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Progress in International Criminal Law?

Published online by Cambridge University Press:  27 February 2017


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1 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9* (visited Mar. 15, 1999) <> [hereinafter ICC Web site], reprinted in 37 ILM 998 (1998) [hereinafter ICC statute], and in Is a UN International Criminal Court in the U.S. National Interest? Hearing Before the Subcomm. on International Operations of the Senate Comm. on Foreign Relations, 105th Cong. 79 (1998) [hereinafter ICC Hearing].

2 Prosecutor v. Akayesu, Judgement, No. ICTR-96-4-T (Sept. 2, 1998) (visited Mar. 15, 1999) <>, summarized in 37 ILM 1401 (1998), and in 93 AJIL 195 (1999).

3 For the indictment (Auto de procesamiento) (in Spanish), see (visited Mar. 16, 1999) <> and <>. For edited excerpts of the indictment (in English), see They Drove Augusto Pinochet to Face Justice Yesterday. This Is Why, Independent, Dec. 12, 1998, at 1. A full English translation is expected to be available through a link to (visited Mar. 16, 1999) <∼publica/case.html>. The validity of the Spanish indictment was upheld in In re Pinochet, Nov. 4, 1998, and Nov. 5, 1998 (Nos. 19/97, 1/98, respectively, Nat’l Ct., Crim. Div.) (plen. sess.). Other prosecutions have also been initiated against Pinochet for such crimes, e.g., In re Pinochet Ugarte, Trib. 1st inst. Brussels (investigating magistrate), Nov. 8, 1998; Pinochet v. Procureur de la République [Chanfreau, Claudet & Pesle], T.G.I. Paris, Order, Nov. 2, 1998; Pinochet v. Procureur de la République [Baquet & Klein], T.G.I. Paris, Order, Nov. 12, 1998; Pinochet v. Procureur de la République [Ropert Contreras & Père Jarlan], T.G.I. Paris, Orders, Dec. 10, 1998. All of these domestic cases will be summarized in the July 1999 issue of the AJIL.

4 Prosecutor v. Furundžija, Judgement, No. IT-95-17/1-PT (Dec. 10, 1998) (visited Mar. 15,1999) <>.

5 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Statute, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute]; International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, Statute, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

6 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, Arts. 19–37, 213 UNTS 221. See J. G. Merrills, The Development of International Law by the European Court of Human Rights (1993).

7 American Convention on Human Rights, Nov. 22, 1969, Arts. 33, 52–73, OASTS No. 36, 1970, 1144 UNTS 123. See Scott Davidson, The Inter-American Human Rights System (1997); Jo M. Pasqualucci, The Inter-American Human Rights System: Establishing Precedents and Procedure in Human Rights Law, 26 U. Miami Inter-Am. L. Rev. 297 (1995); Dinah Shelton, The Jurisprudence of the Inter-American Court of Human Rights, 10 Am. U.J. Int’l L. &Pol’y 333 (1994).

8 African Charter on Human and Peoples’ Rights, June 27,1981, OAU Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 ILM 58 (1982). See Burns H. Weston, Robin Ann Lukes & Kelly M. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand.J. Transnat’l L. 585, 608–14 (1987).

9 Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

10 See Tom J. Farer & Felice Gaer, The UN and Human Rights: At the End of the Beginning, in United Nations, Divided World 240 (Adam Roberts & Benedict Kingsbury eds., 2d ed. 1993).

11 ICC jurisdiction is limited to persons who are nationals of states parties to the statute or who committed listed crimes within the territory of a state party. ICC statute, supra note 1, Art. 12. The crimes within the court’s jurisdiction include genocide (Arts. 5(1) (a) & 6), crimes against humanity (Arts. 5(1) (b) & 7), war crimes (Arts. 5(1)(c) & 8), and (once an agreement is reached in the future) aggression (Art. 5(1)(d) & (2)). Furthermore, if the accused is the subject of prosecution in a domestic court, prosecution before the ICC is essentially precluded. Id., Arts. 17, 20.

