelming majority of international lawyers has the character ofju s cogens, that is to say, it is a peremptory norm from which no derogation is permissible. This principle is reflected in numerous international instruments adopted by the United Nations General Assembly, including the Declaration on Friendly Relations," and has been affirmed on several occasions by the International Court of Justice, most notably in the Corfu Channel case? and in the Nicaragua casei In the context of the debate regarding humanitarian intervention the Corfu Channel case is particularly instructive since the demining operation carried out by the Royal Navy in the Corfu Channel which gave rise to the dispute could be characterized as having a humanitarian objective. Is it possible then to envisage a deviation from the principle of non-intervention on the grounds of a competing norm of humanitarian intervention? Today, it is frequently observed that human rights are no longer the exclusive concern of the sovereign state, that they have become a core concern of the international community and that obligations to respect such rights are erga omnes. To some degree this has always been the case - who now remembers the attempts to impose sanctions on the Spanish Fascist regime of Franco, or the use of comprehensive mandatory sanctions to end the racist policies in Rhodesia and South Africa? The trend has become far more pronounced in the last decade, as witnessed by the remarkable institutional development of the establishment of two ad hoc war crimes tribunals by the Security Council acting under Chapter VII. Whether the trend might be said to constitute a deviation from, or an exception to, the principle of non-intervention is a question which must be approached with great caution for the reasons advanced by the International Court of Justice, i.e., the risk of abuse . The principles of non-use of force and non-intervention represent serious obstacles to the development of a norm of humanitarian intervention, although such principles are not immutable and their meaning may change over time through

6

Resolution 2625 (XXV of 24 Oct. 1970).

7

IC] Reports , 1979, p. 35.

8

IC] Reports, 1986, para. 202, p. 106 and para. 207, p. 108.

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their interpretation in the practice of states. In order to overcome these obstacles, an emerging norm of humanitarian intervention would have to accommodate these principles or, as the case may be, be able to demonstrate that state practice has achieved what amounts to a de facto amendment of the controlling principle .

VIII. THE QUESTION OF AN EMERGING NORM OF HUMANITARIAN INTERVENTION

In his statements on various occasions over the last twelve months, the SecretaryGeneral has clearly and expressly aligned himself with those scholars and members of civil society who, for some time now, have advocated what has been perceived as the embryo of a rule of humanitarian intervention in international law. In April 1999 in an address to the United Nations Human Rights Commission, the Secretary-General stated that: Emerging slowly, but I believe surely, is an international norm against the violent repression of minorities that will and must take precedence over concerns of State sovereignty. As we have seen, he returned to this vision in his address to the General Assembly. However, in this last address he acknowledged that the evolution in our understanding of state sovereignty and what was termed individual sovereignty would almost certainly be met with distrust, scepticism and hostility in some quarters. There is no doubting the commitment of the Secretary-General to the promotion of human rights, which he has made a cornerstone of his administration. His advocacy of humanitarian intervention is both courageous and far-sighted. But as his address to the General Assembly shows his idealism is tempered by realism . A norm of humanitarian intervention may be a desirable goal - what international lawyers would refer to as lex ferenda - but it is far from acquiring the character of a rule lex lata . To those who are familiar with the formation of rules of intemationallaw through customary or conventional means, the notion of an emerging norm is a familiar one. There are numerous areas of international law where today's rules "emerged" over time through a developing practice of states which achieved wide recognition either as customary principles or became codified in conventions . The development of the law of the sea, in particular in relation to such concepts as the continental shelf, the territorial sea and the exclusive economic zone, is an example of emerging norms developing through the practice of states.

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The current state of the emerging norm of humanitarian intervention and the many difficulties which it poses may be gauged from the reactions of Member States to the Secretary-General's address to the General Assembly. As was to be expected, the Secretary-General 's address provoked a lively debate among Member States, 51 of whom took part.? An analysis of the positions taken shows that the views of states can be grouped into three major tendencies: (i) the smallest group, represented by Germany and Sweden, are strong advocates of immediate intervention in situation s of grave human rights violations ; (ii) a larger group, composed of states from the three regional groups of Africa, Asia and Latin America, expressed strong opposition to humanitarian intervention and defended national sovereignty as an unchallengeable principle ; (iii) a third and, by some margin, the largest group aligned itself somewhere between the other two. Many of the states in this group, while not opposed outright to humanitarian intervention, nevertheless emphasized the need to provide clear and consistent criteria to ensure that the doctrine of humanitarian intervention is applied on an equitable basis. Taken overall, of the states which took an explicit position on the issue, some 32 were either against or negatively inclined while only 8 were generally supportive. Equally significant, and an indication of the perceptions underlying the positions, the polarization of those generally in favour and those generally against was strictly along north-south lines. Importantly, among those overtly opposed or negatively inclined towards a doctrine of humanitarian intervention were both China and the Russian Federation, two of the five permanent members of the Security Council. While the views expressed by Member States in a general debate such as this may be regarded as essentially impressionistic, nevertheless, it is almost certainly a reasonably reliable guide as to current state thinking. Although not encouraging to those inclined towards the view of an evolving norm of humanitarian intervention, some encouragement may be drawn from the fact that the largest group of states did not reject the idea of humanitarian intervention but expressed the need to build a political consensus in the General Assembly and the necessity of establishing clear and consistent criteria if such a doctrine were to be developed.

9

For the analysis of this debate, I am indebted to an internal United Nations Secretariat paper prepared by a group of interns in the Policy Planning Unit of the Department of Political Affairs.

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IX. KOSOVO AS A CATALYST FOR CHANGE

The late Georg Schwarzenberger, professor of international law at University College, London and who was known for his so-called inductive approach to internationallaw - a form of strict empiricism in which state practice as evidenced through the decisions of international courts and tribunals was elevated to a high degree stated in his Manual of International Law 10 that "the totality of the rules of international law can be explained as a constantly changing and dynamic interplay between the rules underlying the principles of sovereignty and those governing the other fundamental principles of international law." Nowhere is this more apparent than in the interplay between the principles of sovereignty and the principles underlying the promotion and protection of fundamental human rights . Law whether domestic or international- is by nature a conservative discipline and change usually comes about slowly. But there are crises or events of such magnitude that they produce tectonic changes not only in the political landscape but also in the legal landscape. Thus we can see how the two world wars wrought lasting changes on international law. The Charter of the United Nations was, of course, a product of the Second World War and remains so to this day with its emphasis on state sovereignty. And yet, as the Secretary-General has frequently pointed out, the Charter was issued in the name of "the peoples" , not the governments of the United Nations , and its aim is not only to maintain international peace and security but also "to reaffirm faith in fundamental human rights , in the dignity, and worth of the human person". Furthermore, the Charter has proved to be a flexible instrument, responsive to change more readily than its purely formal amendments would lead us to believe. It is undeniable that, as slow and painstaking as it may have been, there has been a steady evolution of the human rights principles of the Charter, first with the elaboration of the fundamental human rights instruments such as the Universal Declaration of Human Rights and the Covenants and subsequently through the various mechanisms for their implementation. Side by side with this normative and institutional development we have witnessed the rise and growth of civil society and what might be called humanitarian action at both the inter-governmental and non-governmental levels. The question whether the Kosovo intervention will recede into history as a singular exception to the prevailing law or whether it will prove to be an event which

10

G. Schwarzenberger, Manual ofInternational Law (1960) p. 84.

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acts as a catalyst for change, resulting in a new norm of humanitarian intervention, remains to be seen. Judging by the intensity of the debate which it has already provoked, it may well come to be regarded in the future as such an event. The challenge for the international lawyer is twofold: to seize the opportunity created by the particular conjuncture of policy and practice which is represented in a general sense by the Kosovo conflict and to explore the possibilities for achieving that elusive common ground that could provide a basis on which the international community can develop a norm of humanitarian intervention without at the same time eroding the principles and purposes of the Charter. This is, to say the least, a daunting task but, as the General Assembly debate has demonstrated, there is a substantial consensus among states that the issues underlying the new dynamics in the relationship between sovereignty and human rights must be discussed . This is a starting point. While we are, no doubt, some way removed from a definitive framework of a normative doctrine of humanitarian intervention on the basis of the contemporary discussion, it is possible to outline some of the legal and institutional elements of such a doctrine which, if it is to become a rule of law, must be clear, equitable, principled, and authoritative.

X . TOWARDS A NORM OF HUMANITARIAN INTERVENTION

The degree of hostility or suspicion with which the intervention in Kosovo was received in many countries, particularly among the non-aligned who perceived it as a form of nco-interventionism under humanitarian pretexts, underscores the necessity of agreeing on certain criteria for humanitarian intervention linked to the Charter's substantive and institutional framework. Nothing short of this is likely to overcome the deeply held view that, as presently conceived, humanitarian intervention is an instrument of dubious legality, inequitable of implementation and a weakening of the foundations of organized international society. A number of substantive and institutional criteria or pre-conditions have already been suggested by governments or by scholars or have emerged from the debate in the General Assembly." It is around these elements that the eventual formation of a norm might develop. II

One of the first and most notable scholars to outline the elements of an emerging customary rule wa s Antonio Ca ssese, at that time , Presiding Judge of Trial Chamber II of the ICTY, in an article entitled ' Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?' , European Journal of International Law , Vo1.10, p. 23 (1999).

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A. Primacy of preventive measures Since the use of force in international relations must always be treated as an exceptional measure, and is an extremely grave matter under any circumstances, every effort must be made to exhaust all possible peaceful means of resolving the humanitarian crisis. Primacy must, therefore, be given to preventive measures including the greater use and development of early warning systems, preventive diplomacy, preventive deployment and preventive disarmament. As the SecretaryGeneral has said, "Even the costliest policy of prevention is far cheaper, in lives and in resources, than the least expensive use of armed force". The primacy of resort to and the exhaustion of preventive measures must be made an integral part of any humanitarian intervention doctrine.

B. A demonstrated inability or unwillingness to uphold the law by the state concerned If the violations of human rights are the result of a breakdown in the organs of the state, it must be ascertained that the governmental authorities are not only incapable of ending these violations but at the same time have refused assistance from other states or international organizations. If, on the other hand, the violations are in fact attributable to the government , it must be shown that the authorities concerned have consistently withheld their co-operation from the United Nations or other international organizations or have systematically refused to comply with appeals, recommendations or decisions of such organizations .

C. The primary role and responsibility of the Security Council must be recognized Under the Charter, the Security Council has the primary and exclusive authority to authorize the collective use of force. The inability of the Security Council to fulfil this primary function , because of disagreement among the members or because one or more of the permanent members exercise s its veto, must be clearly established before intervention can be justified.

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D. The violations of human rights must be massive and systematic In order to give rise to intervention involving the threat or use of force, the violations must be massive and systematic , such as genocide in Rwanda, large scale ethnic cleansing , as in Bosnia and Kosovo, and crimes against humanity as defined in the relevant international instruments or by the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda . The threat which is posed to civilian life must be overwhelming and immediate, allowing of no alternative action.

E. Action must be collective or collectively legitimized Humanitarian intervention must have the support or acquiescence of the international community at large. Such support may be demonstrated in a number of ways but obtaining the views and support of the overwhelming majority of states in an organ such as the General Assembly of the United Nations would be an indication of the necessary support.

F. Limitations on the use of force The use offorce must be limited to the purpose of halting the violations and restoring respect for human rights. The intervention must be discontinued once this limited goal is achieved . It must not undermine the territorial integrity of the state concerned, it must be proportionate in the use of means, and must be conducted in accordance with international humanitarian law. It should be noted that these criteria are not the product of anyone group of states but represent a broad cross-section of positions advanced by states of all regional groupings.P The criteria , taken individually, reflect, for the most part, the existing Charter based law and practice : they re-affirm the basic principles of the Charter and the central goal of non-use of force by emphasi zing the primacy of preventive

12

The Government of the United Kingdom has espoused a set of ideas along similar lines in an effort to encourage the developm ent of what it calls "a set of pragm atic understandings on action in response to humanitarian crises" which it believes could assist the Security Counc il to reach consensu s when such crises occur.

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measures and the primary role of the Security Council ; the exceptional nature of humanitarian intervention is invoked by requiring that the violations of human rights which give rise to intervention must be massive and systematic; the limitations of intervention are strictly confined through the express reaffirmation of the principle of territorial integrity ; and the exceptional use of force is subject to the rules governing proportionality and respect for international humanitarian law. It will be readily appreciated that such criteria lend themselves more to a "political " understanding on a case-by-case basis than to a fully-grown normative outcome. This is an inevitable stage in the process . Given the highly political nature of the problem it is probably premature to think in terms of a norm of international law reflective of such a radical transformation of established principles and mechanisms. However, it is undeniable that an evolution is taking place which will have a transforming effect on international law and the international institutions which give effect to it. The intensity with which all sides in the debate argued the presumed legality or illegality of the intervention in Kosovo demonstrates that there is a strong desire among political leaders and opinion-makers to justify such actions in law. This is, in itself, a significant recognition of the importance of international law in the contemporary international dialogue. The law does not create the practice of states, it must evolve from such practice but, as lawyers, we have a duty and an opportunity to point the way and offer a road map to the desired destination.

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43

HUMAN RIGHTS PROTECTION VS. NON-INTERVENTION: A PERENNIAL CONFLICT? Karl Zemanek

I. POLITICAL PRINCIPLES OF INTERNATIONAL LAW

Some of the most fundamental principles and institutions of international law straddle the fuzzy borderline between politics and law and have their roots in both, sometimes more in the former than in the latter. Non-intervention shares this fate with other principles or institutions like the non-use of force, recognition or State succe ssion. Since the political aspects of these principles or institutions are governed by the interplay of State interests , their legal side is often relegated to second place. Politics dominate their application in a given situation, and the legal implications, while sometimes used as a convenient argument, are rarely a determining factor. State practice in their respect is usually so confused that any abstract definition of their legal meaning, other than in the form of a truism, risks either to do violence to the empirical data or draw a fictious image "more honour'd in the breach than the observance " (Shakespeare, Hamlet). As a matter of fact, one has to accept that these principles, although they are in some respects also legal principles, cannot be applied - and, perhaps , cannot even be made to apply - in the same manner and by the same method as other rules of international law. Their legal side is often confined to procedure, prescribing the conditions of their application and its consequences, while their material content is mostly too elusive to be captured in legal terms.

L.c. Vohrah et al. (eds.), Man's Inhumanity to Man, 953-976 ©2003 Kluwer Law International. Printed in the Netherland s.

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It is thus not surprising that neither academic writings! nor the published doctrine of States has yet produced a generally shared definition of the principle of non-intervention. An enquiry into the conflict with human rights protection obliges thus to begin by discovering the legal substance of the principle . For want of a binding legal source, it is suggested to use the formulation in the Friendly Relations Declaration (FRD) of 1970 2 as basis, since the latter was approved by consensus and is supposed to reflect the shared opinion of the community of States at the time. Hence one may presume that what it states is a fair basis to start an enquiry , although it is evident that it is dated as far as its ideological ornamentation is concerned and remarkable for the omission of many controversial points, which have simply been left out. Perhaps the most vexing deficiency is the lack of a clear differentiation between the principle of non-use of force and the principle of non-intervention. It is true that in the past intervention was usually associated with armed force and in classical international law the latter was considered one of its constituent elements.' In political parlance and in the media the word is still often used in this sense. But why was it then necessary to formulate a separate principle of non-intervention? Two answers are possible to this query: Either one subscribes to the view that this is simply a case of duplicate regulation , and the use of force for the purpose of intervention cumulates the violation of both principles, or one adheres to the opinion that the principle of non-intervention concerns only acts short of the use of force . Either of these understandings could be correct,' but the FRD does not reveal which one is. In order not to confu se readers who may be accustomed to its meaning in colloquial language where, for instance, a military operation is called a "humanitarian intervention", the term "intervention" is used in its broadest sense

I

No exhaustive list is intended . Informative works are, inter alia, P.H. Winfield, "The History ofIntervention in International Law" , BYIL 3 (1922/23), 130-149; J.E. Fawcett , "Intervention in International Law", RdC 103 (1961),347 -423; Th. Oppermann, "Die Nichteinmischung in innere Angelegenheiten", AVR 14 (\969170), 321-341 ; W. Friedmann, " Intervention in International Law" , in L.G.M. Jaquet (ed.), Intervent ion in International Policies, 1971,4068; and EX. de Lima, Intervention in International Law, 1971.

2

"Declaration on Principles of International Law Concerning Friendly Relation s and Cooperation Among States in Accordance with the Charter of the United Nations" , Annex to General Assembly Resolution 2625 (XXV), 24 Oct. I970.

3

See E. Wehser, "Die Intervention nach gegenwiirtigem VOlkerrecht" , in B. Simma and E. Blenk-Knocke (eds.), Zwischen Intervention und Zusammen arbeit, 1979,23-54,28-32.

4

On this dilemma see ibid., 42-43 (with literature).

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in this paper, including the use of armed force, despite the dogmatically different view of the present writer. Just as vexing is the failure to connect non-intervent ion with countermeasures under the law of State responsibility, and to identify the latter as an exception to the former. This question will be examined in sections 1lI (D) and IV below. Another serious omission relates to the qualit y of the principle of non-intervention. Although this is of cardinal importance , the FRD does not even touch on the question whether the principle belongs to the peremptory norms of international law. If it does, it cannot not be validly changed or suspended between individual States, since peremptory norms can only be modified "by the international community of States as a whole", to borrow the language of Article 53 of the Vienna Convention on the Law of Treaties (Vienna Convention). In this connection, it is worth noting that the Charter ofthe United Nations does not mention the principle as a maxim for relation s betw een its members. It only refers to it in Article 2, paragraph 7, of the Charter as governing the relations between the Organization and its members, and it is doubtful whether its content is identical in both situations.' The widespread belief that the FRD defines only principles which are exp ressly mentioned in the Charter is therefore erroneous. Implicitly, however, the principle is included in the Charter, because it derives from another, even more fundamental principle, that of sovereign equality, to which the Charter refers in Article 2, paragraph 1. When, in the fourteenth century, the post-glossator Bologna school described the first claims to sovereignty, they spoke of "p rincipes supe riores non recognoscentes" (Bartolus), or "rex in suo est imperator regni sui" (Baldus). The rejection of alien authority to interfere with a prince's affairs is thus one of the earliest mentioned characteristics of sovereignty. In modem terms it means that one State lacks juri sdiction to interfere with the exercise of sovereignty by another State. Although a State has evidently the capability of defying that limit by its actions, in so doing it acts unlawfully and has to bear the consequences. The protected sphere is defined by "matters which are essentially within the domestic jurisdiction of any State"," to use the language of Article 2, pararaph 7, of the Charte r. Which matters are essential is not exactly known ," but

5

6 7

Cf. F. Ennacora, 'Co mmentary on Art. 2 (7)', in B. Simma (ed.), The Charter ofthe United Nations, 1995, passim and MN 29. Italics supplied. Despite the host of literature which exists on the subject. The uncertainty is again the result of the political aspect of the notion. "Essentially" shall apparently signal dynamism and, hence implicitly, a possible change of substance with the times.

