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International Criminal Law and the Role of Domestic Courts

Published online by Cambridge University Press:  30 March 2017

Jonathan I. Charney
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Editorial Comments
Information
American Journal of International Law , Volume 95 , Issue 1 , January 2001 , pp. 120 - 124
Copyright
Copyright © American Society of International Law 2001

References

1 See, e.g., Alvarez, José E., Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int’l L. 365 (1999)Google Scholar.

2 See, e.g., Sellers Bickley, Lynn, U. S. Resistance to the International Criminal Court: Is the Sword Mightier Than the Law? 14 Emory Int’l L. Rev. 213, 272–75 (2000)Google Scholar; Nadya Sadat, Leila & Richard Carden, S., The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 381, 385 (2000)Google Scholar.

3 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993); Statute of the 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, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

4 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court July 17,1998, UN Doc. A/CONF.183/9*, corrected Nov. 10, 1998, and July 12, 1999, obtainable from <http://www.un.org/law/icc/index.html>, reprinted in 37 ILM 999 (1998) (uncorrected version) [hereinafter ICC Statute]. See the Website supra for a current report on the status of ratifications and other information on the ICC.

5 ICC Statute, supra note 4, Art. 17.

6 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, annex, Aug. 8,1945,59 Stat. 1544, 82 UNTS 279; Protocol to Agreement and Charter, 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, as amended Apr. 26, 1946, 4 Bevans 27.

7 See Alvarez, supra note 1; Fisher, Ian, Crisis Points up Tough Choice for Tribunal on Rwanda, N.Y. Times, Dec. 19, 1999, §1, at 3 Google Scholar.

8 See, e.g., Nelan, Bruce W., Facing up to a Violent Past; Powerful Members of the Old Guard Are Indicted for a 1987 Massacre, Time, Dec. 11, 1995, at 63 Google Scholar.

9 Auto de Procesamiento 10.12.98 del Juez Garzón [Indictment Dec. 10, 1998, by Judge Garzón] may be found (in Spanish) at <http://puntofinal.cl/especial/jusdcia/justicia.html> (visited Nov. 14, 2000). For a summary in English, see Derechos, The Criminal Procedures against Chilean and Argentinian Repressors in Spain: A Short Summary <http://www.derechos.net/marga/papers/spain.html> (visited Nov. 24, 2000). The validity of the Spanish indictment was upheld in Audiencia nacional, div. crim., Nov. 4,1998, No. 19/97, & Nov. 5,1998, No. 1/98, summarized in 93 AJIL 690 (1999), obtainable from <http://www.derechos.org/nizkor/chile/juicio/>. For an unofficial English translation of Order No. 1/9 8 , see The Pinochet Papers: The Case of Augusto Pinochet In Spain and Britain 95 (Reed Brody & Michael Ratner eds., 2000).

By 1998, the Swiss government had also sent an extradition request to the United Kingdom (UK), and criminal proceedings had begun or were planned in national courts in Belgium, France, Italy, Luxembourg, and Sweden. See Brief Amicus Curiae submitted by Amnesty International—Panel of Judges of the House of Lords, para. 3, obtainable from <http://www.derechos.org/nizkor/chile/juicio/amicus.html>. Prosecutions initiated against Pinochet include Trib. gr. inst., Paris, orders of Nov. 21,1998 (Chanfreau), Nov. 12,1998 (Banquet & Klein), Dec. 10,1998 (Enrique Ropert Contreras & Père Jarlan), summarized in 93 AJIL at 696; Trib. 1st inst., Brussels (investigating magistrate), Nov. 8, 1998, summarized in 93 AJIL at 700. See also Regina v. Secretary of State for the Home Department, ex Parte Belgium; Regina v. Secretary of State for the Home Department, ex Parte Amnesty International Ltd., Nos. CO/236/2000, CO/238/2000 (Q.B., Feb. 15, 2000) (on challenges to the UK home secretary’s decision not to extradite Pinochet to Spain on the ground that he is unfit for trial and referencing other requests for extradition by France, Belgium, and Switzerland). English court decisions are available in LEXIS, Legal (excluding U.S.), United Kingdom, Case Law File. For the letters from the Home Office to the Spanish, Belgian, Swiss, and French Ambassadors announcing the termination of extradition proceedings (Mar. 2, 2000), see The Pinochet Papers, supra, at 465 (Spain), 477 (Belgium), 478 (Switzerland), 479 (France).

