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In June 2015, President Omar Hassan Ahmad Al Bashir of Sudan attended a meeting of the African Union (AU) in Johannesburg, South Africa, despite the fact that a warrant had been issued for his arrest by the International Criminal Court (ICC) for the commission of war crimes, crimes against humanity, and genocide in the Darfur region. Although South Africa, a party to the ICC, was obliged to arrest Al Bashir and surrender him to the ICC under the terms of the Rome Statute of the ICC, the South African government made no attempt to apprehend him. On the application of a South African public interest law firm, the North Gauteng High Court ordered that the government was required by law to arrest and detain Al Bashir. Al Bashir was, however, allowed to leave South Africa.
This is the third volume in the International Criminal Law Practitioner Library Series. Volumes I and II dealt with substantive international criminal law, particularly forms of individual criminal responsibility and the core crimes of genocide, crimes against humanity and war crimes. The present volume is devoted to international criminal procedure, the most controversial and most important aspect of international criminal law.
While substantive international criminal law is accepted as a branch of international law, doubts have been raised as to whether there is a body of law that can legitimately be called international criminal procedure. In large measure these doubts arise from the fact that international criminal procedure embraces both the accusatorial system of the common law and the inquisitorial system of the civil law. The argument is made that it lacks coherence and certainty because these two systems are as yet still engaged in a struggle for supremacy. The present careful and comprehensive study of the rules and principles of international criminal procedure refutes this argument and shows convincingly that international criminal procedure is a sui generis system, with a common foundational source – international human rights law and the basic norm of the right to a fair trial.
The authors accept that different international criminal courts are governed by different rules under their different founding Statutes. Indeed, much of the study is dedicated to comparing and contrasting these differences.
Lorsque la Déclaration universelle des droits de l'homme a été adoptée, en 1948, les droits de l'homme et le droit international humanitaire ont été traités comme des domaines séparés. La situation a radicalement changé depuis la Conférence internationale des droits de l'homme (qui s'est tenue à Téhéran en 1968), et les deux sujets sont désormais considérés comme des branches différentes d'une même discipline. Divers facteurs ont contribué à cette fusion, dont l'importance croissante du droit international pénal et le fait d'ériger en crime des violations graves des droits de l'homme. C'est là le thème du présent article.
Any study of the role of domestic courts in the enforcement of treaties in a particular state is built on the assumption that the state in question is an active member of the international community, with courts aware of the state's international treaty obligations. Such an assumption is certainly true of present-day South Africa, but it was not always so. From 1948 to 1994, while the country pursued the policy of apartheid, South Africa was an isolated pariah state with few treaties and courts largely unconcerned about the country's international obligations. Although South Africa was a party to the Charter of the United Nations – which was not incorporated into domestic law – it refused to become a party to many multilateral treaties, particularly in the fields of African organization, human rights, and humanitarian law. Bilateral treaties were entered into, but even here difficulties were encountered. For instance, most states outside of southern Africa declined to enter into extradition agreements with South Africa or terminated existing agreements. Both the all-white executive and all-white legislature were positively hostile to the international community as it sought to persuade, and later compel, South Africa to abandon apartheid. The courts were likewise unsympathetic to arguments premised on customary international law or treaty obligations. For instance, the South African Appellate Division refused to be guided by the human rights clauses in the UN Charter in its interpretation of the reasonableness of racial discrimination.
International criminal law is a new branch of law, with one foot in international law and the other in criminal law. Until the Nuremberg trial, international criminal law was largely ‘horizontal’ in its operation – that is, it consisted mainly of co-operation between states in the suppression of national crime. Extradition was therefore the central feature of international criminal law. Of course there were international crimes, crimes that threatened the international order, such as piracy and slave trading, but with no international court to prosecute such crimes, they inevitably played an insignificant part in international criminal law. In 1937 came the first attempt to create an international criminal court, for terrorism, but the treaty adopted for this purpose never came into force. The Nuremberg and Tokyo trials mark the commencement of modern international criminal law – that is, the prosecution of individuals for crimes against the international order before international courts. The Nuremberg and Tokyo tribunals have been criticised for providing victors' justice, but they did succeed in developing a jurisprudence for the prosecution of international crimes that courts still invoke today. The Cold War brought this development to an end. Attempts to create a permanent international criminal court failed and it was left to academics to debate and dream about the creation of such a court for the next forty years.
All this changed with the end of the Cold War and the creation of ad hoc tribunals for the former Yugoslavia and Rwanda.
In the past fifty years there have been changes in relation to the nature and sources of international law. Academic lawyers have welcomed these changes, which show a movement away from strict consent as the basis of international law. States and government law advisers have adopted a more conservative approach and emphasize the importance of consent as a basis for international law. Different approaches are apparent in the practice of the Human Rights Council. The Council has focused on the Occupied Palestinian Territory, much to the annoyance of Western states. The developing world sees the Occupied Palestinian Territory in much the same way as the United Nations saw apartheid in South Africa. The International Court of Justice has responded wisely to both these phenomena. It has given cautious approval to new notions of international law, encapsulated in the doctrines of obligations erga omnes and jus cogens. On the subject of Palestine the Court has given an Advisory Opinion which should form the basis for a peaceful settlement of the conflict in the Middle East. Unfortunately the international community has failed to give effect to this opinion.