12 Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279; Protocol to Agreement and Charter, Berlin, Oct. 6, 1945, 59 Stat. 1586, 3 Bevans 1286; Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, TIAS No. 1589, 4 Bevans 20 (amended Apr. 26, 1946, 4 Bevans 27).

13 See Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AJIL 22, 29–36 (1999); Darryl Robinson, Defining “Crimes against Humanity” at the Rome Conference, 93 AJIL 43 (1999).

14 The provisions in the statute distancing the definitions of crimes within the ICC’s jurisdiction from general international law were intended to avoid obstructing further development of the law and not to prevent those definitions from influencing its evolution: “Nothing in [the definitions of crimes in this statute] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” ICC statute, supra note 1, Art. 10. Regardless of this text or its purpose, it is unavoidable that such important and rare multilateral-treaty-based definitions of these crimes will influence the general international law on the subject. See Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993).

15 See ICC statute, supra note 1, Arts. 6–8.

16 See ICC Web site, supra note 1.

17 See Robert F. Drinan, An International Criminal Court: Holy See, Yes; U.S.A., No, America Press, Oct. 10, 1998, available in 1998 WL 13368213 (China, Libya, Iraq, Israel, Qatar, the United States and Yemen); Palestinian Leaders Hail UN “Rejection” of Israeli Occupation, Agence France-Presse, July 25, 1998, available in LEXIS, News Library, Curnws File (China, India, Iraq, Israel, Libya, Russia and the United States); Gwynne Dyer, World Court Second Blow for U.S., Toronto Star, July 24,1998, at 1 (China, Libya, Algeria, Iraq, Israel, the United States, and one or two others).

18 See David J. Scheffer, The United States and the International Criminal Court, 93 AJIL 12 (1999); ICC Hearing, supra note 1, at 9.

19 Omnibus Consolidated and Emergency Supplemental Appropriations for Fiscal Year Ending September 30, 1999, and for other Purposes, Pub. L. No. 105–277, §§554, 2502,112 Stat. 2681, 2681–188, 2681–836 (1998). See We must slay this monster: Personal View Jesse Helms, Fin. Times (London), July 31, 1998, at 18.

20 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

21 See Attorney-General v. Eichmann, 45 Pesakim Mehoziim 3 (1965), 36 ILR 5, 233 (D.C. Jm. 1961), aff’d, 16 Piskei Din 2003, 36 ILR 277 (S. Ct. 1962) (Isr.) (genocide); Effectuating International Criminal Law through International and Domestic Fora: Realities, Needs and Prospects, 91 ASIL Proc. 259 (1997); Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: .From Trouvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289 (1994).

22 See Elizabeth Becker, Pol Pot’s End Won’t Stop U.S. Pursuit of His Circle, NY. Times, Apr. 17, 1998, at All.

23 See Identical letters dated 21 January 1999 from the Permanent Representative of Cambodia to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/53/801-S/1999/67 (Jan. 22, 1999); Seth Mydans, Of Top Khmer Rouge, Only One Awaits Judgment, N.Y. Times, Mar. 14, 1999, at 6; Elizabeth Becker, U.N. Panel Wants International Trial for Khmer Rouge, N.Y. Times, Mar. 2, 1999, at 1 (China threatens Security Council veto).

24 Extradition from the United Kingdom, if granted, will not cover the crime of genocide. The doctrine of speciality will limit the Spanish prosecution to the crimes for which Pinochet is extradited—torture after December 8, 1988—if he is extradited at all. See text infra at note 33.

25 Restatement (Third) of the Foreign Relations Law of the United States §404 (1987).

26 See Attorney-General v. Eichmann, supra note 21, 36 ILR at 304 (universal jurisdiction); SC Res. 138, UN SCOR, 15th Sess., Res. & Dec, at 4, UN Doc. S/INF/15/Rev.1 (1960); Report of the Security Council to the General Assembly, 16 July 1959–15 July 1960, UN GAOR, 15th Sess., Supp. No. 2, at 19–24, UN Doc. A/4494 (1960) (reporting on the above resolution but identifying it as S. 4345).