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what sovereign equality shal1 doubtless protect is the existence of the State as a self-determined human community, because it would otherwise cease to be imperator regni sui. Since the principle of non-intervention derives thus necessarily from sovereignty, which in tum is one of the basics on which the international community of States is built, one would assume that it was part of jus cogens. Yet the consequence of this categorization, the prohibition to deviate from it, raises a number of questions in respect of past and current State practice. Not the least of these questions concerns membership in the European Union. Reading Articles 6 and 7 of the Treaty of the European Unions together, one is faced with a dilemma : construed conservatively, they seem to violate a presumably peremptory norm of international law and would therefore be nul1 and void in accordance with Article 53 of the Vienna Convention. On the other hand, one could consider them as an indication that relations among members of the European Union were, at least partially, no longer governed by international law, but by the rules of a quasi-federal community sui generis, comparable to a State. And yet, if one adopts the latter opinion, how does that reflect on the sovereignty of the members?

8

The relevant text reads: Article 6 I. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. Article 7 I. The Council, meeting in the composition of the Heads of State or Government and acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting the government of the Member State in question to submit its observations. 2. Where such a determination has been made, the Council, acting by a qualified majority, may decide to suspend certain rights deriving from the application of this Treaty to the Member State in question, .. . 4. For the purpose of this Article, the Council shall act without taking into account the vote of the representative of the government of the Member State in question .... Cf, also F. Schorkopf, Homogenitiit in der Europiiischen Union - Ausgestaltung und Gewiihrleistung durchArt. 6Abs.l undArt. 7 EUV(2000), 211-213 .

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II. THE HISTORY OF THE UNITED NATIONS DEFINITlON OF INTERVENTION

Since , as suggested above, the examination of the legal substance of the principle of non-intervention should conveniently start with the analysi s of its formulation in the FRD, a short account of the latter's genesis is indicated." In 1962, at the apex of the "peaceful co-existence" mania, which is reflected in its title and text, the General Assembly of the United Nations resolved in Resolution 1815 (XVII): to undertak e, pursuant to Article 13 of the Charter, a study of the principles of international law concerning friendly relations and co-operation among States in accordance with the Charter with a view to their progressive development and codification so as to secure their more effective application .. , Incidentally, whether intended or not, the Resolution implies that the previous application of these principles had left much to be desired . Contrary to the apparent expectation, however, their solemn proclamation has not materially changed that, at least as far as one can sec. In the year following that Resolution, the General Assembly set up a "Special Committee" for its implementation and, by Resolution 1966 (XVIII) , referred to it the following four principles for consideration: (a) non-use of force; (b) peaceful settlement of disputes ; (c) non-intervention; and (d) sovereign equality. Two years later, Resolution 2103 A (XX) added three further principles to the agenda of the Committee: (e) equal rights and self-determination; (f) cooperation; and (g) good faith. As directed, the Committee finished its work in time for the 25th Jubilee Session of the General Assembly in 1970, during which the FRD was adopted by consensu s. 10 The formulation of the principle of non-intervention had, however, a separate and rather convoluted fate. During the 20th Session of the General Assembly (1965) the Soviet Union , which had in 1956 invaded Hungary and was to repeat that feat three years later in Czechoslovakia, cynically exploited the indignation of Latin

9

10

For a comprehensive analysis see G. Arangio-Ruiz, "The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations", RdC 136(1972),419-742; and H. Neuhold, Internationale Konflikte - verbotene und erlaubte Mittel ihrer Austragung (1977) . FRO, supra note 2.

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American countries, but obviously also of many other non-aligned States, about the 1965 intervention of the United States in the Dominican Republic, by requesting the inclusion of an additional agenda item" entitled "The inadmissibility of intervention in the domestic affairs of States and the protection of their independence and sovereignty". The title of the requested agenda item, as well as the attached draft resolution," which was devoid of any general significance or legal substance, made it clear that they were solely designed to embarrass the United States of America. However, a Latin American draft!' and, particularly, a draft by 57 non-aligned, mostly African and Arab States," changed the thrust of the proposed resolution from the EastWest conflict towards the North-South conflict. These later drafts prevailed over the Soviet one, and an amalgamated version of them was recommended by 100 votes to none with five abstentions (Australia, Belgium, Netherlands, New Zealand, United Kingdom) to the General Assembly, where it was adopted with 109 votes, with none against and only one abstention (United Kingdom) as Resolution 2131 (XX) . Since the final version of that Resolution was drafted in caucuses of the various sponsors and then recommended for adoption by the First Committee, a political body, the drafting history is not well documented and the recorded proceedings do not help in clarifying the legal ambiguities of the text. Fortunately however, there are auxiliary sources; the text did not appear out of the void. The debate in the Sixth Committee of the General Assembly preceding the establishment of the Special Committee is documented" and many elements of the definition in resolution 2131 (XX) came from proposals submitted to the 1964 Special Committee." These travaux preparatoires permit a certain, though

11

N5977 , 24 Sept. 1965.

12

Reissued as NAC . 1/L.343/Rev.I.

IJ

N AC.l/L.349/Rev.1 and Add . I.

14 15

16

NAC.I/L.353/RevA and Add. I. See "Systematic Summary of the Comments, Statements, Proposals and Suggestions of Member States in Respect of the Consideration by the General Assembly of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations" , AI AC.119/L.I , 24 June 1964, paras 173-217. See Report of the Special Committee, A/5746, 16 Nov. 1964, paras 202-292 .

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nevertheless limited, insight into the meaning of the text and the legal substance it contains . 17 This is felicitous, because the 1966 Special Committee, acting on a proposal by Chile and the United Arab Republic, decided that Resolution 2131 (XX) "by virtue of the number of States which voted in its favour, the scope and profundity of its contents and, in particular, the absence of opposition, reflects a universal legal conviction which qualifies it to be regarded as an authentic and definite principle of international law", wherefore the Committee would abide by its text. IS The decision was not unanimous : 22 members of the Committee voted in favour; eight (United States, Australia, Canada, France , Italy, Japan , Netherlands, United Kingdom) against, and one (Sweden) abstained." The Western States, which had intended to improve the legal substance of the text, had failed." Resolution 2131 (XX), with only minor drafting changes and with the deletion of its more obvious ideological ornaments," became the text of the definition of non-intervention in the FRD and was, in the conciliatory spirit during the 25th Jubilee of the United Nations, adopted with the rest of the principles by consensus.

III. LEGAL ELEMENTS OF THE UNITED NATIONS' INTERVENTION DEFINITION

The FRD defines the principle of non-intervention" in the following manner: No State or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. Consequently, armed intervention or attempted threats against the personality

17

Infra, section III.

18

See Report of the Special Committee, N6230, 27 June 1966, paras 292-300 and 334-352 .

19

Ibid., para. 340.

20

21

22

See P.-H. Houben , "Principles of International Law Concerning Friendly Relations and Cooperation Among States" , AJIL 61 (1967),703-736,716-718. See Report of the Drafting Committee (of the 1970 Special Committee), NAC.125/L.86, 1 May 1970; it deleted paras 4 and 6 of Resolution 2131 (XX). Both works cited in note 9 deal also in detail with the principle of non-intervention in the FRO. In addition see T. Mitrovic, "Non Intervention in the Internal Affairs of States" , in M. Sahovic (ed.), Principles ofInternational Law Concerning Friendly Relations and Cooperation (1972), 219-275.

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of the State or against its political, economic and cultural elements , are in violation of international law; No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite to tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State; The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention; Every State has the inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State; Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security. It is evident that even this expurgated version of Resolution 2131 (XX) is still distinctly characterized by dated cliches, much favoured by non-aligned countries at the time, like anti-colonialism, anti-imperialism, anti-apartheid, et cetera. If one searches for a generally usable legal substance of the principle, as distinct from its function as a political postulate," one has to ignore the political oratory and concentrate on two central questions : (a) The nature ofthe act . What sort of foreign State act constitutes an intervention? What does "coercion" mean in this context and can its existence be objectively determined or is the subjective perception of the object State decisive?

23

Several attempts have been made to clarify the understanding of the non-intervention principle with the help of international relations theory. They have, however, not provided a radically new insight into its functioning as a legal principle. Cf. Neuhold, supra note 8, 342-356; H.G. Brauch, "Sozialwissenschaftlicher lnterventionsbegriff und externe Einwirkungsphanornene im Bereich der internationalen Beziehungen", in B. Simrna and E. Blenk-Knocke (eds.) , supra note 3, 55-120; and the summing up by W. Pfeifenberger at 519-527.

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(b) The nature a/the purpose. Does the purpose of a foreign State act qualify it eventually as intervention? In other words : is it the aim to be achieved by the act in question which makes the act ultimately an intervention?

Debates in the Sixth Committee prior to 1964 show that attempts to achieve a general and abstract definition of non-intervention fall easily into the trap of tautology. What else can one say of a Chilean statement "that intervention had been defined as intervention by one State in the internal or external affairs of another State in order to force the latter to do as the former wishes";" or of the Iraqi idea that "there was intervention on the part of a State as soon as it encroached upon the jurisdiction of another State, in either internal or external affairs"?25With such a definition one still would not know when a State was "forced" or when its jurisdiction was "encroached upon". A contribution by Cuba was more enterprising when it proposed that "intervention could be accurately defined as the intention, express or not, of a State or group of States to replace the power of decision of another State or States with their own"." Yet again, one would not know whether "intention" alone was sufficient or whether an act was required - or was it the intention of the act which was meant? - and how the replacement of decision-making was effected. This confirms the sage observation by a Mexican representative that "intervention, like life itself, was so fluid and changeable that it would always escape the confines of any definition . The long and fruitles s effort to define aggression contained a valuable lesson : there were phenomena which it was better not to define" . Bewilderingly however, he went on to conclude: 'The public and the jurists were always able to identify intervention when a particular instance arose"." Pragmatically, this seems a cogent conclusion; as assessment of a legal principle it is devastating. States will hardly abide by a principle which has to be discovered by an accidental method in each particular instance , not to mention the danger that each protagonist might "discover" his own version of it. This may have been the reason why the discussions in the 1964 Special Committee, the last before Resolution 2131 (XX) was adopted in 1965, had focussed rather on elements through which either forbidden acts or the protected sphere could be described. Because of the limitations inherent in the decision-finding

24

See sup ra note 15, para. 197.

25

Ibid., para. 198.

26

Ibid., para. 199.

27

Ibid., para. 196.

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process in the Special Committee, however, these attempts could not achieve more than simple truisms. This can be demonstrated by the consideration of the term coercion. 28

A. In pursuit of the elusive coercion Written proposals before the Special Committee by Yugoslavia (N AC.119/L.7),29 by Mexico (NAC.II9/L.24),30 and by Ghana, India and Yugoslavia (NAC.119/ L.27)31 used the term "coercion" or "coercive measures" . In trying to define the term in more detail, imaginative ideas were expressed in discussing these proposals, but none could keep clear of the tautology trap. Reference was, for example, made to Article 15 of the Charter of the Organization of American States, which provides inter alia that "[tlhe foregoing principle prohibits not only armed force but also any form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements".32However, defining intervention by "interference" and "attempted threat" does not really clarify the term. A more useful suggestion was made in the following terms: [I]t was the coercive nature of an act of interference which made that act "intervention" [sic], whether the act in question involved the use of force or merely economic or political pressure. Interference must manifest itself by action or inaction , or by a threat of a hostile nature or deemed to be hostile if the State in question did not yield to it. That did not mean that to constitute intervention the act of interference must in fact force the victim State into compliance. Even if that State refused to be coerced or intimidated by threats, there might be an intention on the part of the intervening State to coerce the sovereign will of the other State. According to the general

28

Specific documents which are referred to in the text are reproduced in the "Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States", cited supra note 16.

29

Ibid., para. 204; operative para. 3(a).

30

Ibid., para. 208; operative para. 2(1).

31

Ibid., para. 209; operative para. 2.

32

Ibid., para. 239.

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principles of law, the intention of the agent could be presumed from the nature of the act performed. According to Calvo, the form which the intervention took did not in any way change its nature . Intervention could be practised by process of diplomacy. It could be more or less direct, more or less overt. It could be directed against the internal or external affairs of the State [.. .] .33 Another representative believed that coercion consisted of the "dictatorial exercise of influence over the internal affairs or foreign policy of a State, aimed at destroying its markets , violating its laws, damaging its prestige and reputation, controlling its policy or subverting its government. It included such activities as propaganda, espionage, infiltration, bribery, assassination, assistance to guerrillas , and peremptory diplomatic demands. However, it was only when such activities were carried out by agents of a government with a view to controlling or subverting the government of another State that they contravened the principle under con-

sideration"." For yet another representative coercion was "the abnormal or improper pressure exercised by one State on another State in order to force it to change its internal structure in a direction favourable to the interests of the State applying such coercion't." These examples are given to show that none of the expressed beliefs or suggestions help to identify the distinctive characteristics of coercion as a constituent element of intervention. "Dictatorial exercise of influence" or "abnormal or improper pressure" just substitute other undefined (and probably undefinable) terms for the undefined term "coercion". It seems that without taking the intention of the author of the coercion into account, a matter which will be considered later, one does not get closer to understanding intervention. The Special Committee appears to have recognized this and adapted its approach accordingly, seeking to identify acts of coercion , which were prohibited under the principle of non-intervention." Some of the acts suggested for consideration were clearly the result of apprehensions existing at the time, which are either no longer relevant or have taken on another significance. Some are, however, relevant because they reappear in formulations of the FRD. Among them "coercive measures of a political or economic nature to force the

33

Ibid., para. 240.

34

Ibid., para. 241.

35

Ibid., para. 242.

36

Ibid.• paras 250-290.

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sovereign will of another State in order to obtain advantages of any kind" 37 are pertinent to the present context. While the discussion did not lead to a clarification of the notion of "coercive measure", it helped putting the problem involved into better perspective. One representative argued that "[ w]hat the Committee should be concerned with was not the influence that States normally exerted on each other, but solely with cases of manifestly unlawful pressure. It had been argued that it was impossible to draw up in advance a general definition of the term "unlawful pressure ", and that reference to such pressure was therefore undesirable. That argument was hardly convincing. There were many juridical concepts, even basic ones, which did not lend themselves to precise definition . The difficulties which would face the organs that would have to apply the concept of "coercive measures of an economic or political nature" would be the same as those resolved every day by courts all over the world and by the political organs in all countries which applied juridical rules. Those rules should be applied in a reasonable way, taking account of the times, the environment and political, economic, social and juridical trends. [. ..] In any event, the difficulty of defining certain terms precisely could not be used as an argument to demolish the principle that some kinds of pressure were unlawful and constituted intervention. To fail to brand such kinds of pressures as intervention, on the pretext that it was difficult to define them, would be tantamount of legalizing them" .38 Another representative spotted the apparent flaw in that argument and rejoined that "I ...] while some concepts could be used within the legal system of a State, since there were tribunals which were particularl y well equipped to give an authorized interpretation of them, there was no such general and automatic resort to tribunals within the international system. Without some body authorized to give a binding interpretation, there were no effective means of resolving the wide differences of opinion which would arise if a formulation of the nature here under consideration were to be adopted "." That is precisely what has happened . To mention just one example : A whole library has been written on what is or what is not "economic coercion".'? On the

37

Ibid., paras 261-264.

38

Ibid ., para . 263 .

39

Ibid. , para . 264 .

40

It is not possible to provide an exhaustive list. Remarakable contributions are inter alia D.W. Bowen, "International Law and Economic Coercion", Virginia Journal ofInternational Law 16 (1975-1976), 245-259; and D.C. Dicke , Die Intervention mit wirtschaftl ichen Mitteln im VOikerrecht (1978) .

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other hand, it requires a certain ingenuity to subsume novel phenomena, like "intervention" through the exercise of extraterritorial jurisdiction," under the term "measures to coerce", used in the text. It seems, therefore , that "coercion", except when it consists of a blatant military operation or a public threat , cannot be satisfactorily defined in an abstract manner. Especially when it takes the form of a threat , it is primarily the perception of the victim State which makes it feel threatened. Unless both parties involved are bound to a mechanism which enables an international organ to evaluate the situation , the international system does not provide a procedure for establishing the validity of such subjective feelings. This confirms the submission that intervention cannot be defined merely through the nature of the acts involved. To sum up the preceding analysis : The detectable elements of "coercion" consist of an action by a foreign State which, in the victim 's perception, harms its interests, or threatens it with it, and is undertaken with a view to obtaining thereby a concession which it is essentially within the domestic jurisdiction of the victim to grant or to refuse, but which it would not grant of its own free will; always provided that the intervening State is neither justified to take the action nor legally entitled to the concession. It is, therefore, the purpose of the action which is decisive or, in other words, the nature of the demand which the intervening State seeks to enforce with its "intervention". Two separate aspects of this purpose require examination: first, whether the action or threat infringes the protected domestic jurisdiction; and secondly, whether the action or threat is legally justified by a relevant international right of the "intervening" State.

B. Domestic jurisdiction Domestic jurisdiction or, more correctly, matters which are essentially within the domestic jurisdiction of States, is still the subject of scholarly and political

41

Cf e.g. D.W. Bowett, "Jurisdiction: Changing Patterns of Authority over Activities and Resources", in R.StJ. Macdonald and D.M . Johnston (eds.), The Structure and Process oflnternational Law, 1983,555-580. On the peculiar United States position cf A.V. Lowe, "The Problems of Extraterritorial Jurisdiction : Economi c Sovereignty and the Search for a Solution", ICLQ 34 (1985) , 724-746 ; and A. Reinisch, "Widening the US Embargo against Cuba Extraterrit orially: A Few Public International Law Comments on the 'Cuban Liberty and Democratic Solidarity (LmERTAD) Act' of 1996", EJIL 7 (1996), 545-562 .

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dispute." The consequent uncertainty, which has troubled the United Nations since 1945, has not been cleared up by the discus sions which preceded the formulation of the non-intervention principle in the FRD. Nearly all representatives which addressed the issue in the Sixth Committee of the General Assembly prior to the 1964 Special Committee used enumeration for describing the essence of domestic jurisdiction, specifying certain State functions which, they felt, made up the reserved sphere." The same method was generally followed in the Special Committee, with the exception of one representative, who observed "that the principle of non-intervention simply protected the freedom of choice without which an independent State could not exist as such, a freedom frequently termed the 'domestic jurisdiction' of a State" .44 But he, too, added a list of functions which he considered "essential"." As a result of this approach the relevant text of the FRD is an unsystematic mixture of vague general formulations, lending themselves to conflicting interpretations, and a list of certain forbidden acts and some protected State functions, which mayor may not be exhaustive. However, during the debate an interesting reference was made to the Advisory Opinion of the Permanent Court of International Justice on Nationality Decrees Issued in Tunis and Morocco (French Zones), which recognized that the international character of a question was a consequence of the acceptance of international obligations concerning it. Even if a matter was not in principle regulated by international law, the right of a State to use its discretion might nevertheless be restricted by obligations undertaken towards other States and in such cases jurisdiction was limited by rules of intemational law.ss It must be pointed out, though, that the Court's point of reference was Article 15, paragraph 8, of the Covenant of the League of Nations which reserved matters that were solely (fr. competence exclusive) within the domestic jurisdiction of States. It is a matter of debate whether "solely" covers the same sphere as "essentially". The offhand remark by one representative on the Special Committee that "[i]f anything, the reserved sphere was even more extensive in the Charter than in the Covenant'?" represents but one end

42

See note 7.