John Dugard, Professor University of Leiden; Member International Law Commission; Member Institut de Droit international,
David Raič, Deputy Director and Senior Programme Coordinator Hague Institute for the Internationalisation of Law
Recognition and secession are closely associated. Recognition has provided the imprimatur of statehood to seceding entities for over two hundred years. Early secessions were, however, generally portrayed as assertions of independence from colonial empires or unions rather than as secessions. As international law until recent times did not exalt respect for existing boundaries into a well-nigh absolute rule, secessions were anticipated, if not approved, as a natural consequence of decolonisation and the restructuring of States to correspond to historical realities and ethnic needs. Recognition served as the instrument for the validation of claims to statehood on the part of new entities by existing member States of the community of nations. In exercising their discretion to grant or withhold recognition, States were concerned with the requirements of effective government, independence, absence of control by another State and the ability on the part of the claimant State to conduct foreign affairs with existing States, and not with the question whether the emergence of a new State violated the territorial integrity of the State from which it sought to secede. The main prohibition on recognition was to be found in the rule against premature recognition. This probably explains why neither of the leading English-language treatises on recognition – Hersch Lauterpacht's Recognition in International Law (1947) and Ti-Chian Chen's The International Law of Recognition (1951) – treats secession as a topic worthy of separate attention in the context of recognition.
The position has changed radically since the end of decolonisation.
South Africa, Namibia and Zimbabwe occupy a special place in the history of United Nations action to promote human rights. The perpetuation of white minority rule in these territories in a world order committed to decolonisation, self-determination and majority rule provoked a concerted response from the United Nations, which included economic sanctions and the toleration of military support to national liberation movements. United Nations action against Southern Rhodesia (as it then was) was premised on the denial of self-determination and the perpetuation of minority rule. The international status of South West Africa/Namibia and the failure of South Africa to honour the obligations contained in the Mandate for South West Africa provided the basis for United Nations action against South Africa. In South Africa itself racial discrimination, political repression, military intervention in neighbouring states and minority rule combined to justify United Nations intervention. But in all three cases there was a serious denial of human rights and most of the resolutions adopted by the General Assembly and the Security Council on these three territories castigated the government or the administering authority for its denial of human rights to the majority of the people. The action of the United Nations in the Southern African region can therefore legitimately be characterised as action taken to promote human rights.
It is not surprising that when change came to these territories the national liberation movements involved in the negotiations that led to the establishment of new political orders should insist on constitutions that provided guarantees for human rights.
From time immemorial amnesty has been employed as a means of promoting a political settlement and advancing reconciliation in societies that have emerged from repression. At present there is a trend in support of prosecution of those who have committed international crimes, such as torture and crimes against humanity, which excludes the possibility of amnesty. That amnesty is no longer favored is illustrated by the failure of the Rome Statute of the International Criminal Court to recognize amnesty as a defence to prosecution. While there is no place for unconditional amnesty in the contemporary international legal order an intermediate solution such as a Truth and Reconciliation Commission with power to grant amnesty after investigation, of the South African kind, may contribute to the achievement of peace and justice in a society in transition more effectively than mandatory prosecution.
Since its establishment in 1995, the South African Truth and Reconciliation Commission has captured the attention of an international community preoccupied with the problem of dealing with crimes of the past in divided societies. While the creation of a permanent international criminal court to punish those guilty of atrocities constituting international crimes has been the first priority, the international community has, albeit grudgingly, accepted that there may be circumstances in which amnesty and reconciliation hold out more hope for troubled societies than punishment. This realisation has led to the search for an acceptable alternative to punishment that does not result in absolute amnesty for those guilty of gross human rights abuses. The South African model, of conditional amnesty accompanied by the uncovering of the past, appears to offer such an alternative. This factor, together with the relief over the fact that apartheid has at last been laid to rest, accounts for the interest shown in the South African experience.
The present note will not attempt to describe and analyse the South African precedent in detail. Instead it will provide an overview of the history, establishment and work of the South African Truth and Reconciliation Commission (TRC); examine the significance of the Report of the TRC for international humanitarian law; and consider the status of amnesty under contemporary international law in the context of the South African experience.
In 1948, when the Universal Declaration of Human Rights was adopted, human rights and humanitarian law were treated as separate fields. Since the 1968 Tehran International Conference on Human Rights, the situation has changed dramatically and the two subjects are now considered as different branches of the same discipline. A number of factors have contributed to this merger, including the growing significance of international criminal law and the criminalization of serious violations of human rights. This is the theme of the present comment.
En 1948, cuando se aprobó la Declaración Universal de Derechos Humanos, se consideraba que los derechos humanos y el derecho humanitario eran campos separados. Desde la Conferencia Internacional de Derechos Humanos celebrada en Teherán el año 1968, la situación ha cambiado drásticamente y ahora se considera que los dos ámbitos son ramas distintas de la misma disciplina. Son varios los factores que han contribuido a esta confluencia, entre los que se cuentan la importancia creciente del derecho penal internacional y la incriminación de las violaciones graves de los derechos humanos. Ése es el tema del presente artículo.
The human rights movement, which has had such a powerful impact on international law and relations in the post—World War II period, has in recent years turned its attention to extradition. Treaties, executive acts and judicial decisions on extradition have all been affected. At the same time, transnational and international crime has increased. The international community has responded by creating new institutions and expanding the network of bilateral and multilateral treaties designed to outlaw transnational crime, promote extradition, and authorize mutual assistance. Inevitably, there is a tension between the claim for the inclusion of human rights in the extradition process and the demand for more effective international cooperation in the suppression of crime, which resembles the tension in many national legal systems between the “law and order” and human rights approaches to criminal justice. As in domestic society, it is necessary to strike a balance between the two so as to establish a system in which crime is suppressed and human rights are respected. This was stressed by the European Court of Human Rights in the leading case on extradition and human rights, Soering v. United Kingdom, when it stated:
[I]nherent in the whole of the [European] Convention [on Human Rights] is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.