27 Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993). There have been a few other examples of the successful use of universal jurisdiction by domestic courts. Interestingly, they arise out of the Yugoslav conflict and would be within the jurisdiction of the ICTY, indicating that the establishment of the ICTY has in some way facilitated such domestic prosecutions. See Andreas R. Ziegler, Case note, In re G., 92 AJIL 78 (1998) (Mil. Trib., Div. 1, 1997) (Switz.) (describing the prosecution for violations of the laws and customs of war in Bosnia-Herzegovina based on universal jurisdiction, but noting that the accused was not convicted in this case); Christoph J. M. Safferling, Case note, Public Prosecutor v. Djajić, 92 AJIL at 528; Director of Public Prosecutions v. T (E. High Ct. 3d Div. 1994) (Den.) (Ministry of Foreign Affairs Legal Service, unofficial trans.) (convicting on the basis of universal jurisdiction for war crimes and crimes against humanity committed in Croatia) (on file with author). In two French criminal cases, involving actions in the former Yugoslavia and in Rwanda, the courts denied universal jurisdiction. In re Javor, Cass, crim., Mar. 26, 1996, 1996 Bull. Crim., No. 132, 379; In re Munyeshyaka, Cass, crim., Jan. 6,1998,1998 Bull. Crim., No. 2, 3. These cases are summarized infra at p. 525.

28 Support for this result can be found in the fact that there have been two clusters of such domestic court prosecutions. The first cluster includes the prosecutions of Nazis and Nazi supporters arising out of World War II that furthered the goals of Nuremberg and the political consensus supporting that Tribunal. The second includes several prosecutions for the crimes that are also within the jurisdiction of the ICTY and the ICTR, thus building upon the lead taken by these Tribunals. See supra notes 26, 27. Rwandan national courts are also prosecuting these crimes. The mere existence of these international tribunals may have provided indirect political protection for the prosecuting states. Such protection may also be a byproduct of the ICC. Furthermore, the ICC may ease the burden on a state holding a suspect that wishes neither to undertake domestic proceedings nor to refer the case to the international court, as it may initiate the prosecution itself (perhaps through a nonpublic communication from a state) or in response to a referral by the UN Security Council.

29 ICC statute, supra note 1, Art. 12. Some suggest that the exercise of universal jurisdiction by the ICC, absent reference by the Security Council, would violate international law by essentially imposing the ICC regime on nonparty states. I question this view. If a state has universal jurisdiction over a suspect, it may choose to prosecute that person in its domestic courts or to delegate that authority to other courts, including the ICC (assuming relevant human rights are protected). The nonparty status of the accused’s state of nationality is irrelevant; rather, the state’s possession of the accused is the relevant basis of authority and jurisdiction. Consistent with this view is the fact that many states, including the United States, are parties to international agreements allowing prosecutions of nationals of nonparty states for international crimes, e.g., Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85; International Convention against the Taking of Hostages, Dec. 17, 1979, TIAS No. 11,081, 1316 UNTS 205. Referral by the Security Council involving a state that is not a party to the ICC statute presents a somewhat different situation. If the Council acts under its Chapter VII authority, its decision binds all parties to the UN Charter as well as parties to the statute. UN Charter Art. 25. With respect to states that are not parties to the United Nations or the ICC, the Charter commits the Organization and member states to ensure their compliance. Id., Art. 2(6). See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 56, 58, paras. 126, 127, 133(3) (June 21).

30 Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, [1998] 3W.L.R. 1456 (H.L.), reprinted in 37 ILM 1302 (1998) [hereinafter Pinochet I]. See Warren Hoge, Briton Won’t Free Pinochet, Ruling the Case Can Proceed, N.Y. Times, Dec. 10, 1998, at A3.

31 Pinochet I, supra note 30, 37 ILM at 1333 (Lord Nicholls).

82 Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, [1999] 2 W.L.R. 272 (H.L.), reprinted in 38 ILM 430 (1999) [Pinochet II ]. See Warren Hoge, Pinochet Wins a Round as the Law Lords Void a Ruling, N.Y. Times, Dec. 18, 1998, at A3.