43

Supra note 15, paras 187-194, esp. 189.

44

Supra note 16, para. 235.

45

Ibid .

46

peIJ, Series B, No.4 (1923), 23.

47

See supra note 15, para. 236 .

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of the range of opinions. Moreover, as has been mentioned earlier," it is debatable whether non-intervention has the same meaning in inter-State relations as it has in the relations between an international organization and its members. Thus the reference to the Advisory Opinion does not settle the disagreement authoritatively. Some may still argue that an international obligation might concern a matter which was nevertheless essentially within the domestic jurisdiction of the State in question .

C. Permissible interventions? Permissible interventions were another bone of contention. Although the term has an awkward ring, it refers to an important issue of which two aspects need closer inspection. One is the unresolved question how to draw the line between legitimate pressure in diplomatic negotiations on the one hand, and illicit intervention on the other." The subject of negotiations may well be a matter which falls essentially within the domestic jurisdiction of one or both negotiating States , yet one or the other party may try to influence the necessary decision of the other by vigorous bargaining. That tactic may well include gambits which warn against a deterioration of relations, and thus a possible disadvantage to the other side, should the negotiations fail. Hence the mere fact that matters essentially within the domestic jurisdiction of one or both negotiating States are affected by the dealings is not a decisive sign of intervention. Nor does an additional search for possible coercion help to distinguish between the legitimate and the illicit. As has been shown, the existence of coercion is almost impossible to establish if it does not consist of an overt act or public threat but is only subjectively perceived . Moreover, how does one deal with diplomatic complaints? Their very purpose is to demand a change of position. If the demand is made by a big power and is directed towards a weak State, the latter may well feel threatened by it. But should this possibility suffice to forbid big powers to remonstrate? The uncertainty increases even further when the phrase "to secure from it advantages of any kind", which is used in the FRD to describe one illicit purpose of an "interventionist" demand, is taken into account.

48 49

See supra note 5.

Cf Arangio-Ruiz, supra note 9, 553: "Every State may feel entitled to discuss as acts of intervention the most normal tools of diplomacy." See also Wehser, supra note 3, 43-45; and L. Fisler Damrosch, "Politics Across Borders: Non-intervention and Non-forcible Influence over Domestic Affairs", AJIL 83 (1989) ,1-50, esp. 28-34 .

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The phrase is so all-embracing that one wonders whether the drafters knew what they were doing. Since one cannot define coercion in a generally acceptable and legally satisfactory manner, any demand, however phrased, could be denounced as intervention . Although aware of the problem, the members of the Special Committee were apparently not in a position to adjust the text accordingly because, as one of them put it, "such a distinction would only serve to justify one category, so-called lawful intervention"." Although one fails to see what sort of danger the clarifying of muddy waters would have created, it is a fact that the definition remains obscure in this respect.

D. The missing countermeasures But this is not the only and not the gravest omission. Of even greater consequence is the Special Committee's failure to take the relation between countermeasures under the law of State responsibility and intervention into account. When a State whose international rights have been violated by another is authorized by the law of State responsibility to demand reparation and, if it is not obtained, to apply countermeasures, the concomitant steps may superficially appear as intervention if the decision required from the answering State can be construed to be essentially within its domestic jurisdiction. All the elements seem to be present: the possible infringement of domestic jurisdiction and coercion in the form of the countermeasure. Yet, there is a fundamental difference: countermeasures are legitimate means to enforce the law and are of necessity exceptions to the protection which the principle of non-intervention normally ensures, even if the principle were part of jus cogens ; in this case the exception must be an essential part of the peremptory norm, as otherwise the whole corpus of international law would consist of nothing but leges imperfectae. By disregarding countermeasures in the FRD's definition of the principle of non-intervention, the path was opened for construing a conflict between the protection of human rights and non-intervention. That countermeasures are an exception to non-intervention was implicitly recognized in some passing remarks made during the debate of the principle in the United Nations . One representative observed that " ... it might be queried whether any matter which is the object of rules of customary international law, or of

50

Supra note 16. para. 249.

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treaties, might be said to be legally outside all concern and action of the United Nations or of States . The more closely the international community was integrated the more the area of exclusive concern of individual States was limited and the more closely-knit the international legal framework, the wider the area of legitimate international concern.">' Another argued: "In any event, a State could not invoke its sovereignty in order to justify a violation of the rights of another State, nor could a protest or a demand for reparations from such other State be considered illicit intervention.t'v However, one representative addressed the matter squarely: "[T[he principle of non-intervention had its inherent limits and could never be invoked .. . in order to declare illegal the measures which a State might take to counteract a violation of its rights. Even if such countermeasures could be considered as a form of 'pressure', they could not be characterized as unlawful intervention in matters within the domestic jurisdiction of another State."53 In this connection, it is striking that already in the 1960s some States insisted specifically on the exception of the international protection of human rights from the prohibition of intervention.>' As Sierra Leone expressed it succinctly: " .. . there should be no interference in the internal affairs of other countries, but this should not prejudice the duty (sic) of one country to protest in any appropriate way against internal conditions in another which are inhuman .. ." .55 A single explicit opposition to the general idea came from Cyprus which observed "if a State party to a treaty considered that another party had not discharged its commitments, it was not entitled to intervene in a dictatorial way .. ."56 a position which can perhaps be explained by Cyprus' experience with Turkey but is generally untenable in the light of the law of State responsibility; unless one considers "dictatorial" to mean "military" or "armed", in which case it is prohibited by the non-use of force principle, not by non-intervention. In any event, none of this is reflected in the FRD's formulation of the principle of non-intervention. The core issues of diplomatic negotiations and of State re-

51

Supra note 15, para. 192.

52

Supra note 16, para. 235.

53

Ibid., para. 264. views were expressed to the effect that a claim of domestic jurisdiction could not be validly advanced in respect of .. . [h]uman rights (Cyprus , Finland , Sweden)". Supra note 15, para. 194 (c).

54 " .. .

55

Ibid., para. 186.

56

Ibid., para. 205.

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sponsibility are left unregulated, which in the case of countermeasures (reprisals) is all the more amazing as they are dealt with in the context of the principle of nonuse of force, also defined in the FRD, which bans the use of force in their execution.

IV. THE PROTECTION OF HUMAN RIGHTS AS ERGA OMNES OBLIGATION

Since the adoption of the definition of the principle of non-intervention, more than 30 years have passed . During that period the concept of erga omnes obligations has considerably evolved," in particular in respect of obligations which protect human rights. The norms creating erga omnes obligations differ at least in one respect fundamentally from norms of traditional international law. The latter have a bilateral performance structure, which means that rights and obligations exist between two specific States even if they derive from a multilateral treaty like the Vienna Convention on Diplomatic Relations or the Vienna Convention on the Law of Treaties. Standard-setting conventions, such as conventions protecting human rights or the environment, have a different performance structure. They prescribe a conduct which is unrelated to any specific right of the other contracting parties under the convention. However, the obligation to conduct itself in accordance with the prescribed standard exists towards all other contracting parties, and is, therefore, an obligation erga omnes/" safeguarding thus indirectly the observance of the specific human rights forming the standard . The novelty of this characteristic performance structure was bound to cause clashes with the principle of non-intervention in cases where a party to a standardsetting convention accused another of non-performance." The objects of a tradi-

57

See Karl Zemanek, "New Trends in the Enforcement of erga omnes Obligations", Max Planck Yearbook of United Nations Law 4 (2000), I-52 .

58

Ibid ., 8-9. Cf further J.A. Frowein, "Die Verpflichtungen erga omnes im Volkerrecht und ihre Durchsetzung ", in R.Bernhardt et at. (eds.), Yolkerrecht als Rechtsordnung - Internationale Gerichtsbarkeit - Menschenrechte, Festschrift fur H. Mosler (1983),241 et seq. ; and C. Annacker, "The Legal Regime of Erga Omnes Obligations in International Law", Austrian Journal ofPublic International Law 46 (1994), 131 et seq .

59

Cf O. Corten, Droit d'ingerence ou obligation de reaction ? Les possibilites d'action visant Ii assurer le respect des droits de la personne face au principe de non-intervention, 1992; and

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tional inter-State treaty are international rights and obligations. A contracting party may claim performance of the rights under that treaty on the international level, but the manner in which another contracting party ensures this performance under its domestic law is indeed a matter within its domestic jurisdiction and a foreign request regarding this matter can legitimately be rejected as intervention. In respect of standard-setting conventions, however, the argument must fail. The purpose of these conventions is the establishment of a uniform standard of those rights which are their object within domestic legal orders, which makes the substantial rights those of individuals rather than States. This different performance structure of the norms requires a reconsideration of the intervention argument. If such conventions are to be regarded as establishing legal obligations, and not as simple hortatory proclamations, they must eventually be enforceable under international law. As the protected individuals have no general standing in that law,60 the right to request implementation of the obligations, including the right to point out eventual shortcomings, is vested in the other contracting parties." The changes in international law which this development has caused are particularly manifest in the law of State responsibility, as demonstrated by the draft which the International Law Commission is currently preparing on the subject. In the draft , as adopted on first reading in 1996,62 article 40, paragraph 2 (c)(iii), identified any party to a multilateral treaty or any State bound by a rule of customary international law protecting human rights and fundamental freedoms as "injured State" in case of an infringement by another contracting party or State bound by the rule of customary law respectively. This meant that each of them had the right to request from the author of the infringement the performance of all secondary obligations deriving from State responsibility (articles 41-46) and to react to an eventual non-performance with countermeasures (article 47). No distinction was made between a State directly injured by the violation of a bilateral obligation and a State indirectly injured by the infringement of an erga omnes obligation.

H.-J. Blanke , "Men schenrechte als volkerrechtlicher Interventionstitel", AVR 36 (1998) , 257 et seq. 60

61

62

For available special procedures see Zemanek , supra note 57, 15. See B. Simma, "From Bilateralism to Community Intere st in International Law" , RdC 250 (1994),229 et seq. , 296-297 ; and Zemanek , supra note 57,9-10. The articles adopted on first reading are reproduced in the Report of the International Law Commission on the Work of its 48th Sess. (1996) , UN GAOR 51st Sess . Doc. N511I0 , 125151.

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Moreover, article 19 of the draft introduced the concept of "international crimes" , which included, inter alia, "a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid". Articles 52 and 53 provided in this case for special consequences and obligations for all States, in addition to the consequences of a simple internationally wrongful act. Some of these dogmatically ambitious constructions provoked severe criticism.v but all raised practical questions to which answers were difficult to find." This induced the current Special Rapporteur, James Crawford, to opt for a different approach/" and his concept was by and large accepted by the International Law Commission during the review. According to article 49 of the draft as adopted on second reading," "States other than the injured State are entitled to invoke the responsibility of another State if (a) the obligation breached is owed to a group of States including that State and is established for the protection of a collective interest; (b) the obligation breached is owed to the international community as a whole". By thus separating the States affected by the breach of an erga omnes obligation from the "injured State", it became possible to assign to them more limited secondary rights : they may request "cessation of the internationally wrongful act, and assurances and guarantees of non-repetition"; the latter, if circumstances so require . In addition, they may request reparation "in the interest [... ] of the beneficiaries of the obligation breached". This original idea raises a number of questions which are not, or not yet, answered by the draft. To mention but one: assuming that the beneficiaries of a violated human right are nationals of, and residing in, the perpetrator State, the claimant State would act for foreigners. As all parties to the applicable human rights treaty have the same right, how should an eventual multitude of claims be co-ordinated? At present, the draft has no relevant provision since article 54 requires co-operation only if more than one State take countermeasures. It would

63

64

65 66

Cf e.g. J.H.H. Weiler, A.Cassese and M. Spinedi (eds .),Internationai Crimes a/States, 1989; and R. Rosensto ck, "Crimes of States - An Essay", in K. Ginther et al. (eds.), Yolkerrechi zwis chen normativem Anspruch und poiitischer Realitdt, Festschrift fiir K. Zemanek (1994), 319-334 .

See Zemanek , sup ra note 57, 28-30 . See his Third Report on State Responsibility, Doc. A/CN.4/507 and add. (2000) . The Text of the draft articles provisionally adopted by the Drafting Committee (of the ILC) on second reading are reported in the Report of the ILC on the work of its 52nd Session , GAOR 55th Session (2000), Suppl. No. 10 (Doc. N55/1O) , 124 et seq .

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seem more appropriate to require co-operation in this specific case from the time when, according to article 53, the claimant State notifies the responsible State of its decision to take countermeasures and offers to negotiate. Claims should already be jo ined at that level of proceedings. Another innovation concerns the right of a "State other than the injured State" to take countermeasures. According to article 54 it may not enforce its own secondar y right to request cessation and, eventually, guarante es of non-repetition ; nor may it enforce an eventual claim on behalf of the beneficiaries of the obligation breached , unless the breach of the obligation "involves a gross and systematic failure by the responsible State to fulfil the obligation, risking substantial harm to the fundamental interests protected thereby", which includes, in other words, systematic and/or massive violations of human rights (article 41, paragraph 2, in connection with article 54, paragraph 2). These proposals, as they stand now, give rise to some doubt s. On the one hand it seems strange that, by not granting them a right to countermeasures, the secondary rights of "States other than the injured State" are reduced to toothless exhortion s. On the other hand, one wonders what to make of the duty, stated in article 42, paragraph 2 (c), in case of the serious breach mentioned above, that they should "co-operate as far as possible to bring the breach to an end". It is not clear how this obligation may be discharged. Co-ordinated countermeasures are only possible when claims in the interest of the beneficiaries of the violated right have been lodged by several States. If that is not the case, should the obligation be understood as an invitation to "humanitarian interven tion"? Whatever one may think of the draft at its present stage - it may yet be modified in the light of comments which States were invited to submit before the next session of the International Law Commission - it makes one thing absolutely clear: the violation of erga omnes obligations entitles all States which are parties to the respective multilateral treaty or bound by applicable rules of international customary law, to request performance of the obligation without violating the duty not to intervene in matters which are essentially within the domestic juri sdiction of the responsible State. It is submitted that this implies that the decision-making power concerning the implementation of international obligations designed to protect fundamental values or interests, particularly those protect ing the human person and its safe existenc e, which have been undertaken toward s a community of States formed by a treaty or toward s the international community as a whole, has ceased to be an essential element of domestic jurisdiction and, hence, of sovereignty. In this respect, the applicability of the Advisory Opinion of the Permanent Court of

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International Justice on Nationality Decrees Issued in Tunis and Morocco (French Zone) 67 has been confirmed by modem developments.

V. CONCLUSIONS

And yet, the clarification of the legal situation provides only half of the answer to the question raised in the title of this paper. As stated at the beginning, non-intervention is a political principle , sitting astride the fence between law and politics. Demonstrating the lawfulness , under certain circumstances and in certain forms, of intervention for the protection of human rights is one thing; the political attitude of States towards the use of this possibility is another. Outside Europe and North America, that is to say, outside the so-called Western World, intervention for whatever reason and in whatever form is viewed with mixed feelings . Moreover, the justification of human rights related intervention suffers from the cultural divergence between the occidental faith in the autonomy of the individual , which is the fruit of eighteenth century enlightenment, and the more community-oriented values predominant in other religious or social systems, like Islam or Confucianism, for instance. Even in Europe it took the members of the Conference for Security and Co-operation in Europe a long time, in fact until the Moscow Meeting of the Conference on the Human Dimension in 1991, to agree that compliance with the obligations of members in this field "was not an exclusive matter of the State concerned" .68 And the recent Bangkok meeting of ASEAN, an organization which is traditionally cautious not to interfere in its members' affairs, took a timid step towards establishing a rotating "troika" to help deal more swiftly with emergencies - but made its action subject to consensus. Because of previous experiences, African and Central American States are equally sensitive. That widespread mood is reflected in the "Vienna Declaration" of the World Conference on Human Rights (1993) which admits only by implication that compliance with human rights obligations is a matter of international concern. Although it is, certainly, no longer a generally shared view that compliance with a human rights obligation is subject only to the exclusive judgment of the State having accepted the obligation, there exists, on the other hand, probably no consensus

67 68

See text accompanying note 46 supra. See S. Pollin ger, Der KSZEIOSZE Prozess, Laxenburger lnt ernationale Studien 12, (1998) , 110.

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within the international community as a whole in this sense. It will, therefore , very much depend on the kind of human rights violation and on the subjects of the violation, whether a lobby of States in favour of using the available lawful means to end it, will form.

976

44 IMPLEMENTING THE STATUTE OF THE INTERNATI ONAL CRIMINAL COURT: THE GERMAN EXAMPLE Andreas Zimmermann

I. INTRODUCTION* All the way through the negotiating process leading to the adoption of the Statute of the International Crimin al Court, the Federal Republi c of Germany - as one of the members of the group of like-minded countries - has been one of the proponents of the creation of an effective International Criminal Court .' In order to further demonstrate this commitment to the implementation and continuous development of international criminal law.' German y has since the adoption of the Statute - after it had signed the Statute on 10 December 1998, i.e., the day when the Universal Declaration of Human Rights had been adopted 50 years earlier taken the necessary steps leading to the ratification of the Statute by the Federal

* I

2

Status of manu script: 200 I; as to the entry into force of the German Code of Crimes against International Law, see infra note 8. See inter alia the different articles by Hans-Peter Kaul , head of the German delegation during the negot iations, such as 'Der Intemationale Strafgerichtshof : Das Ringen um seine Zustiindigkeit und Reichweite' , Humanitiires Yolkerrecht (1998), pp. 138-144 and Durchbruch in Rom: Der Vel1rag iiber den Intemationalen Strafgericht shof, Vereinte Nationen (1998) , pp. 125-130 . For a similar view see F. Jarasch/C. Krell, 'The Rome Statute and the German Legal Order ', in C. KreBIF. Lattanzi (eds.), The Rome Statute and Domest ic Legal Orders. vol. I: General Aspects and Constitutional Issues (2000) , p. 91 et seq . (9 1).

LiC. Vohrah et al. (eds.), Man 's Inhumanity to Man , 977-994 ©2oo3 Kluwer Law International. Printed in the Netherlands.