For the request for extradition from England to Spain, see Regina v. Bartle & Commissioner of Police, ex Parte Pinochet, [1998] 3W.L.R. 1456 (H.L.), reprinted in 37 ILM 1302 (1998), aff’d & rev’d in part, [1999] 2W.L.R. 827 (H.L.), reprinted in 38 ILM 581 (1999). Decisions of the UK House of Lords are available online at <http://www.parliament.the-stationeiy-office.co.uk/>.

10 See Chanfeau Orayce v. Chile, Cases 11.505etal.,Inter-Am.C.H.R.512,OEA/ser.L/V/II.98,doc.7rev. (1997), obtainable from <http://www.cidh.oas.org/annualrep/97eng/97ench3a43an.htm>; Clifford Krauss, Pinochet Ruled No Longer Immune from Prosecution, N.Y. Times, Aug. 9, 2000, at A3; Clifford Krauss, A New Drive Gathers Steam to Avert Trial for Pinochet, N.Y. Times, Aug. 12, 2000, at A6; Clifford Krauss, Judge Reinstates Pinochet Case with New Order for House Arrest, N.Y. Times, Jan. 30, 2001, at A3.

11 Ex-Chad Ruler Is Charged by Senegal with Torture, N.Y. Times, Feb. 4, 2000, at A3.

On Cambodia, see Identical Letters Dated 21 January 1999 from the Permanent Representative of Cambodia to die United Nations Addressed to the Secretary-General and die President of the Security Council, UN Doc. A/53/801-S/1999/67 (1999); Mydans, Seth, Of Top Khmer Rouge, Only One Awaits Judgment, N.Y. Times, Mar. 14, 1999, §1, at 6 Google Scholar; Becker, Elizabeth, U.N. Panel Wants International Trial for Khmer Rouge, N.Y. Times, Mar. 2, 1999, at Al Google Scholar. In UN Security Council Resolution 1315, the UN Secretary-General was requested to negotiate with the government of Sierra Leone to establish a special court for international crimes committed in that country. SC Res. 1315 (Aug. 14, 2000), obtainable from <http://www.un.org/documents>. The Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (Oct. 4, 2000), obtainable from id., is before the Security Council pursuant to Resolution 1315. See also Crossette, Barbara, Sierra Leone Will Be Site of Tribunal on Atrocities, N.Y. Times, Oct. 6, 2000, at A12 Google Scholar; Crossette, Barbara, U.N. to Establish a War Crimes Panel to Hear Sierra Leone Atrocity Cases, N.Y. Times, Aug. 15, 2000, at A6 Google Scholar.

Similar developments are taking place in East Timor. The High Commissioner of Human Rights of the Commission on Human Rights, in “Question of Violations of Human Rights and Fundamental Freedoms in Any Part of the World,” reported that the UN Transitional Administration in East Timor recommended a variety of options, all based on the establishment of domestic courts with jurisdiction over international crimes committed in East Timor. UN Doc. E/CN.4/2000/27, para. 25 (Mar. 29, 2000), Obtainable from <http:/www.unchr.ch>. This report also stated that nongovernmental organizations that were consulted recommended the establishment of an international tribunal for these crimes. Id., para. 30; see Inbaraj, Sonny, Rights—East Timor: Pressure for International Tribunal Grows, Inter Press Serv., Jan. 26, 2000, available in LEXIS, News, CurnwsGoogle Scholar.