33 Convention against Torture, supra note 29. Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, [1999] 2W.L.R. 827 (H.L) [hereinafter Pinochet III]. The six in the majority were Lords Browne-Wilkinson, Hope of Craighead, Hutton, Saville of Newdigate, Millett, and Phillips of Worth Matravers. Lord Goff of Chieveley dissented on the ground that Chile had not waived state immunity. This decision will be summarized in the July 1999 issue of the AJIL. In conformity with his decision after Pinochet I, supra note 30, the British Home Secretary permitted the extradition proceedings to go forward subsequent to the Law Lords’ decision in Pinochet III, supra. See Warren Hoge, Britain Decides to Let the Pinochet Extradition Case Proceed, N.Y. Times, Apr. 16, 1999, §1, at 4.

34 Pinochet I, supra note 30. See Marlise Simons, Judges in Spain Assert Pinochet Can Face Trial, N.Y. Times, Oct. 31, 1998, at Al.

35 See Warren Hoge, Pinochet’s Case Moves to Realm of Blair’s Aides, N.Y. Times, Nov. 27, 1998, at Al; Marlise Simons, Pinochet’s Spanish Pursuer: Magistrate of Explosive Cases, N.Y. Times, Oct. 19, 1998, at Al.

36 See Tim Weiner, Europeans, But Not U.S., Rejoice at Ruling, N.Y. Times, Nov. 26, 1998, at A8.

37 In Decree 2191 of April 18, 1978, Pinochet’s military government issued a general amnesty to officials acting in their official capacities during the period between the coup of September 11, 1973, and March 10, 1978. Decree Law No. 2191, Diario Oficial, No. 30,042, Apr. 19, 1978, excerpted in Report of the Chilean National Commission, infra, at 89. This amnesty decree was issued two years before Pinochet left office and was upheld by the Chilean Supreme Court in a 1990 decision. Insunza Buscunan, Ivan Sergio (recurso de inaplicabilidad), Revista de Derecho y Jurisprudencia y Gaceta de los Tribunales, May-Aug. 1990, at 64 (S. Ct. Aug. 24, 1990). See Margaret Popkin & Naomi Roht-Arriaza, Truth as Justice: Investigatory Commissions in Latin America, in 1 Transitional Justice 262, 285–86 n.77 (Neil J. Kritz ed., 1995). The Chilean Truth and Reconciliation Commission (Rettig Commission) was established by the new government in 1990. Supreme Decree No. 355, Diario Oficial, Apr. 25, 1990, reprinted in Report of the Chilean National Commission, infra, at 5. That commission issued a report on February 9, 1991. Report of the Chilean National Commission on Truth and Reconciliation (Phillip E. Berryman trans., 1993).

38 South African Truth and Reconciliation Commission, Final Report Delivered to President Nelson Mandela on October 29, 1998 (visited Mar. 16, 1999) <>. The commission was mandated by the Promotion of National Unity and Reconciliation Act 34 of 1995. The open nature of the process that led to the commission is described in the Report: “It is important to note the uniquely open and transparent nature of the process that preceded the adoption of the Bill. Civil society played an influential role in the months of debate and compromise leading to its adoption. The parliamentary Portfolio Committee on Justice conducted extensive public hearings.” 1 id., ch. 4, para. 22. Amnesties were granted at the time the Report was issued. 5 id., ch. 3. See Jennifer L. Balint, Accountability for International Crime and Serious Violations of Fundamental Human Rights: The Place of Law in Addressing International Regime Conflicts, 59 Law & Contemp. Probs. 103 (1996).

39 See Laurie Goering, Wariness of Arrest Abroad Keeps Many in S. America, Chicago Trib., Dec. 15, 1998, at 6.

40 Pinochet III, supra note 33.

41 See Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AJIL 57 (1999); Kelly D. Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, 93 AJIL 97 (1999).

42 See Judge Gabrielle Kirk McDonald, President of the International Tribunal for the Former Yugoslavia Addresses the United Nations Security Council, Press Release, ICTY Doc. JL/PIU/371-E (Dec. 8, 1998) (visited Mar. 18,1999) <>; Murphy, supra note 41, at 58–60, 75–76, 96.

43 See Murphy, supra note 41, at 60.

44 See Arsanjani, supra note 13, at 22; Philippe Kirsch &John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 AJIL 2, 4–5 (1999).