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Republic of Germany on II December 2000. 3 Germany thus became the twentyfourth State to have ratified the Statute. Inter alia and in order to avoid any - if only potential' - conflicts with the prohibition to extradite German nationals as previously contained in Article 16, para. 2 of the German Constitution, this constitutional provision dealing with the extradition of Germans was also amended. It now provides' that, notwithstanding the general prohibition not to extradite German nationals, the legislature may provide for the extradition or surrender of German citizens to both international courts and tribunals and to member States of the European Union referred to in a specific law to be enacted , provided that due process rights are guaranteed. Thus, German law may provide in the future for the surrender of German nationals not only to the International Criminal Court but also to ad hoc tribunals already existing or still to be created by the Security Council under Chapter VII of the United Nations Charter," In the case of the International Criminal Court, however, and taking into

3

4

5

6

For the text of the ratification law, necessary under Art. 59 of the German Constitution, enabling the Government to submit the document of ratification with the depositary , also containing the official German translation of the Statute see Bundesgesetzblatt 2000 II, p. 1393 et seq. It was, however, doubtful whether such an amendment was indeed necessary, i.e., whether the surrender of a German national to the International Criminal Court (or to one of the ad hoc tribunals) would have amounted to a prohibited extradition, since Art. 16, para. 2 of the German Constitution, as it stood before the amendment, read: "No German may be extradited abroad" ("Kein Deutscher darf an das Ausland ausgeliefert werden") . For a more detailed discussion see A. Zimmermann, 'The Creation of a Permanent International Criminal Court', Max-Planck-Yearbook of United Nations Law (1998), p. 169 et seq . (225-226) ; W. Bausback, 'Art . 1611 GG und die Auslieferung Deutscher an den neuen Internationalen Strafgerichtshof', Neue luristische Wochenschrift (1999) , pp. 3319-3320 and B. Schobener/W, Bausback, 'Veifassungs- und volkerrechttiche Grenzen der " Uberstellung" mutma.fJlic her Kriegsverbrecher an den Jugoslawien-Strafgerichtshof", Die Offentliche Verwaltung (1996) , p. 621 et seq. and finally JaraschlKreB, supra note 2, at 99-104 ; and for a contrary position K. Schmalenbach, 'Die Auslieferung mutmaj3licher deut scher Kriegsverbrecher an das lugoslawientribunal in Den Haag', Archiv des VOikerrechts (1998), p. 285 et seq.

As to the text of the law amending Art. 16, para. 2 of the German Constitution see Bundesgesetzblatt 2000 I, p. 1633. As to the question whether courts such as the proposed Special Court for Sierra Leone or such as the courts created by the United Nations Temporary Administration for Eastern Timor fall within the scope of application of the new provision see A. Zimmermann, 'Die Auslieferung Deutscher an Staaten der Europiiischen Union und internationale Strafgerichtshofe : Dberlegungen zum neuen Art. 16 Abs. 2, S. 2 Grundge setz, Juristenz eitung ' 200 I, p. 233 et seq.

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acco unt the principle of compl ementarity enshrined in Article 17 of the Rome Statute," such a situation would obviou sly only arise in the unlikely case that Germany itself was either unwilling or unable to genuinely prosecute German nationals for having committed acts of genocide , crimes against humanit y or war crimes. It is indeed for this reason, amongst other s, that the German Government is considering to introduce draft legislation for a comprehensive Code of Crime s against International Law (Volkerstrafgese tzbuch),8 the detail s of which will be analyzed hereafter. Germany is also in the process of preparing a Law for the implementation of the Statute of the International Criminal Court (Ausfiihrungsge setz) which - whilst largely following the models of the previo us two German laws on cooperation with the ICTy 9 and the ICTR IO - will address the different forms of cooperation betwee n German authoritie s on the one hand, and the International Crimi nal Court on the other,' !

7

For details as to the content of the principle of complementarity see e.g. S. Williams, 'Article IT, in O. Triffterer (ed.), Commentary on the Rom e Statute of the Intern ational Criminal Court, p. 383 et se q. and J. Holmes, 'The Principle of Compl ement arity' , in R. Lee (ed.), The Internati onal Crimi nal Court: the makin g ofthe Rom e Statut e; issues, negotiations , result s, p. 41 et se q.

8

See W. Hermsdorfer , 'Zum Anpassungsbeda rf des deut schen Strafrechts an das Statut des Intern ationalen St rafge richtshofs ' ; Hum anit dres Volkerrecht ( 1999) , p. 22 et seq. As of July I, 2002, the German Code of Crime s again st International Law has entered into force (BGB!. 2002 I, p. 2254) which - mut atis mutandis is identical- to the project outlined below; for further detail s see G. Werle, 'Konturen eines deutschen Volkerstrafrechts: zum Arbeitsentwurf eines VOikerstrafgesetzbuches' , Juristenzeitun g 200 1, p. 885 et seq.; C. KreB, Yom Nutzen eines deutschen Yolkerstraf gesetrbuches (2000); H. Satzger, ' Das neue Volkerstrafgesetzbuch - eine kritische Wiirdigung' , Neue Zeitschrift fii r Strafrecht, p. 125 et seq.; S. Wirth, 'International Crimin al Law in Germany - Case Law and Legislation', availab le at ; as well as A. Zimmermann, 'Auf dem Weg zu einem deutschen Volkerstrafgesetzbuch: Entstehung, volkerrechtlicher Rahmen und wesentliche Inhalte ', Zeitschrift fiir Rechtspolitik 2002, p. 97 et seq.; G. WerlelF. JeBberger, ' Das Volkerstrafgesetzbuch ", Juri stenzeitung 2002, p. 725 et se q.; and most recently A. Zimmermann, 'Bestrafung volkerrec htlicher Verbrechen durch deutsche Gerichte nach Inkrafttreten des Volkerstrafgesetzbuches' , Neue Juristische Wochenschrift 2002 (forthcoming).

9

' Geset; iiber die Zusammenarbeit mit dem lnternationalen Strafgerichtshof'fiir das ehemalige Jugoslawien ' ; Bundesgesetzblatt 1995 I, p. 485 et seq .

10

11

' Geset; iiber die Zu samm enarbeit mit dem Internationalen Strafge richtshof fiir Ruanda (Ruand a-Straf gerichtshof-Gese tz)' , Bundesgesetzblatt 1998 I, p. 843 et se q. For detai ls seeA. Schlunk, 'Die Ums etzung des Statuts des Internationalen Strafge richtshofes in das deut sche Recht unt er Beriicksi chtigun g der Rechtsh ilfe' , Human itiires Yolkerrechs

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The legally most difficult and crucial questions relate, however, to the already mentioned attempt to bring German criminal law in line with the requirements of the Rome Statute as far as genocide, crimes against humanity and war crimes are concerned.

II . THE PROJECT OF A GERMAN CODE OF CRIMES AGAINST INTERNATIONAL LAW (VOLKERSTRAFGESETZBUCH)

So far, German domestic law does not contain a comprehensive list of crimes similar to the contents of Articles 6 to 8 of the Rome Statute. Thus the need was felt to introduce such a comprehen sive list into domestic German law, the underlying idea of which was twofold: Firstly, the law is meant to ensure that Germany could exercise genuine jurisdiction with regard to genocide, crim es against humanity and war crimes, thus making sure that no German national will need to be surrendered to the International Criminal Court. Secondly, and more importantly, the purpose of such a codification is to foster the development of international criminal law and supplement the jurisdiction of the International Criminal Court with its shortfalls as enshrined in Articles 12, 13, 16 and 124,12by providing for parallel domestic prosecutions of such crimes. While other countrie s decided to copy almost literally the contents of Articles 6 to 8 of the Rome Statute, and make them applicable in their respective domestic legal order;'? it can be argued that there is a need to also take into account other legal instruments binding upon Germany such as the First Additional Protocol to the four Geneva Conventions of 1977. 14 Besides, some of the definitions contained

1999, p. 27 et seq. at 30-3 1; see also MacLean , 'Gesetzentwurf iiber die Zusamrnenarbeit mit dem Internationalen Strafgericht shof ' , Zeitschrift fiir Rechtspolitik 2002, p. 260 et seq. 12

13

14

For an overview over the juri sdictional structure of the ICC see E. Wilmshurst, 'Jurisdiction of the Court ' , in R. Lee (ed.), The International Criminal Court: the making of the Rome Statute; issues, negotiations, results, p. 127 et seq. See e.g. Sect. 45 of the United Kingdom (Draft) 'International Criminal Court Bill' ; Sects 4 and 6 of the Canadian'Act respecting genocide, crime s against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts' , 48-49 Elizabeth II, 1999-2000 and Sects 9- I I of the New Zealand ' International crimes and offences against admini stration of j ustice Act' . For details see infra C. 3.

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in the Rome Statute , which were the result of - sometimes difficult - political compromise, might not always reflect current customary international law," Apart from the question of how to define the respective crimes, one might also ask whether further changes are needed with regard to the exercise of jurisdiction by German courts , and whether general principles of criminal law have to be addressed in such a domestic codification .

A. Genocide For obvious historical reasons and in order to fulfill its obligations under Article 5 of the Genocide Convention, Germany already in 1955, when ratifying the Genocide Convention, decided to introduce a separate Sect. 220a on the crime of genocide into its Criminal Code, which was, mutatis mutandis, identical to the wording of Article 3 of the Genocide Convention , which in tum is mirrored in Article 6 of the Rome Statute. " Besides, incitement to commit genocide has since that time been dealt with in a separate provision of the German Criminal Code. Indeed , under Sect. 6, no. I of the German Criminal Code, German courts have long been enabled to exercise universal criminal jurisdiction with regard to the crime of genocide and have in the past also de facto exercised such jurisdiction.'? Thu s, it appears logical when drafting a proposal for a separate German Code of Crime s against International Law, not to make any substantive changes with regard to the crime of genocide, but purely to move it from the general criminal code into the more specific Yolkerstrafgesetzbuch, thereby highlighting the fact that an act of genocide is not only directed against the individual s concerned, but against mankind.

15

16

17

See also Article 10 of the Statute stating that Part 2 of the Statute shall not be interpreted as limiting or prejudicing in any way existing or developing rules of customary international law. For the content and meaning of Art . 6 of the Statute see W. Schabas, 'Art. 6' , in Triffterer, supra note 7, p. 107 et seq. See e.g . 'Amtliche Sammlung der Entscheidungen des Bundesgerichtshofes' in Straf sachen (BGHSt), vol. 45, p. 65 et seq.

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B. Crimes against humanity With regard to crimes against humanity, the situation is somewhat more difficult. After the Allied Powers had first themselves punished German offenders for crimes against humanity after the end of the Second World War, they later authorized German courts to do so under Control Council Law No. 10. 18 However, after Germany had (at least partly) regained its sovereignty, Control Council Law No. 10 was no longer applicable in the Federal Republic of Germany.19Accordingly, crimes against humanity could no longer be punished as such by German courts. Instead , acts constituting crimes against humanity were then punished in accordance with the regular provisions of German criminal law. One might argue, however, that the specific character of such crimes against humanity, i.e., that they are committed as part of a widespread or systematic attack against a civilian population, is currently not sufficiently addressed by the regular German criminal law offences, such as murder or manslaughter. One might also doubt whether certain specific crimes against humanity now contained in the Rome Statute, such as the crime of apartheid, are indeed sufficiently covered by German criminal law at all. It is against this background that one might hope that Germany will in the future - similar to other countries such as France, Canada, New Zealand or the United Kingdom - provide in its own domestic law for the punishment of such crimes against humanity. The catalogue of such crimes against humanity to be introduced into the future Code of Crimes against International Law should be largely parallel to the provisions of the Rome Statute, i.e., its Article 7, taking into account , however, the pre-existing criminal norms as contained in the German Criminal Code. Accordingly, it might be necessary from time to time to adapt the language of the Rome Statute to the more common terms previously used in German criminal law.20 In some instances, and starting with the chapeau of the crimes against

18

For a detailed description see H. Ahlbrecht , Geschichte der viilkerrechtlichen Strafger ichtsbarkeit in 20. Jahrhundert (1999), p. 96 et seq., with further references.

19

Bundesgeset zblatt 19561 , p. 437 et seq.

20

For example , while Article 7, para. 2, lit. d) of the Rome Statute dealing with the definition of deportation refers to acts of displacement taking place "without grounds permitted under international law", the German legislature might instead refer to such acts committed in violation of general rules of public international law as referred to in Article 25 of the Basic Law (for details as to that notion see H. Steinberger, 'Allgemeine Regeln des Yolkerrechts', in J. IsenseelP. Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. VII, p. 525 et seq.). Similar considerations apply inter alia with regard to both Article 7

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humanity, it might be advisable, however, not to follow too closely the model of the Rome Statute . J. Chapeau It has to be noted that the chapeau of Article 7 (1)( d) of the Rome Statute, as further defined in Article 7 (2)(a), somewhat deviates from the pre-existing situation under customary international law. Unlike customary international law, Article 7 (2)(a) presupposes not only the multiple commission of any acts referred to in Article 7 (1), but also requires that those acts must at the same time have occurred pursuant to or in furtherance of a given policy." Given this deviation , it might be advisable not to introduce the definition of "attack" contained in Article 7 (2) of the Rome Statute, into German domestic law. Instead, the definition of "attack" could very well simply refer to a widespread or systematic attack upon a civilian population without further specifying it.

2. Persecution Similar considerations might arise with regard to the crime of persecution . Under Article 7 (l)(h), read in conjunction with Article 7 (2)(g) of the Rome Statute, persecution means the discriminatory, severe and intentional deprivation of fundamental rights , provided, however, that any such persecution takes place in connec-

(I)(e) ["fundamental rules of international law"] and Article 7 (l)(h) ["impermissible under international law"]. 21

See in that regard the judgement of the ICTY in Prosecutor v. Du sko Tadic, Case No. IT-94I, Opinion and Judgement, 7 May 1997, at para. 646, where the Tribunal stated that the requirement that the acts be directed against a civilian population can be fulfilled if the acts occur on either a widespread basis or in a systemat ic manner, since either one is sufficient to exclude isolated or random acts. The ICTR likewise stated in Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgement and Sentence, 6 Dec. 1999, at paras 67-68), that Article 3 of the English version of the Statute of the ICTR which - unlike the French version - refers to a widespread or systematic attack, conform s more closely to customary international law. See also Prosecutor v. Akayesu, Case No. ICTR-96-4, Judg ement, 2 Sept. 1998, footnote 144, which reaches a similar conclusion ("Since Customary International Law requires only that the attack be either widespread or systematic , there are sufficient reasons to assume that the French version [of the ICTR Statute which contain s a cumulative requirement] suffers from an error in translation .")

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tion with another act mentioned in Article 7 or any other crime within the jurisdiction of the Court. In sharp contrast thereto, the ICTY had previously stated in the Kupreskic judgement of 14 January 2000,22 that although the Statute of the International Criminal Court may be indicative of the opinio juris of many States, Article 7 (l)(h) of the Statute was not consonant with customary international law insofar that it required that the acts of persecution "must be perpetrated 'in connection' with any of the acts enumerated in the same provision constituting crimes against humanity or with any other crime within the jurisdiction of the International Criminal Court, i.e., war crimes, genocide, or an act of aggression'V' On the other hand, it should be noted that the link required by Article 7 (l)(h) only presupposes that any such act constitutes either genocide under Article 6 of the Statute, a war crime under Article 8 of the Statute or any act referred to in Article 7 (I). Such an act does not, however, necessarily have - as the Trial Chamber seems to indicate in its Kupreskic judgement" - to fulfill the requirements of the chapeau of Article 7 (I). Thus even isolated acts of, for example, murder or torture (even if they do not constitute by themselves crimes against humanity), will, if committed in connection with widespread or systematic acts of persecution, render those acts of persecution itself crimes against humanity." This interpretation of Article 7 (I )(h) of the Statute, which lowers the threshold requirement significantly as compared to Article 6 (c) of the Nuremberg Statute, is not only supported by the drafting history of that provision" but also by the fact that the last

22 23

24

25 26

Prosecutor v. Kupreskic, Case IT-95-16 , Judgement, 14 Jan. 2000, at para. 580 . It is indeed worth noting , that even where the ICC might not be able to exercise its jurisdiction with regard to the crime of aggression, pending the adoption of an amendment as provided for in Article 5 para. 2 in conjunction with Article 121 and 123 of the Statute , it might still decide whether a given action did in fact constitute aggression , be it only to be able to punish acts of persecution committed in connection with such crime of aggression. This is due to the fact that the crime of aggression is within the jurisdiction of the Court, which is only for the time being hindered to exercise it.

Ibid., where the Trial Chamber states that "Article 7 (2) restricts [the definition of persecu tion) to acts perpetrated "in connection" with any of the acts enumerated in the same provision as constituting crimes against humanity (murder, extermination, enslavement, etc.)" [emphasis added) . M. Bootie. Hall, Art. 7, marginal note 72, in Triffterer, supra note 7, p. 117 et seq. D. Robinson, 'Defining "Crimes against Humanity" at the Rome Conference', American Journal ofInternational Law 1999, p. 43 et seq. at 54-55 .

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part of Article 7 (2)(h) deliberately does not refer to crimes referred to in that paragraph but instead to acts referred to therein . Besides, as outlined by the Trial Chamber in Kupreskic, even under the Nuremberg standard, which required that the acts of persecution must have been committed in "execution of or in connection with any crime within the jurisdiction of the Tribunal", the International Military Tribunal was of the opinion that acts would fall within its jurisdiction which had only a rather tenuous connection with other crimes falling within the jurisdiction of the Court.F Thus , notwithstanding the fact that the requirement of a link as set up in Article 7 (l)(h) only establishes a rather low threshold, it remains to be seen whether any German codification of crimes against humanity to be adopted in the future will retain such requirement or not.

C. War crimes After Germany had ratified the four Geneva Conventions of 1949 in 1954, no concrete legislative measures were taken to implement the obligations Germany had incurred to punish grave breaches of the four Conventions. The main argument was that any commission of such grave breaches would at the same time constitute a criminal offence under German law, and could accordingly be punished as such." After the adoption of the two Additional Protocols of 1977, the very same discussion arose again. In particular, the German Federal Ministry of Justice had in 1978 and 1980 prepared a draft law, which would have implemented not only the grave breaches provisions of the four Geneva Conventions of 1949 but also the grave breaches contained in Articles 11 and 85 of the First Additional Protocol." But even after Germany had ratified the two protocols in 1991, no concrete proposals for such a law were submitted to the German Parliament. Indeed, one may seriously doubt whether all grave breaches of the Geneva Conventions and of the Additional Protocol are sufficiently covered by the regular criminal provisions. The same could be said with regard to some of the provisions

27 28

29

Prosecutor v. Kupreskic, supra note 22, para . 576. For a more thorough discuss ion of that question see inter alia G. Werle, 'Volkerstrafrecht und geltendes deutsches Strafrecht' , Juristenzeitung 2000 , p. 755 et seq. For details see P. Wilkitzki , 'Die volkerrechtlichen Verbrechen und das staatliche Strafrecht (Bundesrepublik Deutschland)', Zeitschrift fiir die gesamte Strafrechtswissenschaft 1987, p. 455 et seq. (in particular p. 466 et seq.).