Spain has requested the extradition from Mexico of a former Argentine official accused of international crimes in Argentina, including torture of Spanish citizens. See Weiner, Tim & Thompson, Ginger, Wide Net in Argentine Torture Case, N.Y. Times, Sept. 11, 2000, at A6 Google Scholar. Brazil is also revisiting the subject. See Rohter, Larry, Brazil Opens Files on Region’s Abuses in Age of Dictators, N.Y. Times, June 9, 2000, at A10 Google Scholar; Criminal Law and Procedure, UN L. Rep. , Aug. 2000, at 146-48.

12 See Goering, Laurie, Wariness of Arrest Abroad Keeps Many in S. America, Chicago Trib., Dec. 15, 1998, at 6 Google Scholar; Bosco, David, Dictators in the Dock, Am. Prospect, Aug. 14, 2000, at 26 Google Scholar, available in 2000 WL 4739376.

13 These documents and judgments are available online at the ICTY and ICTR Web sites <http://www.un.org/icty/index.html> and <http://www.ictr.org/>, respectively.

14 For ICC developments, see the Web site supra note 4. See also Keith Hall, Christopher, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, 94 AJIL 773 (2000)CrossRefGoogle Scholar.

15 See Heifer, Laurence R. & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 285–86 (1997)Google Scholar, and references therein.

16 This rationale closely follows the arguments made in support of subsidiarity within the context of the European Union. See, e.g., Bermann, George A., Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331 (1994)CrossRefGoogle Scholar.

17 See Crossette, Barbara, U.S. Resists War-Crimes Court as Canada Conforms, N.Y. Times, July 22, 2000, at A4 Google Scholar; Crossette, Barbara, U.S. Gains a Compromise on War Crimes Tribunal: Keeps Role as It Tries to Exempt Americans, N.Y. Times, June 30, 2000, at A6 Google Scholar.

18 ICC Statute, supra note 4, Art. 12; see Charney, Jonathan I., Progress in International Criminal Law? 93 AJIL 452, 456 n. 29 (1999)Google Scholar.

19 See Kadafi Says He Won’t Turn over Bomb Suspects, L.A. Times, Nov. 29, 1991, at A40.

20 See Faul, Michelle, Minister Says Libya Will Try Accused Agents, AP’, Dec. 8, 1991 Google Scholar, available in 1991 WL 6218354.

21 For example, the Security Council released the following statement on the subject:

By its resolution 731 [1992], the Council demanded immediate compliance by Libya to the requests made to it by France, the United Kingdom and the United States to cooperate fully in establishing responsibility for the terrorist acts against the two airliners. Acting under Chapter VII of the Charter, the Council by resolutions 748 [1992] and 883 [1992] repeated those demands. Resolution 883 [1993] also required Libya to ensure that the two accused in the bombing of Pan Am flight 103 appeared for trial in the appropriate United Kingdom or United States court.

Security Council Welcomes Joint United Kingdom/United States Initiative, Netherlands Willingness, to Try Libyan Airline Bombing Suspects, SC Press Release SC/6566 (Aug. 27, 1998), obtainable from <http://www.un.org>; see also Paul Lewis, U.N. Urged to Press Libya on Suspects in 2 Bombings, N.Y. Times, Jan. 11, 1992, at A3 (stating that the United States and Britain argued that “the Libyan government cannot be expected to prosecute vigorously the agents it ordered to carry out the deed”); U.S. Offtcial Rules out Mediation over Lockerbie, Agence France-Presse, Dec. 15,1991, available in 1991 WL 3240146; Japan Urges Libya to Cooperate over 1988 Lockerbie Bombing, Agence France-Presse, Dec. 21,1991, available in 1991 WL 3242316; British Justice Renews Demand for Libya to Hand over Lockerbie Suspects, Agence France-Presse, Dec. 13, 1991, available in WL 3239519.

22 See Binyon, Michael, Libyan Parliament Backs Trial Deal, Times (London), Dec. 16,1998 Google Scholar; Libya Agrees to Deliver 2 Lockerbie Suspects; Gadhafi Seems Willing to Accept All Conditions, Chicago Trib., Mar. 21, 1999, at C6.