45 ICC statute, supra note 1, Arts. 12–15, 125.

46 Id., Art. 16.

47 Id., Arts. 86–102.

48 Id., Art. 17. E.g., United States v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (C.M.A. 1973).

49 The ICC must have custody of the accused in order to prosecute. ICC statute, supra note 1, Art. 63. Failure of an obligated state to produce requested necessary evidence permits the court to draw negative inferences against the accused. Id., Art. 72. A national security claim by a state, if substantiated, would exclude the use of evidence covered by the claim. Id. Failure of an obligated state to cooperate with the ICC may be referred to the Assembly of the Parties or to the UN Security Council (if it had referred the case to the ICC). ICC statute, supra note 1, Arts. 87(7), 112(2) (f). The assembly has the authority to recommend a settlement of the dispute or to refer the matter to the International Court of Justice. Id., Art. 119. The statute, however, does not grant the ICJ compulsory jurisdiction. An assembly request for an advisory opinion would require the authorization of the UN General Assembly; however, the opinion would not be directly binding on the recalcitrant state. Matters referred to the ICC by the Security Council may be referred back to it by the assembly. If the controversy falls within its Chapter VII authority, the Council may mandate compliance and take appropriate enforcement actions. General international law on the breach of treaty obligations would also apply. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, reprinted in 63 AJIL 875 (1969).

The ICC does have the advantage that no statute of limitations bars prosecution after a certain period of time. Thus, the risk of prosecution would never cease, making it possible for the matter to be referred to the ICC by a new government of the state in which the accused found refuge or by a state to which the accused might travel. National courts have taken differing positions on the statute of limitations issue. France applies normal statute of limitation rules. In re Javor and In re Munyeshyaka, supra note 27; Pinochet v. Procureur de la Republique, supra note 3. In contrast, a Belgian court found that international law forbids the application of statutes of limitation to such crimes. In re Pinochet Ugarte, supra note 3.

50 ICTY Statute, supra note 5, Art. 29.

51 See SC Res. 1192, UN SCOR, 53d Sess., 3920th mtg., at 1–2, UN Doc. S/RES/1192 (1998); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Lib. v. UK) (Lib. v. U.S.), 1998 ICJ Rep. 9 (Feb. 27) (visited Mar. 16,1999) <>; Marlise Simons, 2 Libyans Formally Charged in 1988 Pan Am Bombing, N.Y. Times, Apr. 9, 1999, at 6.

52 See Philip Shenon, Taliban Says Bin Laden is Gone, N.Y. Times, Feb. 18, 1999, at A13.

53 See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 24–25, §1.5(4) (1986); Johannes Andenaes, Punishment and Deterrence (1974); Daniel S. Nagin, Criminal Deterrence Research at the Outset of the Twenty-First Century, 23 Crime & Just. 1 (1998).

54 See Andenaes, supra note 53, at 21–22.

55 See Carlotta Gall, European Group Cites Evidence of War Crimes, N.Y. Times, Apr. 24, 1999, at 6.

56 Some even argue that this behavior is biologically imprinted in the human species. See Francis Fukuyama, Women and the Evolution of World Politics, Foreign Ait., Sept./Oct. 1998, at 24.

57 See Kirsch & Holmes, supra note 44, at 10.

58 See Jonathan I. Charney, U.S. Provisional Application of the 1994 Deep Seabed Agreement, 88 AJIL 705 (1994); Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AJIL 687 (1994); Louis B. Sohn, International Law Implications of the 1994 Agreement, 88 AJIL 696 (1994).

59 The inability of the U.S. executive branch to control the Senate’s advice and consent process is a structural part of the separation of powers in the nonparliamentary U.S. system of democratic government. Senate refusal to consent to the ratification of a treaty signed or otherwise endorsed by the President is inherent in the system and not unprecedented. Nevertheless, a high rate of such failures weakens the ability of the United States to conduct international relations. This is especially troublesome because it reflects the inability of the President and the Senate to establish effective political and practical relations for the coordination of foreign policy.

60 See generally Alexander M. Bickel, The Least Dangerous Branch (1986).

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