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of the Rome Statute, which at least as far as international armed conflicts are concerned, also relate to acts such as the use of civilians to render otherwise legitimate military targets immune from military operations." It could, therefore, be argued that the purpose of any codification of war crimes in a separate German Code of International Crimes would be twofold : On the one hand, Germany would - one might say: finally - enact legislation in line with the grave breache s provision s of the Geneva Conventions and the First Additional Protocol. But on the other hand, the purpose of the law would also be to cover completely the list of war crimes enshrined in the Statute of the International Criminal Court , which - to some extent - is larger than the list of grave breaches as contained in both the four Geneva Conventions and the First Additional Protocol, given the fact that neither the Geneva Conventions nor the Second Additional Protocol contain grave breaches provisions as far as internal armed conflicts are concerned. Moreover, the Rome Statute is - mainly due to the resistance of the United States - also more limited than Additional Protocol I of 1977 and its list of grave breaches ." But since Germany is, along with more than 150 other countries a contracting party to the Additional Protocol I of 1977, it is under a legal obligation to punish both grave breaches under the Geneva Conventions themselves as well as those arising under the First Additional Protocol. Therefore, when codifying war crimes in a separate German Code of Interna tional Crimes to be applied by German courts , in principle an attempt should be made also to include the grave breaches of the Additional Protocol I, even if the content of those grave breaches is not reflected in the Statute of the International Criminal Court . On the whole, the basic underlying idea of the planned codification should be to compare the Rome Statute on one side and the four Geneva

30

31

See Article 8 (2)(b )(xxiii) of the Rome Statute. The original propo sal of the ICRC , formally submitted by New Zealand and Switzerland (N AC.249/1997fWG .IIDP.2 of 14 Feb. 1997), had still contained a comprehensive list of the grave breaches of both the Geneva Conventions and the First Additional Protocol. For the proposal of the United States see AI AC.249/1997fW g.IIDP.1 of the same day. For a comprehensive comparison of the contents of Additional Protocol I on the one hand , and Article 8 (2)(a) and (b) of the Rome Statute on the other see H. Fischer, 'The Jurisdiction of the International Criminal Court for War Crimes: Some Observations Concerning Differences between the Statute of the Court and War Crimes Provisions in Other Treaties", in V. Epping et al. (eds.), Bracken Bauen und Begehen - Festschrift fiir Knut Ipsen zum 65. Geburtstag (2000) , p. 77 et seq.

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Conventions and Additional Protocol I on the other, and in the case of a conflict, to introduce into German law those provisions which provide for a larger scope of application . Where parallel norms exist in both the Rome Statute and the First Additional Protocol , the general tendency should be to use the more modem language of the First Additional Protocol, or at least to refer to the parallel provisions of the First Additional Protocol in the travaux preparatoires. Besides, an attempt should be made in the planned Yolkerstrofgesetrbuch to harmonize as far as possible the rules applying to international and non-international armed conflicts. Thus, the law could - if such an approach were indeed to be followed - first cover all those war crimes which can be committed in either international or non-international armed conflict. It could then, to the extent necessary, distinguish between those war crimes which can only be committed in an international armed conflict and those which only relate to non-international armed conflicts. Thus the list of war crimes committed in non-international armed conflicts would be significantly more comprehensive than the list contained in Article 8 (2)(c) and (e) of the Rome Statute. Notwithstanding this, some problems would remain. 1. Apartheid as constituting a war crime

One should mention the question whether practices of apartheid , listed in Article 85 (4)(c) of the First Additional Protocol as constituting a grave breach should be mentioned as a war crime as such, given that said provision was only introduced into the First Additional Protocol as part of a political cornpromise.P Such practices of apartheid will normally also be covered by the provisions concerning crimes against humanity. Finally, one might very well argue that such practices are already punishable as grave breache s of the Conventions." under the heading of outrages upon human dignity. Thus, provided that the proposed war crimes provisions of the envisaged German Code of Crimes against International Law 34 make

32

33

34

For details of the content of that provision see M. Bothe/K. J. PartschlW. Solf, New rulesfor victims ofarmed conflicts: commentary on the two 1977 protocols additional to the Geneva conventions of 1949, p. 518. ICRC , Commentary on the Additional Protocol s of 8 June 1977 to the Geneva Conventions of 12 August 1949, marginal note 3515. If indeed an attempt were made to merge the provisions covering intern ational and internal armed conflict, one might wonder whether the use of the technical term of "protected persons" would still make sense. Inste ad, it might be advisable to use a term also covering, apart

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outrages upon the human dignity of protected persons a punishable war crime, acts of apartheid would not need to be specifically addressed. 2. Unjustifiable delays in the repatriation ofprisoners of war

When the list of war crimes to be included in a future German Code of Crimes against International Law was being considered, it became obvious that specific problems arose with regard to unjustifiable delays in the repatriation of prisoners of war. While such acts constitute grave breaches of the First Additional ProtoCOI, 35 the drafters of the Rome Statute had deliberately decided not to include them in Article 8. It might, however, be argued, that any unjustified delay in the repatriation of persons entitled to the status of prisoners of war being kept in custody, would also amount to unlawful confinement. Therefore, it can be envisaged that a specific reference to the prohibition contained in Article 85 (4)(b) might be considered superfluous, if unlawful confinement as such were to be included in the list of war crimes . 3. Transfer ofpopulations

Similar considerations might apply to the transfer of populations as regulated in Article 8 (2)(b)(viii) of the Rome Statute, the wording of which is - for obvious political reasons" - broader than the parallel provision contained in Article 85 (4)(a) of the First Additional Protocol. But since this deviation only served to clarify that indirect inducements of population transfers also constitute grave breaches of the First Additional Protocol and thus war crimes , it might be useful simply to rely on the original language of the Protocol and accordingly depart from the wording , albeit not the content , of the Rome Statute .

from protected persons within the meaning of the Geneva Conventions, civilians possessing the nationality of a Party to the conflict, stateless person s or refugees referred to in Art. 73 of the First Additional Protocol. 35

See Article 85 (4)(b) of the First Additional Protocol.

36

For the meaning and content of that inclusion, which mainly aimed at the Israeli settlement policy see M. Cottier, 'Article 8 (2)(b) (viii)' , in O. Triffterer, supra note 7, marginal note 97.

Implementing the Statuteof the International Criminal Court

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4. Attacks upon humanitarian assistance and peace-keeping missions

With regard to attacks upon humanitarian assistance and peace-keeping missions." it is not quite clear from the Statute whether the qualifying phrase in accordance with the Charter ofthe United Nations also relates to humanitarian assistance missions, nor is this question addressed in the elements of crimes." This raises the question whether humanitarian assistance missions undertaken without the permission of the respective territorial State constitute an interference with the internal affairs of that State and might thus be considered not to take place in accordance with the United Nations Charter. If one were to share that view, military attacks on such missions would then not constitute violations of Article 8 (2)(b)(iii) of the Statute, notwithstanding the fact that they could still be considered as attacks against civilians within the meaning of Article 8 (2)(b)(i) or, where applicable, as constituting attacks against personnel and objects using the Red CrosslRed Crescent emblem within the meaning of Article 8 (2)(b)(xxiv) of the Rome Statute. Given the complexities and pending a final determination of that question by the future International Criminal Court, the German legislature might also be well advised to leave the questions open, and therefore just to reproduce Article 8 (2)(b) (iii) as it stands now.

5. Causing excessive collateral damage With regard to the war crime of causing excessive collateral damage, the Rome Statutev- while on the one hand recognizing the possibility that damage to the natural environment might very well constitute prohibited excessive collateral damage, thus being broader than the First Additional Protocol - is on the other hand more limited than Article 85 (3)(b) of Protocol I. This is due to the fact that according to the Rome Statute , only launching attacks which cause collateral damage clearly excessive in relation to the concrete and direct overall military advantage anticipated constitute war crimes . It might be expected, however, that the latter addition , although not contained in the First Additional Protocol as such,

37 38

39

See Article 8 (2)(b) (iii). But see M. Cottier, 'Article 8(2)(b) (iii)', marginal note 31 in O. Triffterer, supra note 7, who seems to take the position that such humanitarian assistance missions are only protected by that provision if they take place in accordance with the United Nations Charter. See Article 8 (2)(b)(iv) of the Rome Statute .

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will be reproduced in the parallel provision of the future German Code of Crimes against International Law, since its content, mutatis mutandis, also forms part of the German interpretative statement made at the occasion of the ratification of the First Additional Protocol. 40 On the other hand, the requirement that the damage be clearly excessive - introduced into the text of the Rome Statute largely upon the initiative of the United States - seems to be, at least at first glance , significantly narrower than the obligation Germany undertook when ratifying the First Additional Protocol. The exact meaning of the word "clearly" in itself is, however, not quite clear. One might indeed argue that it does not refer to the extent of the collateral damage caused , but instead simply to the predictability of such unproportionate damage for the respective military commander. Such a narrow interpretation is supported by the fact that all previous versions of that very same provision had contained a footnote to that very same effect." If interpreted that way, the text of the Rome Statute would again be in line with the interpretative declaration made by Germany when ratifying the First Additional Protocol," and Germany would thus not depart from its prior obligations incurred when ratifying said Protocol.

6. Use ofprohibited weapons Another issue relates to the use of prohibited weapons. Firstly, biological and chemical weapons are, as such, not explicitly mentioned in the Rome Statute , although at

40

41

42

UNTS , voI.1125 , 1979, pp. 429-430. The relevant part of the German declaration made atthe time of ratificat ion reads : "5. In applying the rule of proportionality in Article 51 and Article 57, 'military advantage' is under stood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack." See also A. Zimmermann, 'The Creation of a Permanent International Criminal Court ', MaxPlanck-Yearbook of United Nations Law (1998), pp. 169 et seq. at 233. See sup ra note 40; the relevant part of said declaration reads : "4. It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol 1, to military commanders and others responsible for planning, deciding upon or executing attacks , the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight."

Implementing the Statute of the International Criminal Court

991

least the latter are covered by the prohibition contained in Article 8 (2)(b) (xviii)." Given that both prohibitions are deeply rooted in customary international law, the use of such weapons should be specifically addressed in the future German Code of Crimes against International Law.44 Secondly, the prohibition to use blinding laser weapons and anti-personnellandmines has not yet reached the status of customary international law. Accordingly, it would be premature, pending future developments including an eventual amendment to the Rome Statute in accordance with Article 8 (2)(b)(xx), to criminalise the use of such weapons generally, notwithstanding the fact that the use of anti-personnel landmines within Germany already constitutes a criminal offence." Thirdly, with regard to non-international armed conflicts, no consensus could be reached during the Rome negotiations on the inclusion of any prohibited weapons, the use of which in internal strife would constitute a war crime." Yet it was the Appeals Chamber of the ICTY which had stated in its landmark decision in the Tadic case that as of today a general consensus exists in the international community with regard to the principle that the use of certain weapons is also prohibited in internal armed conflicts." The future German Code of Crimes against International Law should in my view also criminalise the use of biological and chemical weapons, as well as the use of dum-dum bullets in both international and non-international armed conflicts .

43

44

45

46

47

As to the reasons underlying this omission, i.e., the political link with the issue of nuclear weapons see M. Cottier, 'Preliminary Remarks on subparagraphs (xvii)-(xx) : Prohibited weapons : Drafting history ', in Triffterer, supra note 7,Article 8, marginal note 179 et seq. But see as to the possession and development of chemical weapons already Sect. 17 of the German Law Implementing the Treaty on the Prohibition of Chemical Weapons (Bundesgesetzblatt 1994 I, p. 1954 et seq.), which makes it a criminal offence to develop, produce, import or export chemical weapons . See Article 2, para. 5 of the law implementing the Ottawa treaty, Bundesgesetzblatt 1998 I, p. 1778 et seq. (1780). For further details see A. Zimmermann , 'Article 8: Preliminary Remarks on para. 2 (c)-(f) and para. 3: War crimes committed in an armed conflict not of an international character' , marginal note 237, in Triffterer, supra note 7. For a critical analysis of that aspect of the Rome Statute see A. Cassese, 'The Statute of the International Criminal Court: Some Preliminary Reflections', European Journal of International Law 1999, p. 144 et seq. at pp. 152-153.

Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Decision on the Defence Motion on the Jurisdiction of the Tribunal, 2 Oct. 1995, paras 119 et seq.

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D. Exercising domestic criminal jurisdiction under the proposed Code of Crimes against International Law As mentioned above , German courts may de lege lata already exercise universal jurisdiction with regard to the crime of genocide." The same is true with regard to defendants accused of having committed murder against persons protected under the Geneva Conventions, in particular civilians. This is due to the fact that under Sect. 9, no. 9 of the German Criminal Code, universal jurisdiction may be exercised if provided for in an international treaty binding upon Germany, as is the case with regard to the four Geneva Conventions and the First Additional Protocol. For example, German courts have exercised criminal jurisdiction even where both the perpetrator and the respective victims were nationals of Bosnia-Herzegovina or the Federal Republic of Yugoslavia. Indeed, the courts specifically noted that the grave breaches provisions of the Geneva Conventions enabled Germany to do so. It must be noted, however, that so far German courts dealing with war crimes appear to require that in order for German courts to exercise jurisdiction, the crime in question has to have a certain link with Germany, be it that the offender is residing in Germany, be it that Germany has itself participated in peacekeeping operations in the area or, finally, that Germany has accepted refugees from that given area." Under these circumstances and unless recent developments in the case between the Democratic Republic of Congo on the one side and Belgium on the other'" would indicate otherwise, one might expect that the draft law currently under discussion will, at least as a matter of principle , provide for universal criminal jurisdiction to be exercised by German courts with regard not only to genocide and crimes against humanity, but also with regard to war crimes committed in either international or non-international armed conflict even more since such an approach would also be in line with the position taken by Germany during the Rome conference, where Germany had strongly supported the view that the International Criminal Court itself should be able to exercise universal jurisdiction."

48

See supra under II. A.

49

Entscheidungen des Bundesgerichtshofes in Strafsa chen (BGHSt), vol. 45, p. 65 et seq.

50

Arrest Warrant of II April 2000 Case (Democratic Republic ofthe Congo v. Belgium).

51

For details see H.P. Kaul, 'Der lntemationale Strafgerichtshoft Das Ringen um seine Zustiindigkeit und Reichweite'; in H. Fischer, Horst Volkerrechtliche Verbrechen vor dem Jugoslawien- Tribunal, nationalen Gerichten und dem lnternationalen Strafgerichtshof( 1999), p. 177 et seq .

Implementing the Statute of the International Criminal Court

993

E. Statute of limitations Article 29 of the Rome Statute provides that crimes within the jurisdiction of the International Criminal Court shall not be subject to any statute of limitations.Against this background, one should expect that the German implementing legislation providing for parallel punishment under German law would similarly provide that German domestic criminal proceedings for genocide , crimes against humanity and war crimes shall not be subject to a statute of limitations. Certain exceptions could eventually be made, however, for war crimes committed against property, such as plunder.

F. General principles of criminal law

German criminal law contains elaborate provisions of general principles of criminal law regulating individual criminal responsibility, such as issues of mens rea, relevance of mistakes of fact and law and possible defences . Those provisions are - at least grosso modo - in line with the provision s of the Rome Statute. Accordingly, it seems that no changes to those provisions are - at least as a matter of principle - necessary in order to implement the Rome Statute . Only some rather specific questions concerning, inter alia the problem of command responsibility and superior orders should be addressed in the future Code of Crimes against International Law. If indeed such issues were to be specifically addressed , it is to be hoped that those provisions would then be largely in line with Article 28 and Article 33 of the Rome Statute .

G. Penalties The four Geneva Conventions and the First Additional Protocol - while requiring the investigation and prosecution of grave breaches - do not contain specific criteria as to the penalties to be applied . The Rome Statute - while containing in its Article 78 only rather broad criteria to determine a sentence , i.e., the gravity of the crime and the individual circumstances of the convicted person - provides for imprisonment for up to 30 years and life imprisonment. In particular, the Statute does not specify which penalties should apply to the different crimes listed in the Statute . In contrast to this, the German Criminal Code contains very detailed provisions as to which penalties apply to the different offences. Furthermore, it also specifies in much more detail the relevant factors to be taken into account when

994

Chapter 44

determining a sentence." Given that situation, it can be expected that the future German Code of Crimes against International Law will similarly specify in detail which penalties will apply to acts of genocide, crimes against humanity and war crimes ranging up to terms of 15 years' imprisonment or life imprisonment.

III. CONCLUDING REMARKS It is to be hoped that the project of a future German Code of Crimes against International Law will become a reality.? and that it will not become bogged down in political disputes not related to the legal issues, as was, for some time, the issue of an amendment to the German constitution with respect to the extradition of German nationals , which was linked by the opposition to a second, unrelated constitutional issue, i.e., the ability of women to serve in German armed forces. At the same time the law will hopefully demonstrate the willingness of Germany to uphold the integrity of the First Additional Protocol.

52

See, e.g., Sect. 46 of the German Criminal Code .

53

See supra note 8.

INDEX

Act of state doctrine defence of, 303 defence, as, 164 derivation of notion, 304 exceptions, 165 forum court's jurisdiction, performed outside , 303 human rights exception, 165 international law, rule of, 304 state responsibility for, 304 United States, statutory defence on, 303 African Commission on Human and People's Rights Court, 387 establishment of, 387 Aggression crime of, 78, 81 indirect, self-defence agains t, 331335 NATO air-strikes against Yugoslavia as, 237 rape as form of, 688 UN collective response to, 328 American Convention on Human Rights institutions, jurisdiction, 386 Amnesty conditional, 131

crimes against humanity, 133 de facto, 132-133 definition. 131 genocide, exclusion of, 132 impunity, element of, 645 international criminal justice system , in, 92-93, 120 international law, connection with, 646 prevailing universal jurisdiction, as part of, 134 promulgation of, 132 recognition of, 723 reconciliation, as part of, 127-128 rise in number of, 132 role for grant of, 725 Rwanda, in, 133 Statutes of ad hoc tribunals , not mentioned in, 135 torture, crimes of, 133 truth and reconciliation commissions, operation of, 646647 Arbitration bench , questions from, 464 counsel, 451 international, types of, 443

996 Argentine Genocide Convention, interpretation of, 291 Armed conflict civil wars, non-intervention in, 242 compliance with laws, improving, factors, 1-2 problem, defining, 1-2 cultural property, protection of, 537 customary law, historical evolution of, 79 ethnic, 127, 935 ethnic hatred, factor of, 2 Fourth Hague Convention, 79 humanitarian assistance, 241-244 impunity, precluding, 127, 129, 136 International Covenant on Civil and Political Rights , obligations of parties under. See International Covenant on Civil and Political Rights international, nature of, 533-534 non-international, blurring of distinct ion, 535 treatment as, 534 lives of citizens abroad, intervention to protect, 238-240 national , 127 non-international, extension of rules to, 537-538 international, blurring of distinction, 535 international humanitarian law, broadening of, 536 jurisdiction over, 534 law or customs of war, effect of, 534

Index

Tadic decision, 534-538 weapons, use of, 535 number of, 88-89 protecting powers, absence of, 6 designation of, 7-8 international conflict , in, 8 non-international conflict, in, 8 system of, 7-8 public emergency, in time of, 729730, 735-737 religious , 127 reprisals . See Reprisals twentieth century, in, 935-936 war crimes . See War crimes weapons, regulations regarding, 537 within states, 935 Armed forces adherence to international rules , promotion of adherence to, 721 international humanitarian law, educating about, 5 Attempt genocide compared, 19-20 mens rea, 19 Austria extraterritorial offences, prosecution of, 286-287 Belgium Genocide Convention , implementation of, 293 Bioethics Committees and Commissions, 829 concept of, 827 ethical and moral, distinction between, 828

Index

genomics. See Genomics international bodies, 829 laws and regulations, promulgation of,829 meaning, 827-828 new discipline of, 839 China crimes binding on, 290 Civilizations legal systems , 71 life cycles of, 71 twentieth century, in, 74 Concert of Europe members of, 234 Congo UN measures in, 312, 326, 343 Constitution amendment, procedure for, 310 instrument, organic growth of, 309 living tree, resembling, 309, 313 United Nations Charter as, 310-312 Council of Europe admission of states to, 140 Convention on Biomedicine. See Genomics European Convention on Human Rights. See European Convention on Human Rights membership, 140 Courts international. See International courts and tribunals Crime acts or omissions categorized as, 693 punishment, 694

997 succession regime, punishment by, 696

Crimes against humanity amnesty, 133 civilian population, targeting , 525 core crimes, as, 511 cruelty and barbarism, dimension of, 517 definition, 871 development of, 526 domestic offences , more serious than, against humanity 517 elements of, 13-14 examples of, 521 extant international law, as, 85-86 functional immunity, general rule of, 300-301 fundamental rights, protection of, 527-528 general context characteri sing, 27 Germany, Code in. See Germany human ity, nature of, 516-518 individuals, protection of, 527 international criminal accountability for, 78-79 International Crimin al Tribunal for the former Yugoslavia, cases before, 515-516 international jus cogens crime, as, 121 mens rea, 524-526 actual or constructive knowledge, 30 attack, knowledge of, 27, 31 case law, 30 commission, context of, 26-27 contextual elements, 29

998

Index

knowing and intentional action, 29-30 knowledge, 26 object of, 27-28 policy or plan, knowledge of, 3031 modern scope of, 526-528 murder, 876 original adoption of notion, 518 policy element, emphasi sing, 28 policy, in pursuit of, 522 prosecution, requiring, 134 rules of war, breaking , 523 scale or systematic nature of, 518524 sentencing . See Sentencing seriousness of, 514 subjective requirements, 14 systematic, use of term, 28 Turkish-Armenian population, against, 80 war crimes , and, 520, 523 Dayton Accords bringing about, 92-93 Denmark genocide, prosecution of, 291 Diplomatic protection aliens, treatment of, 382 application of, 375 critical appraisal , 380-382 human rights protection, relationship with, 375-376 human rights, use of term in relation to, 382 International Law Commission, current approach of, 377-380 meaning, 377

nationa ls' human rights, protection of,378 State responsibility, approach to, 378-380 traditional form, 373 Discrimination general principle prohibiting , 833 genetic heritage , on ground of, 832833 Duress defence of, II Economic Community of West African States sanctions by, 350 Emergencies humanitarian assistance, provision of,242 Espionage functional immunity, general rule of, 300-301 European Commission on Human

Rights applications to, 142 competence of, 139 equivalence , principle of, 230 European Communities, no competence to examine decisions of,229 replacement of, 183 European Conventio n for Prevention of Torture and Inhuman or Degrading Punishment or Treatment Committee, Cassese, contribution of, 435 creation of, 426-427

Index

effective accountability builder, core qualitie s of, 434-435 first elections , 428 first visits by, 430-432 implementation of recommendations, 440-441 independence of, 428 innovation , history of, 441 international organizations, cooperation with, 440 mandate, 427 monitoring work of, 435-441 national authoritie s, co-operation by, 431 observations , publicati on of, 439 press and public relations, 439440 reporting , 432-434 resources, 434 Rules of Procedure, development of, 429-430 Russian Federation, visits to, 437-438 Turkey, public statements on, 436 definition, lack of, 427 failings, remedy for, 438 implementation, 428-434 realism and legalism, balance between , 428 Recommendation for, 425 redrafting, 424-428 Rules of Procedure, developm ent of, 429-430 Steering Committee, mandate of, 425 travaux preparatoires, 426 vagueness of, 427

999

European Convention on Human Rights Charter of Fundamental Rights, influence on, 221 civil servants, guarantees extending to, 187 control system, 139-140 Council of Europe , as product of, 140 environment, protection of individual from dangers stemming from, 144-145 European Communities not contracting party to, 225 European Court of Justice, reference s by, 221 fair trial, right to. See Fair trial, right to friendly settlement, recognition of, 747,755-758 institutions, original, 386 investigatory measure s, requirement of States to take, 145-146 life, right to, 146 non-di scrimin ation, principl e of, 833 positive obligations of States, 144, 147 ratification , 139-141 reform of system, 141, 146 traditional civil liberties, protection from State interference, 143-144 violations, acts and procedures being, 224225 attitude of courts to, 223 community acts not leaving discretion to members states 228-229 directive or decision, by, 229

1000

Index internal law of member state, by, 228 legal order of European Community, within, 224 member states, responsibility of, 225-226

European Court of Human Rights applications to, 142 case law of, 183 derivation of, 224 substance of, 143 Chamber system , 142-143 community system, ambiguities and uncertainties in relationship with, 230-231 composition and procedure, changes in, 142 compulsory jurisdiction, 139 equivalence, principle of, 230 European Communities not summoned before, 225 European Court of Justice , case-law taken account of by, 222-224 former Court and Commission, replacement of, 183 judgments of, 142 jurisdiction, cases outside, 225 optional jurisdiction, 139 rules, 142-143 specialist nature of, 223 violations of European Convention, approach to, 223 European Court of Justice case-law of Strasbourg Court , taking into account, 222-224 Charter of Fundamental Rights, place of in case-law, 221

European Convention, references to, 221 general priorities, 223 violations of European Convention , approach to, 223 European Parliament election to, Gibraltar, exclusions of inhabitants from vote, 227 provisions on, 226-227 European Space Agency jurisdictional immunity, 173-174 European Union Charter of Fundamental Rights, binding force, absence of, 221 Court of Justice , place in caselaw of, 221 influences on, 221 Extradition bilateral and multilateral arrangements, 695 international crimes, for, 134-135 Extrajudicial Commissions of Inquiry provision for establishment of, 725 structure and goals of, 725 Extraterritorial offences far-reaching jurisdictional rules, legal systems with, 292-294 Finland, prosecution in, 292 Netherlands, prosecution in, 293 Portugal, prosecution by, 286 prosecution of, 283 restrictive prosecutorial approaches, 284-287 Switzerland, prosecution by, 286 United States, prosecution by, 284286

1001

Index

Fair trial, right to case-law and practice, appraisal of, 191-194 civil, meaning, 186 domestic level, presentation on, 194 economic and other rights , distinction between, 192-193 economic nature, 187, 190-191, 206-207 government employment, in relation to, 187-191 social security and industrial accident claims, 186 diplomats, position of, 201-203 effective remedy, right to, 184 employment dispute s, 187-191 entry of aliens, not extending to, 186 European Convention, provision of, 183 exclusions, 184-185 ,203-204 Frydlender case, 201-203 Pellegrin ruling, angles from which examined, 208 arguments, 196 Commission's report, 195 economic nature of subject matter, 197 facts of, 194-195 follow-up, 203-206 judgment, 196-200 summary of, 201 procedural guarantees, scope of, 184-185 public officials, claims by, 187-194 case-law, development of, 206 conclusions, 206-209

diplomats, position of, 201-203 economic nature, 187, 190-191, 206-207 employer State , against, 206 extension of jurisdiction to, 208 Frydlender case, 201-203 functional criterion, 207 Pellegrin ruling , 194-20 I pensions and damages, acts of administration concerning, 190, 200 Polish National Fire Service , member of, 204-205 State Church, minister of, 205 workers to which applying, 205 scope of, 184 Finland extraterritorial offences, prosecution of, 292 Forum non conveniens doctrine of, 167-169 France genocide, prosecution of, 291 Friendly settlements agreements, provisions of, 745 binding obligation, creating, 749 change in legislation under, 746-747 civil and criminal disputes, in, 747 community oversight of, 761 compliance, likelihood of, 746 cynical use of, 745 delaying tactic, as, 750 disadvantages of, 749-750 European Convention on Human Rights, provision in, 747 European system, 755-758, 764 evaluation, absence of, 743

1002 exploitation of, 750 external control, absence of, 750 growth in, 742 human rights instruments, provision in, 741 idea of, 742 immoral compromise, avoiding, 745 informal, 767-768 Inter-American system, in, Commission not rejecting , 758 Commission, role of, 762 community oversight of, 761 delegate conducting, 766 discretion as to offering, 759 first, 742 implementation, 765 juridical effect, 766 legal cultural style, 758 legislative objective, 762 negotiated settlements, and, 761 other types of settlement, not precluding, 767 participation in, 764 petitioners, refusal by, 758-759 problems with, 765-766 procedures , 759 public policy or morality, contrary to, 760 publication of, 763-764 remedies obtained in, 749 reports , 763-764 request of parties, 759 requirement to offer, 760 statutory regime, 743, 748, 758766 structure and content of, 760 subjective criteria, meeting, 762 successful conclusion of, 759

Index

time of, 760 International Covenant on Civil and Political Rights , procedure in, 754755 law, setting aside, 748 litigation as alternative to, 744-745 monetary reparations , 745 negotiation, 746 number of, 742 offers under, 746 political and moral problem of, 748 public act of reparation, obtaining , 749 public international law, in, 761 remedie s obtained in, 749 soft law obligations, 747 strategic considerations, 768-769 supervisory bodies, 757 worthless, terms being, 769 Genocide actus reus, 20

agreement to commit, 480 aiding and abetting, 23 all-inclusive, notion of, 473 amnesty not granted for, 132 attempt compared, 19-20 Austria, prosecution by, 286-287 birth, prevention of, 26 coining of term, 469 complicity in, 22-23, 479 conspiracy, 22, 24 Convention , adherence to, 513 Argentina , in, 291 Belgium, implementation in, 293 China, construction in, 290

Index

countries implementing, 283 Finland, implementation in, 292 humanitarian and civilizing purpose of, 631 inconsistencies in implementation, 294-296 interpretation of, 287 Italy, in force in, 289 jus cogens norms, 640 origins of, 639 Russia, in, 290 United Kingdom, implementation in, 288-289 Venezuela, in, 291 core crime, as, 511 crime against humanity, as, 514 crime of crimes, as, 513 Danish legal system, provisions of, 291 definition, 468-469, 478 elements of, 13, 19 express jurisdictional rules, legal systems without, 287-292 extension of criminal liability for, 20 formulation of, 513 France, in, 291 functional immunity, general rule of, 300-301 German national law, prosecution in, 281-282 Germany, Code in. See Germany goal-related crime, as, 18 incitement, 22, 24 International Criminal Tribunal for Rwanda, prosecution in 469-470 international jus cogens crime, as, 121,513

1003 mens rea, actus reus, relationship with, 18 Akayesujudgment,474-475 approaches to, 470-478 conditional intent, 19-20,22 Convention, in, 471 deliberately bringing about, 25 direct intent, 21 general intent, 16-18 group, intent to destroy, 467-480 individualized, 471-475 Jelisicjudgment,471-474 KayishemalRuzindana judgment, 476-477 overall plan, genocidal intent as descriptive of, 476-478 persistent patterns of conduct, 476-477 predicate of criminal intent, issue of, 467-468 Rutagandajudgment,477-478 should have known standard, 17 special intent, 18-19,22-24,474 specific intent, 22 standard , 479 modes of commission, 24-26 national jurisdictional rules, context of, 283 Netherlands, prosecution in, 293 prosecution, requiring, 132 restrictive prosecutorial approaches , 284-287 sentencing . See Sentencing sexual violence . See Sexual violence Spain, prosecution in, 294 Sweden, prosecution in, 294 Switzerland, prosecution by, 286 teleology, 22

1004

Index

United States, prosecution by, 284286 universal prohibition of, 639 Genom ics common heritage, concept of, 841 Council of Europe Convention on Biomedicine, Additional Protocol 1998, 837838 bioethics, not using term, 831 biomedical research, provisions on, 836 cloning, prevention of, 837-838 consent provisions, 832 discrimination on ground of genetic heritage , prohibition of, 832-833 draft Protocol 2001, 837 entry into force, 831 human being, primacy of, 832 human dignity, bottom line being, 832 intervention on human genome, prohibited, 835 legal framework provided by, 831 legally binding, being , 831 predictive genetic tests, conditions for, 834 privacy, protection of, 835 protection, principles of, 832 Protocol , 831 Steering Committee, work of, 831 strength of provisions, 831-832 field of, 830 genetic defects, identification of, 833 genetic testing, 834

international instruments, 830 meaning , 830 predictive genetic tests, 834 screening , 836 specific instruments, 845-846 tangible aspect of, 830 Universal Declarat ion on the Protection of the Human Genome, Chapters, 842 Council of Europe Steering Committee on Bioethics, work of, 842 feature of, 840 human dignity, idea of, 842-843 human genome, symbolic sense of, 841 implementation, 842, 845 International Bioethics Committee, work of, 839-840 research and education principles , 842, 844 research provisions, 842-844 rights of persons, 842-843 scientific activity, conditions for exercise of, 842, 844 solidarity and internat ional cooperation, 842, 844 Germany Code of Crimes against International Law, crimes against humanity, background, 982 chapeau, 983 persecution, 983-985 punishment of, 982 criminal law, general principles of, 993 domestic criminal jurisdiction, exercising , 992

Index

draft legislation, 979 genocide, 981 limitation of actions , 993 penalties, 993 project, 980-994 reality, becoming, 994 war crimes , apartheid, 987 background, 985-987 excessive collateral damage, causing , 989-990 Geneva Conventions, 985 humanitarian assistance and peace-keeping missions, attacks on, 989 populations , transfer of, 988 prisoners of war, unjustifiable delays in repatriation of, 988 prohibited weapons, use of, 990-991 genocide, prosecution of, 281-282 humanitarian law, violation of norms of, 150 International Criminal Court Statute, adoption of, 977 German, extradition of, 978 implementation of, 979 role in negotiating, 977 international criminal jurisdiction, attempts to establish, 923-924 International Criminal Tribunal for the Former Yugoslavia, accused persons, surrender of, 926-928 competence, deferral to, 926-928 cooperation with, 928-930 future prospects , 932 legal assistance, 929-930

1005 personnel at, 932 requests for assistance, 928-930 sentences, execution of, 930-931 Statute, implementation of, 924926 war crimes committed abroad, prosecution of, 927 Yugoslavia, ties with, 925

Globalization aspects of, 74 effects of, 74 individual rights and responsibilities, place of, 76 international criminal justice system in era of, 71-76 knowledge of international crimes , dissemination of, 89 non-government organizations, network of, 89 Gulf War collective measures to protect states, 338 Haiti collective measures to protect states in, 341 Human rights accountability for, civil and criminal proceedings, functions of, 178-179 consequences of, 178-181 deterrence, 180 foreign States, of, 175-178 indefinite term, as, 178 judicial abstention, doctrines of, 164-169 municipal courts, before, 149151

1006

Index

redress, 180-181 complaint system, 138 Conventions , 137 courffi,accessto, 173-174 customary law, compliance, responsibility for, 393-394 obligations and responsibilities, 385 deterrence, 180 effective remedy, right to, 184 European Convention. See European Convention on Human Rights expediency, law yielding to, 748 fair trial, right to. See Fair trial, right to forum non conveniens , doctrine of, 167-169 friendly settlements. See Friendly settlements implementing mechanisms, 137 instruments, procedures in, 750 international criminal courts, contribution of, 138 international law, accountability, 423 legalist and realist views, 423 rules, development of, 381 international protection, goal of, 137 judicial abstention, doctrines of, 164-169 jurisdictional immunity of States, 150-151 jus cogens norms, 170-172 obligations and responsibilities, between states, 384 customary law, under, 385 narrowly conceived, 383

principal conventions, inter-state measures under, 387-393 state rights, 394-397 states parties, of, 384 treaties and customs, resulting from, 383-384 treaty provisions, 384-385 violations by other states, states acting against, 386 peremptory norms, 170-172 precautionary control system, 138 principal conventions, compliance by other state parties, states concerned with, 393 lCJ clause, 389 reciprocal nature of obligations, 389-392 responsibility, parties acting on, 396 treaty bodies, 388, 391 protection as erga omnes obligation, 970-974 protection , balancing with sovereignty, 323-327 relevance of, 169-175 reporting systems, 138 State, protection by, aliens, rights of, 373-374 critical appraisal, 380-382 diplomatic protection, relationship with, 375-376 individuals , role of, 377 International Law Commission, current approach of, 377-380 legal institutions, convergence of, 373 nationality, importance of, 374 obligations erga omnes, 378 obligations, nature of, 374

Index

standard, 375 State sovereignty, effect of doctrine on, 169-170 texts, 137 treaties, undertakings in, 384-385 treaty norms , 173 trial without delay, case law, 541-543 complexity of case, consideration of, 543 observations, 544 reasonable time, assessment of, 542 relevant provisions, 540-541 undue, interpretation of, 541 universal concern, compliance as, 397 Universal Declaration, 137 Vienna Declaration, 974 violations, accountability of foreign States, current law on, 175-178 act of state doctrine as exception 165 deterrence, 180 extra-judicial settlements, 179180 governments renouncing, 744 official public acts, classification as, 165 organs of foreign States, by, 162 political question doctrine, 166 remedie s, 156 sovereign, not classified as, 163, 176 State , damages against, 158-159 State entity or organ, violator as, 163

1007

state immunity, 156-161 torture, 159 US legislation, 156-157 victims , remedies required by, 744-745 wrongdoing State, infringement by, 378 Humanitarian intervention abuses of, 246-247 assistance, 241-244 coercion, use of term, 962-965 coercive, 941-942 coercive measures, notion of, 964 countermeasures as exception to, 968-970 collective, 250 collective or collectively legitimized action, 950 concept of, 518-519 countermeasures, missing, 968-970 definition, 941-942 doctrine , opposition to, 946 human rights , protection as erga omnes obligation, 970-974 internal and public debate on, 940 Internat ional Court of Justice , conclusions by, 247 Kosovo as catalyst for change , 947948 lawfulne ss, conditions for, 248-250 lives of citizen s abroad, to protect, 238-240 massive and systematic violations of human rights, requirement of, 950 meaning, 238 minorities, protection of, 249 non-intervention, principle of, 944 act, nature of, 960

1008

Index

coercion, use of term, 962-965 countermeasures, connection with, 955 definition , lack of, 954 derivation of, 956 domestic jurisdiction, matters within , 965-967 erga omnes obligations, concept of, 970-974 formulation, history of, 957-959 legal elements of definition, 959970 legal situation, clarification of, 974 non-use of force, and, 954 purpose, nature of, 961 quality of, 955 relations between UN members, 955 non-use of force, exceptions, 943 non-intervention, and, 954 United Nations Charter, principles and mechanisms of, 942-943 norm, development of, 944-946 move towards, 948-951 organization of States, by, 249-250 permissible, 967-968 polarization of views, 940-941 political requirement for, 254 preventive measures, primacy of, 949 previous practice, 244-248 Security Council, role of, 949 situations of, 519

state, inability or unwillingness to uphold law by, 949 States not to profit from, 250 territorial integrity, violation of, 247 threat to peace, situation being , 249 UN definition, history of, 957-959 United Nations, role of, 941 use of force, limitations on, 950-951 Western World, outside, 974 Inter-American Commission of Human Rights friendly settlements. See Friendly settlements petitions to, 744 International bar advocacy, art of, 465 good, ideas of, 457 microphone, sue of, 457-458 quality of, 443 speeche s, structure of, 459-460 standard of, 466 tradition of, 457 alleged facts, proving or disproving of, 465 background work, 445 behaviour of, 459 choice of, 444 language of, 446-448, 465 legal qualifications, 447 need for, 464 number of members, 444 oral presentation of case, 457-458 organization and structure, changes required for, 445-446 poorer States, representing, 444

Index

present, 444-445 qualifications, 446-452 skill and integrity, standards of, 464 specialized knowledge, need for, 447 witnesses , examination of, 449-450 written pleadings, nature and purpose of, 452-456 International community civilized states, 234 evils afflicting, 235 existence of, 233 members of, 233 present, 234-235 International Court of Justice adjudicating organ, determination of law as, 63 advisory opinions, binding effects, 59-60 legality control, possibilities of, 61 non-binding, being , 61 Security Council decision, review of, 59-62 alleged facts, proving or disproving of,465 bench , questions from, 461-463 bundles of documents, 454-455 case list, 443 civil and common law systems, 448449 competence of, aspects of, 406-411 case s not receivable before, 418420 consent of parties to, 411-417 juridical basis, 403-406 contentious jurisdiction, rules governing , 53

1009

decisions of other UN organs, giving effect to, 57, 64 difference of attitude in, 463 experts, appointment of, 449 full court, 461 international law, as organ of, 52 judicial settlement by, 53 jurisprudence, preliminary exceptions, 399-421 language of, 446-448, 465 legal issues relating top international peace and security, adjudication on,48 legality of acts of UN political organs, issue of, 41-44, 64 maintenance of peace and international security, as part of mechanism for, 57-58 oral hearing , time for, 460-461 oral presentation in, 457-458 Permanent Court, and, 49 pure law, questions of, 450 questions of fact and law in, 448-451 Security Council decision , review of, advisory proceedings, in course of, 59-62 appellate, 43, 62 contentious proceedings, in course of, basis and object of, 54-59 dispute-handling, 47-49 enforcement decisions, as to, 55 incidental, 54-59 legal ground for, 58-59 provisions not barring, 56-57 questionable decisions, cases of,59 restrictive positions, 44-47

1010

Index

right to obtain pronouncement, 54 Statute and UN Charter, relationship of, 49-53 direct , 43 immediate and ultimate basis, on, 63 incidental, 44-46 jurisdiction, 46 legality issues, approach to, 60 means of, 41-42 member States requesting, 62-63 settlement of disputes, competence in, 47-49 speeches, provision to simultaneous translators , 458 Statute , functions and powers, repository of, 52-53 functions of court in, 50 general principle of law, interpretation as, 852 integral part of Charter, as, 52 partial community constituted by, 51 parties to, 52 UN Charter, relationship with, 49-53 structure and administr ation of, 53 translation costs, 446 UN system, as substantial part of, 51-52 United Nations Charter, advisory opinion on, 313 United Nations, within framework of, 50 unlimited discretionary powers, lack of, 58 visual aids in, 456-457

written pleadings, nature and purpose of, 452-456 International courts and tribunals adversarial process, 443 advocacy before, 443 bench , questions from, 461-463 counsel. See International bar extraterritorial criminal jurisdiction, exercise of, 642 inherent powers of, adjudication of main claim, instrumental in, 368 advantages of, 371-372 autonomous notion, quest for, 364-371 common law countries , doctrine in, 365 contempt, acting on, 370-371 criminal tribunals, of, 369-371 derivation of, 354 doctrine , legal basis of, 364-368 exercise of implied judicial function s, ju stification of, 356, 360 express removal of, 370 expressly envisaged , 356-358 general principles, under, 359 scope and limitation of, 368371 implied powers, and, 354, 362364 interim measures, issue of, 359360 international case law, notion in, 356-361 international legal order, application in, 367 judicial character of courts, safeguarding, 368

Index judicial nature of organs as logical corollary of, 364-365 judicial powers, nature of, 360361 lacunae, filling , 367 legal bases for, 355, 358 legal source of, 354-355 meaning, 353-354 outside impact, with, 369 potential for future application, 372 proceedings, regulating, 368 review of judgments, for, 359 scope of, 354-355 specific source, 369 unique features of court or tribunals, taking into account, 370 jurisdiction, basis of exercise, 368 language of, 446-448 model s of, 641-642 oral hearing, time for, 460-461 oral presentation in, 457-458 powers of, imp lied , 354, 362-364 inherent. See inherent powers of, above not expressly provided for, 353 progress of, 641-642 shortcomings of, 641-642 visual aids in, 456-457 witnesses, examination of, 449-450 written pleadings, nature and purpose of, 452-456 International Covenant on Civil and Political Right s arbitrariness, reference to, 733-734

1011

armed conflict, parties' obligations under, arbitrariness, notion of, 733-735 public emergency, in time of, 729 -730, 735-737 rights not subject to derogation, 732-734 scope of, 729 complaints under, 389 compliance by other state parties, states concerned with, 392 compliance, reporting, 395 derogable and non-derogable rights, 730-732 freedom of expression, restrictions on, 732 friendly solution procedure, 754-755 Human Rights Committee, competence of, 391 monitoring procedures, 738-740 reports to, 738 states of emergency, monitoring in, 739-740 humanitarian law, linkage with, 734 ICI clause, lacking, 390 individual complaint, right of, 740 inter-state measures under, 387-388 peacetime principles and rules in, 734 proceedings against another state party, absence of, 389 reciprocal nature of obligations, 389392,395 restrictions on rights under, 732 rights not subject to derogation, 732734 treaty, character as, 389

1012

Index

International crimes core, 511 overlap, 511-512 cumulative charging, 512 arguments against , 529-531 Germany, Code in. See Germany hierarchy of, 531 advantages of, 532 authorities recognising, 529 introduction of, 972 victims of, 771-789 International Criminal Court complementarity, principle of, 647 core crimes, 12 direct enforcement by, 69 enforceability of law, challenge of, 91 establishment of, 108 debate on, 279 national jurisdiction, impact of, 279-284 institution of, 69, 90 investigation or prosecution, requirement to defer, 136 jurisdiction, complementarity, 279-281 initiation of prosecution, 281 overview of offence , 283 Rome Statute, affiliation of states with,280 jurisdiction, scope of, 697-698 misgivings concerning, 3 political independence, 94 prosecution in, 697 punishment, principle of, 696 Rome Convention, 4 sentencing parameters, 584

Statute , adoption of, 977 Elements, contextual, 13 crimes against humanity, of, 13-14,26-32 genocide, of, 13, 19 mens rea requirement, 12-16.

See also Mens rea purpose of, 12 structure of, 12 war crimes, of, 15-16, 32-40 German , extradition of, 978 interpretation, 848 negotiating process , role of Germany in, 977 International criminal justice system accountability, defining , process of, 123-124 goal of, 117-118 end in itself, as, 123 range of measures , 119-120 accountability and ju stice, norms of, 91 ad hoc basis, development on, 76 amnesties, 92-93, 120 appropriate mechanisms, selection of, 123 bilateral treaties, 105-106 civil society, upheld by, 92 Commission of Experts , 88 complementarity, theory of, 97 components of, 95 crimes against humanity , international criminal accountability for, 78-79 demand for, 74-75 driving force, 88

Index

due process norms, incorp orati on of, 107 elements of, 104 enforcement, accountability, 124 aut dedere aut judicare, maxim of, 69-70, 76 challenge of, 91-92 direct, 77, 85 essence of, 76-77 indire ct, 69, 77 norms , of, 99 states, by, 77 evolution of, 68 evolutionary proce ss of, 98 expectations, failur e to achieve, 124 fund amental role of, 129 general principles of, 111-112 globalization, in era of, 71-7 6 historical thread runnin g through, 98 history of, 78-88 Holy Roman Empire, of, 78 impunity and accountability in, 119125 institutions, 69 international jus cogens crimes, accountability for, 119-125 list of, 121 punishment for, 108- 116 interstate cooperation , 96 knowledge of international crimes, dissemination of, 89 legal development, proc esses of, 107 multil ateral conventions , 105 mutual legal assistance, 70 national criminal justice systems, harm onization of, 103-108

1013 historical thread runn ing through, 97-98 influence of, 98-100 puni shment , policie s and goals of, 101-102 relationship with, 95-108 sanction s, borrowing, 99-100 social contract, implied, 97 networking system, as, 103-104 norm formati on, 98-100 norms, embodiment of, 85 obligations, domestication of, 77 pardon, justificati on, 121 right , reservation of, 109, 120 philo soph ical and policy premises, effectiveness of, 102-103 philo sophy and policy, identification of, 97-103 phil osophy of, 125 primary goals, 76 proc esses, emergence and evolution of, 76-94 puni shment, collective right to exact, III harm onization of penalties, 106 individual redempt ion, need for, 113 inter-state co-operation, 105 ju s cogens crimes, for, 108-116 just desert and retribution, 111115 legitimacy, der ivation of, 112 mixed theory of, 115 policies and goals of, 101-102 pro secutorial discreti on, reservation of, 109 purpo se of, 114-115

1014

Index

questions of, 100 theories of, 109 vengeance, 109-111 realpolitik, manipulation to achieve goals of, 92, 107 reconciliation, promotion of, 128 retaliation, right of, 110-111 sanctions , 99-100 serious crime s, jurisdiction over, 130 social contract theory, 108, 117, 119 Talion law, 109 tribunals, political manipu lation of, 107 universal system, beginning of, 8894 universalizing, 70 value-oriented goals, 125 victim compensation, 116-118 war crimes, international criminal accountability for, 78 International criminal law acts of state, non-answerability of officials for, 302-307 enforcement measures, horizontal model, 298-299 states, by, 300 vertical model , 298-299 functional immunity, general rule of, 300-301 official and private capacity, acts in, 306 substantive and procedural aspects , uncertainty as to basic elements of, 297 International criminal law system core crimes. See International crimes sentencing. See Sentencing treaty-making, acceleration in, 697

International Criminal Tribunal for Rwanda accused, rights of, 878-879 Akayesu judgment, 474-475 Appeal s Chamber, 547-548 authorities, conduct of, 557-561 cases before, 128, 135 Chambers, 558-559 convictions by, 545-546, 687 courtroom, single, 561 crimes prosecuted in, 3-4 delay in trials before, case law, 541-543 challenges causing, 564-565 complexity of case, consideration of,543 criticism, 539 factual situation , 544-546 observations, 544 reasonable time, assessment of, 542 relevant provisions , 540-541 undue, interpretation of, 541 direct enforcement by, 69 disclosure of documents, 555 efficiency, complexity of cases, effect of, facts, of, 551-552 international co-operation, 552-553 law, of, 550 uncharted waters, 549 conduct of parties, defence , 555-556 prosecution, 554 cultural factor, 551-552 increasing, improvements for, 548

Index

measures to increase, modification of Statutes, 562 Rules of Procedure and Evidence, amendment of, 563-564 pre-trial procedures, 558 frivolous motions in, 564 genocide, predicate of criminal intent for, 467-468. See also Genocide hierarchy of crimes, recognising, 529 institution of, 69, 90 joinder of trials and accused , 554 judgment writing, time for, 559 judicial activities, 545-546 KayishemalRuzindana judgment, 476-477 language in, 560-561 national rules of evidence, not following, 882 persons handed over to, 133 Prosecutor, role of, 557 purpose of, 687 rape, defining , 875 view of, 688 Registry, 560-561 Rules of Procedure and Evidence,

544 amendment, 563-564 Rutagandajudgment,477-478 Rwandan law, reference to, 883 sentencing within jurisprudence of. See Sentencing sexual violence , conviction of, 689690

1015 Statute, crimes against humanity, definition of, 871 interpretation, approaches to, 848 bold approach to, 887 contextual, 858-861 customary international law, presumption in favour of, 872-877 domestic rules, codification of, 853 effective, 859-860 golden rule, 860 ICfY Statute , by reference to, 870-872 international treaties , reference to, 877-880 judicial law-making , as, 864 literal, 855-858 mischief rule, 863 multilingual legislation, of, 884-885 national legislation, reference to, 880-884 other jurisdictions, developed by,849 overview of, 886-888 principles, not giving indication of, 847 purposive, 861-865 teleological, 861-865 travaux preparatoires, resort to, 865-870 Vienna Convention , applicability of, 849-852 object and purpose , reference to, 861-862 official language versions, 884885

1016 subject-matter juri sdiction provisions , 851 superior responsibility, mental element of, 853 United Nations , provision or resources by, 561 International Criminal Tribunal for the former Yugoslavia accused, rights of, 878-879 aiding and abetting, nature of, 882 Appeals Chamber, 547-548 authorities, conduct of, 557-561 average length of trials, 558 breaches of Geneva Convention , jurisdiction to prosecute, 254-255 cases before, 128, 135 Chambers , 558-559 competence of, 254-259 , 897 Germany , deferral by, 926-928 courtroom, single, 561 crimes against humanity, cases of, 515-516 crimes prosecuted in, 3-4 delay in trials before, case law, 541-543 challenges causing , 564-565 complexity of case, consideration of, 543 criticism, 539 factual situation, 547 observations, 544 reasonable time, assessment of, 542 relevant provisions, 540-541 undue, interpretation of, 541 direct enforcement by, 69 disclosure of documents, 555 duress as defence to charge, 889

Index

efficiency, complexity of cases, effect of, facts, of, 551-552 international co-operation, 552-553 law, of, 550 uncharted waters, 549 conduct of parties, defence, 555-556 prosecution, 554 cultural factor, 551-552 increasing, improvements for, 548 measures to increase , modification of Statutes, 562 Rules of Procedure and Evidence, amendment of, 563-564 pre-trial procedures, 558 enforcement measures, horizontal model, 298-299 no power to take, 298-299 vertical model, 298-299 establishment of, 547, 923-924 genocide , predicate of criminal intent for, 467-468. See also Genocide Germany, cooperation by. See Germany guidance , decisions as source of, 297 inhuman treatment, concept of, 877 institution of, 69, 90 Jelisicjudgment,471-474 joinder of trials and accused, 554 judgment writing, time for, 559 jurisdiction, 534 Kupreskic judgment, 211-219 language in, 560-561

Index

law of, general principles, 891 inadequacy of, 891-892 international humanitarian, 890 personal defences, 891 policy approach , application of, 889 recourse to, 892 scope of, 890-891 legality, principle of, 873 national rules of evidence, not following, 882 nullum crimen sine lege, principle of, 873, 876 powers, exceeding, 897-898 practice of, 791-826 production of documents, order for, 298,302 non-compliance with, 304 Prosecutor, role of, 557 protected persons , meaning , 856 protected persons, scope of term, 877 purpose of, 687 rape, defining, 875 Registry, 560-561 reprisals, decisions on. See Reprisals sentencing within jurisprudence of. See Sentencing serious injury, consideration of scope of, 856 sexual violence, conviction of, 690 Statute , German law, implementation in, 924-926 interpretation, adventurous, 848 approaches to, 848

1017 bold approach to, 887 contextual, 858-861 customary international law, presumption in favour of, 872-877 domestic rules, codification of,853 effective, 859-860 golden rule, 860 ICTR Statute , by reference to, 870-872 international treaties, reference to, 877-880 judicial law-making, as, 864 literal, 855-858 mischief rule, 863 multilingual legislation , of, 884-885 national legislation, reference to, 880-884 other juri sdiction s, developed by,849 overview of, 886-888 principles, not giving indication of, 847 purpo sive, 861-865 strict construction, 848 Tadic case , 847-848 , 854 teleological, 861-865 travaux preparatoires, resort to, 865-870 treaty, as, 850 Vienna Convention, applicability of, 849-852 object and purpose, reference to, 861-862 official language versions, 884885 Report of Secretary General to Security Council , appended to, 890

1018 subject-matter jurisdiction provisions, 851 subpoena, issue of, 298-300 non-compliance by official, 303 superior responsibility, scope of, 875,878 Tadic decision, 534-538 United Nations, provision or resources by, 561 war crimes, trial of, 515-516 International Fact-Finding Commission competence, acceptance of, 8-9 creation of, 8 International humanitarian law armed forces, educating, 5 broadening of, 536 civilians, protect ion of, 497 development of, 628-632 development and acceptance of, 9 general participation clause, 632-633 Geneva Conventions, criteria drawn from perspective of jus cogens, 635-636 elementary considerations of humanity, 636-638 extension of application, 632-633 grave breaches provisions, 636 jus cogens norms , 638-639 overall humanitarian aim, 633634 peremptory norms , 636 grave violations, state responsibility for, 211-219 Hague and Geneva laws, 628-629 importance of place of, 629-630

Index

International Criminal Tribunal for the former Yugoslavia, application by,631 jus cogens, classification of rules as, 632-640 importance of, 627 knowledge, dissemination of, 4-6 Martens clause , 630 peremptory norms, 170-172 prosecution of serious violations of law, requiring, 132 recent use of term, 628 relevance of, 169-175 treaty provisions, rules in, 6 UN forces, observance by, 536 violation of customary rules of, 632 violations, dealing with, 4 weapons prevented by, 631 International law basic rules, scope of, 235 crime and punishment in, 693-698 jus cogens. See Jus cogens lacuna in, 894-895 policy-oriented view, 893-896 applicability of, 896-897 political principles of, 953-956 requirements of international community, deduced from, 233 rule approach, 895 solidarist concept, 233-234 sources of, 598 subjects and actors, relationship of, 261-277 validity of, 596-598 violations, suit for, 157-158 voluntari st concept, 233 voluntary, 601

Index

International Law Commission diplomatic protection , approach to, 377-378 jus cogens , examples of, 620 Vienna Convention, working towards, 605 International legal system amorphous characteristic of, 68, 76 authoritative prerogative of, 69 burdens on, 67 characteristics of, 65 cognitive openness and normative closure , difficulty bridging gap between, 67 contemporary premise of, 67 criminal justice system. See International criminal justice system evolution of, 66 higher expectations for, 72-73 Law of the Sea regime, 68 matured characteristics, absence of, 67 national legal systems, similarity to, 65-67 newness of, 67 realpolitik, adjusting to dictates of, 67 state-centric, being, 66 sub-systems, 68 transformation in, 74 universal intemationallaw, as, 68 unsystematic accumulation of norms, etc, of, 66 International Military Tribunals basic rights, establishment of, 86 crimes against women, omission of prosecution of, 685-686

1019 establishment of, 78, 83-84 penalties, application of, 578 war crimes, conviction of, 520

Italy Genocide Convention, implementation of, 289 Judicial abstention doctrines of, 164-169 non-justiciability, 166-167 Jus cogens acts contrary to, 622 body of, 595 codification, problems arising , 608610 concept, recognition of, codification , 596, 599 development of, 601-602 formal , 602-610 ICJ, by, 604 informal basis, on, 602 League of Nations Covenant, interpretation of, 603 theoretical acceptance , 599-602 derogation, prohibition of, 595, 614619 development, hypothetical norms, from, 601602 institutionalization of international community, on, 597 international law, validity of, 596-598 national sovereignty, evolution of,597 natural law, from, 601-602 elevation to status of, 619

1020

Index

emerging norms of, 622-624 erga omnes obligations, 618-619 examples of, 619-622 general principles of law, 614 general treaties, norms in, 613 Geneva Conventions, provisions of, 638-639 Genocide Convention, provisions of, 640 human person, rules protecting, 621 identification of norms, 640 impact on treaties, 621 inter partes . 611 international custom, under, 613 international humanitarian law, classification of rules of, 632-640 Geneva Conventions, provisions of, 638-639 Genocide Convention, provisions of, 640 importance in, 627 International Law Commission examples, 620 international public policy, rules of, 617-619 natural law principles, 599-600 new concept, creation of, 623 notion of, 595 peace and existence and equality of States, ensuring maintenance of, 622 positive law, as integral part of, 602 pre-requisites, acceptance and recognition by international community of States, 612-614 derogation, prohibition of, 614619

general international law, norm of, 611 modification, means of, 614-619 principles, 595 sources of, 613 treaties violating, invalidity of, 624627 universal reasoning, 599 Vienna Convention, codification, as, 596 definition in, 608 developments leading to, 602605 difficulties arising after, 608-610 discussion during, 605-608 evolution of norms, description of, 622 Justice evil consequences, as imposition of, 698-703 layers of, 704 restorative, adjunct to traditional forms, as, 704 methods of dispensing, 703 philosophy of, 701-703 South African Truth and Reconciliation Commission, description by, 703 truth commissions, role of. See Truth and reconciliation commissions truth , full disclosure of, 704 -705 retributive concept, socio-ethical foundation of, 698-699

1021

Index

Korean war collective measures to protect states, 337 Kosovo challenge of, 937 crisis , UN response to, 345-346 humanitarian intervention, as catalyst for change regarding , 947948 NATO intervention, situation prior to, 251-253 use of force against Yugoslavia, ending, 939 Legal systems domestic public order, preserving, 71 evolution of, 72 globalization, in era of, 71-76 government system, as part of, 75 higher expectations for, 72-73 international. See International legal system Medical research standards, setting, 828 Medicine standards, setting, 828 Mens rea attempt, of, 19 common law tradition, in, 470 context element, of, 13 crimes against humanity, of, 524-526 crimes against humanity . See Crimes against human ity Elements, in, 12-16 forms of, 470

genocide, of. See Genocide international criminal law, in, 40 precise requirements, 470 requirement, examination of, 11 rigorous requirement, imposition of, 853 war crimes . of. See War crimes Minorities prevention of discrimination and protection of, 724 Morality legal regime built on, 346, 348 Natural law immutable principles of, 599 obligation to observe, 600 Netherlands extraterritorial offences, prosecution of,293 Non-governmental organizations humanitarian assistance, provision of,242 network of, 89 North Atlantic Treaty Organization Baker-Genscher proposals, 908-909 , 911 Central and Eastern Europe, relationship with, 901-904, 908 US, change of position of, 913 Copenhagen Statement, 904 Czechoslovakia, relationship with, 901 former Warsaw Pact members , rapprochement with, 908 Hungarian Formula, 906 Kosovo, action s in, 937

1022

Index

non-enlargement of membership, basic posture of, 900 North Atlantic Cooperation Council, 915-919 Poland, relationship with . See Poland Rome Declaration, 910-911 Rome Summit, 1991,910,913 Visegrad Triangle states , cooperation with, 909-910, 912 Organization of American States democratic governments in, 744 diplomatic sanctions by, 350 Ottoman Empire Concert of Europe, member ship of, 234 humanitarian intervention in, 244 Peace threats to, broadening definition of, 326 Piracy international jus cogens crime , as, 121 Poland neutral status for unified Germany, opposing, 922 North Atlantic Alliance, relationship with, beginning of, 899 common security space, 914 cooperation, 900 extension of area, 899-900 Hungarian Formula, 906 March 1991, question on membership in, 903

non-enlargement of membership, basic posture of, 900 official position, 901 Olszewski government, of, 920921 President Walesca, visit by, 905906 transition in, 906 Warsaw seminar, 914-915 Olszewski government, 919 Soviet policy, fears regarding, 908 Police United Nations, exercise of powers by, 342 Portugal extraterritorial offences, prosecution of, 286 Prisoners of war Geneva Conventions, 6-7 International Committee of the Red Cross, role of, 7 mistreatment of, 6 protecting powers, absence of, 6 designation of, 7 system of, 7-8 treatment, scrutiny of, 6 Rape. See Sexual violence Reprisals bans on, 482-483, 488 -490 belligerent, notion of, 481-482 civilians , against, 482, 500-506, 509 compliance with international law, inducing, 501 conditions for 481

1023

Index

customary intemationallaw, rule of, 502 dissident states, matter of, 502 Geneva Convention, protocols to, 482-483 inter-state conduct, 481 internal armed conflict, in, 504 international law, sources of, 507 international rules of, 498 Iraq, by, 503 Justinian maxim, 507 Kupreskic judgment, conclusion as to, 508-509 facts of case, 494-495 parts of, 494 precedent, value and binding force of, 506 preliminary issues, 496 Trial Chamber, decision of, 495507 law, rewriting of, 508 Martens Clause, 487, 499 Martie Rule 61 decision, applicable rules , identification of, 486-488 conclusion as to, 508-509 counter-attacks, 488 discussion, 486 facts of case, 483-475 legitimacy of reprisals, 488-490 parts of, 485 serious violations, 492 Trial Chamber, decision of, 490492 meaning , 481 persuasive authority, decisions lacking, 508 proportionality, 498

reciprocity, question of, 496 Tadic decision, 492-494 wanton attack, 499-500 Russia attempted coup, August 1991, 907 Genocide Convention, implementation of, 290 Self-defence anticipatory, 330-335 constructive, 331-335 extreme necessity, instances of, 334 indirect aggression, against , 331-335 inherent right to, UN Charter provisions. See United Nations Charter reaction to claims of, 332 Sentencing aspects of, 567 circumstances influencing, age of defendant, 591-594 aggravating, 587 guilty plea, 590-591 mitigating, 587 number of victim , 589 Nuremburg, at, 587 old age, 593 perpetration, manner of, 588-590 personal, 591 crime, punishment fitting, 694 crimes against humanity, for, 583 definition, 567 discretion in, 582-584 enforcement, 701 genocide, for, 583 individualization of penalties, 578

1024

Index

International Criminal Court, Statute of, 584 International Military Tribunals , by, 578 International Tribunals, discretion of, 582-584 jurisdiction of, 569 national sentences, uniformity in relation to, 579-581 objectives , 570 penalties, application of, 578 proportionality, 569 uniformity within , 581-582 victim, views of, 585-587 limitations, 577 objectives , classical theory, in, 568 denunciation, 575-576 deterrence, 568, 572-573 impunity, thwarting, 576 International Tribunals, of, 570 prevention, 568 rehabilitation, 568, 573-575 reprobation, 575-576 retaliation, 695 retribution, 568, 570-572, 695 revenge, 695 society, protection of, 577 stigmatization, 575-576 statutory range of, 582-584 supervision, 701 Trial Chamber, by, 584 types of penalties, 694 uniformity in, general remarks , 577-579 International Tribunals, in, 581582

national sentences, in relation to, 579-581 victim , views of, 585-587 war crimes, for, 583 Settlement of disputes bilateral and multilateral conciliation treaties, 750-752 conciliation, commissions, 752-753 core characteristics of, 752 function of, 752 Vienna Convention, 753-754 friendly. See Friendly settlements UN Handbook, 752 Sexual violence coercive circumstances, 689 criminal responsibility for, 690 genocide, as, 689 individual incidents, judicial consideration of, 691 International Criminal Tribunal for the former Yugoslavia, definition adopted by, 690 international law, rule of, 691-692 International Military Tribunals, exclusion of crimes from, 685-686 nature of, 688 rape, aggression as form of, 688 central elements of, 688 definition, 688 national legislation, broadening of definition in, 691 Tutsi women, of, 689 violation , humiliation of, 687-688 Slavery international jus cogens crime , as, 121

1025

Index

Somalia collective measures to protect states in, 340-341 Soviet bloc military organs and structures, dissolution of, 903 Spain genocide, recognition of principle of universality, 294 State immunity comity as foundation of, 154 dignity of State, protecting, 153 general jurisdictional issues, intermingling with, 153 general rule, exceptions to, 152-153 immune and non-immune transactions, 152 indefined contours of, 153 independence and sovereignty , principle of, 153-154 international law regime, implementation of, 160 international law violation, suit for, 157-158 intervention in legal proceedings, effect of, 176 legal justification, 153 legal regime , variation of, 151 municipal codification of law, 154155 reduction of scope, 176 State officials, residual immunity of, 161-164 theoretical foundation, 169 traditional approach , inadequacy of, 151- 156 UK statutory provisions, 159-160

violation of human rights law, accountability for, 150-151, 156161 State responsibility critical appraisal, 380-382 injured State , position of, 379-380 International Law Commission, current approach of, 378-380 internationalement illicite, pour, 655-683 law of, 971 preparation, obligation to make, 379 specially affected State, 378-379, 381-382 state rights, and, 394-397 States human rights violations. See Human rights legal relations among, 172 lives of citizens abroad, intervention to protect , 238-240 municipal courts , accountability of States before , 149-151 officials, residual immunity of, 161164 privilege s, relinquishment of, 177 universality principle, exercise of jurisdiction under, 173 Superior orders defence of, 304 Sweden genocide, prosecution of, 294 Switzerland genocide, prosecution of, 286 Torture accomplice liability, 862

1026

Index

amnesty, 133 convention, 133 definition, 877 European Convention . See European Convention for Prevention of Torture and Inhuman or Degrading Punishment or Treatment immunity from jurisdiction for, 159 international ju s cogens crime, as, 121 prohibition as peremptory norm of internationa11aw, 175 prosecution, requiring, 134 Treaties interpretation rules, 847 morality of object of, 605 penal statutes, strict construction of, 852-855 peremptory norms of general international law, conflicting with, 608 Vienna Convention, ad hoc Tribunals, application to, 849-852 codification, 596, 599 developments leading to, 602605 difficultie s arising after, 608-610 humanitarian law provision, 634 International Law Commission, work of, 605-608 interpretation, contextual, 858-861 effective , 859-860 general rule of, 849 golden rule, 860 literal, 855-858 mischief rule, 863

ordinary meaning of terms, 856 penal statutes, strict construction of, 852-855 purposive, 861-865 teleological, 861-865 textual and teleological approach , 857 travaux preparatoires, resort to, 865-870 jus cogens, discussion of, 605608. See also Jus cogens object and purpose, reference to, 861-862 violating jus cogens, invalidity of, 624-627 withdrawal of party from, 311 Tribunals international. See International courts and tribunals Truth and reconciliation commissions ad hoc character of, 644 amnesties, role of, 645-647 application of justice with mercy, 651 Chile, experience of, 647-649 civil sanctions, 645 community, participation by, 710 composition, 129,643,720 costs of, 722 details of atrocities , narration of, 712 development of, 643-644 domestic arrangements for, 643 educational process, 721 efficacy of process, 713 establishment, commencement of, 719 government leadership, 716-720

1027

Index

international aspects, 722-725 legislative action, 720-722 mindset, changing, 716-720 preparatory work, 716-720 religious and community leadership, 720 experimentation with, 128 fragility of process, 713 functions of, 644 goals of reconciliation, concentration on, 717-718 guidelines for, 714-715 heightening of interest in, 714 human rights dialogue, 649-652 institution of, 128 international, possibility of, 726-728 prospect of, 129 intemationallaw, compatibility with, 130-131 issues dealt with, 644 lawyers and judges, exclusion from membership, 720 model of, 643 national, aims of, 706 creation of, 706 normal work of courts , supplementary to, 651 number of, 643 obligation to prosecute, and, 722724 parameters of conditions, 713 peaceful transition , aim of, 131 positive benefits, promotion of, 717 powers and functions, 720 powers of, 129

prevention of gross violation of human rights, recommendations for, 721 process, phases of, 710-711 provision of information, confidential nature of, 650-651 published truth as foundation of, 710-716 reconciliation, difficult attainment of, 647-649 promising approach to, 649-652 religion , contribution of, 727-728 responsibility, acceptance of, 649 restorative justice, adjunct to traditional forms, as, 704 description of, 703 methods of dispensing, 703 philosophy of, 701-703 programme of, 715 truth, full disclosure of, 704-705 sanctions and prosecution, 645-647 South African, 129 success, improving, 652-653 Table of Dialogue, 649-652 third way, as, 645 transition , circumstances of, 716 transitional societies , in, 130 truth, full disclosure of, 704-705 United Nations, under, 643 victim and perpetrator, confrontation of, 708-709 victimlkin statements, 711 United Kingdom Genocide Convention, implementation of, 288-289

1028

Index

United Nations capacity of system, 315 case against, 344 changing circumstances, response to, 313 collective measures to protect states, adaptation of system, 336-337 authorized action, 338-339 blue helmet police powers, 342 coalitions, authorization of, 337338,340 Desert Storm, 338 Dumbarton Oaks proposals, 336 former Yugoslavia, in, 341-342 Haiti, in, 341 Israeli border, on, 343 Korean War, in, 337 request for, 339 Somalia, in, 340-341 system of, 335-344 voluntary participation, 339 common heritage, concept of, 841 constituency of, 62-63 credibility, diminished, 936 crises , rethinking of response to, 940 implied powers for performance of duties, 314 institutional limitations, 344-345 , 348 law, capable of making, 312 membership, effect on States , 63 peace-keeping missions, 243, 343 political organs, legality of acts of, 41-44 programmatic failure s, 344 purposes and principles of, 57 reform of system , call s for, 349

regional organizations, shared responsibility with, 347, 350 Secretary General, address at the Hague, May 1999, 938 address to the General Assembly, September 1999, 939-941 sovereignty and human rights protection, balancing, 323-327 total community, 51 United Nations Charter adaptation of system, 349 amendment, procedure for, 311 attacks on, 940 autochthonous law-making capability, 312-315 blocking power, 311-312 collective measure s to protect states , system of, 335-344 constitution, as, 310-312 construction of, 309-310 evolution of, 344 evolutionary adaptation of, 310 foreign inter vention , jurisdiction , expending, 325-326 justification of, 327 prohibition, 323-325 General Assembly , empowering, 316-323 global design, 58 implied powers, 314 International Court of Justice, advisory opinion of, 313 International Court of Justice Statute, relationship with, 49-53 international law, as part of, 63 interpretation, application of Vienna Convention , 850

Index

partial community constituted by, 51 personality, not conveying on UN, 313-314 self-defence, inherent right to, adaptation of provisions, 331335 advances in technology of war, effect of, 330 anticipatory, 330-335 armed attack, in case of, 331 collective, 328-329 constructive, 331-335 exercise of, 330 indirect aggression , against , 331335 original intent, 328-331 reaction to claims of, 332 unanticipatable circum stances in which acting , 315-316 use of force, prohibition on, 347, 349 United Nations Emergency Force military enforcement by, 321 Suez Canal, deployment at, 343 Uniting for Peace resolution, operating under, 320-322 United Nations General Assembly cold war, role in, 316 collective measures, negotiation of, 323 emergency sessions, 320 empowering, 316-323 matters affecting international peace, authority and responsibility for, 318 peace and security, maintenance of, 316-317

1029 UNEF and ONUC operations, authorization of, 322 Uniting for Peace resolution, 318320

United Nations Security Council armed forces, responsibility for, 319 Article 39 conditions, determining existence of, 54 collective action, indecision on, 248 Congolese civil war, use of forces in, 312,326,343 dispute-conciliation and peacepreservation functions, blurring of distinctions, 47 dispute-handling, 47-49 foreign intervention, application of prohibition, 324 International Court of Justice , relation ship with, 47 Kosovo crisis, respon se to, 345-346 maintenance of peace , primary competence in, 45 military force, imposition of will with, 325 NATO air-strikes against Yugoslavia, approval of, 236-237 peace and security, maintenance of, 317 permanent members , abstentions by, 314-315 resolution, members opposing, 62 review of decisions by International Court of Justice . See International Court of Justice safe areas , resolution establishing, 345 South Africa, enforcement against, 327

1030

Index

treatment of disputes, competence in, 47 United States act of state, statutory defence of, 303 genocide, prosecution of, 284-286 tort law, principle of universality, 285 United States Supreme Court decisions, early enforcement problems, 91 Venezuela Genocide Convention, interpretation of,291 War. See also Armed conflict surrogate warfare, 333 War crimes armed conflict, requirement of, condu ct within context of, 38 contextual element, 34 factual circumstances, awareness of,36 international or noninternational, 36-39 jurisdictional element, as, 33 objective public international law approach , 33, 39 reading of, 32-33 subjective criminal law approach, 33-349 core crimes, as, 511 crimes against humanity, and, 520, 523 criminal responsibility, general criminal law, under, 3536

situations of, 35 deterrent to, 6 elements of, 15-16 First World War, prosecutions following, 80-82 functional immunity, general rule of, 300-301 Geneva Convention , repress ion of breaches of, 2 Germany, Code in. See Germany intent requirement, existence, inferring, 39 factual circumstances, awarenes s of,36-37 nature of conflict , as to, 36-37 protected persons or objects , 37 Tribunals , case law of, 38 international, context of, 37-38 international criminal accountability for, 78 International Criminal Tribunal for the former Yugoslavia, cases before, 515-516 international jus cogens crime, as, 121 International Military Tribunal, conviction at, 520 international tribunal , establishment of, 3. See also International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia mass punishment of, 39 mens rea, 524-526 modem scope of, 526-528 nature of conflict, legal evaluation of,15 objects of, 32

Index

plan or policy, as part of, 32 potential prosecutions for, 93-94 prisoners of war, by captors of, 3 prosecuting, 2-4 prosecution and punishment, shortcomings of system for, 3 prosecution, request for production of evidence, 302 protected persons, 35 punishable courses of conduct, comparison of, 34-35 punishment, parties responsible for, 2 Second World War, prosecutions following , 83-87 sentencing. See Sentencing seriousness of, 514 sexual assault, failure to include, 685-686 systematic nature of, 522 trial without delay, 543 Yugoslavia, Federal Republic of collective measures to protect states in, 341-342 full cooperation, mandatory obligation of, 349 NATO action against, 349-350 NATO air-strikes against, aggression, as act of, 237 crime, not, 254 criminal intention, lacking , 255 International Criminal Tribunal for the Former Yugoslavia, competence of, 254-259 legitimate act of humanitarian intervention, as, 238 political requirement for, 254

1031 safe areas , in response to attacks on, 243-244 situation on Kosovo prior to, 251-253 UN Security Council , approval by, 236-237 peace-keeping missions, 243 weapons and military equipment, embargo on, 243

1032