Arresting impunity: The case for universal jurisdiction in bringing war criminals to accountability

Law and Contemporary Problems

Volumn 59, Issue 4, 1996, Pages 153-171

  Joyner, Christopher C ^a  

^a GEORGETOWN UNIVERSITY   (United States)

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EID: 0346295473     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: 10.2307/1192196     Document Type: Article

References (68)

1. Throughout this analysis, the term "war crimes" denotes not only the violations of the laws and customs of war, but also "crimes against the peace, crimes against humanity, and genocide as those concepts have been defined since the end of the Second World War." See 2 L. OPPENHEIM, INTERNATIONAL LAW §§ 252-53 (9th ed. 1993 );
2. Charter of the International Military Tribunal, art. VI, 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 U.N.T.S. 279; see also Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, 78 U.N.T.S. 277 (defining genocide as killing and other acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group"); Quincy Wright, War Criminals, 39 AM. J. INT'L L. 257, 261 (1945).
3. See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted Nov. 26, 1968, preamble, 754 U.N.T.S. 73, 74-75 (entered into force Nov. 11, 1970), reprinted in 8 I.L.M. 68 (1969).
4. See Report of the Special Rapporteur to the Commission on Human Rights of 28 August 1992, U.N. ESCOR, 1st Spec. Sess., Agenda Item 3, U.N. Doc. E/CN.4/1992/S-1/9 (1992); Report of the Special Rapporteur to the Commission on Human Rights of 27 October 1992, U.N. ESCOR, 1st Spec. Sess., Agenda Item 3, U.N. Doc. ECN.4/1992/S-1/10 (1992); Report of the Special Rapporteur to the Commission of Human Rights to the Forty Seventh Session of the General Assembly of 17 November 1992, U.N. GAOR, 47th Sess., Annex, Agenda Item 97(C), U.N. SCOR, 47th Sess., Annex, U.N. Doc. A/47/666-S/24809 (1992); Report of the Special Rapporteur to the Commission on Human Rights, U.N. ESCOR, 49th Sess., Agenda Item 27, U.N. Doc. E/CN.4/1993/50 (1993).
5. See S.C. Res. 780, U.N. SCOR, 47th Sess., 3119th mtg., at 1, U.N. Doc. S/RES/780 (1992). On the work of the Commission, see M. Cherif Bassiouni, The Commission of Experts Established pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia (Occasional Paper #2, 1996, International Human Rights Law Institute, DePaul University).
6. See S.C. Res. 808, U.N. SCOR, 48th Sess., 3175 mtg., at 1, U.N. Doc. S/RES/808 (1993).
7. Statute of the International Tribunal, S.C Res. 827, U.N. SCOR 48th Sess., 3217 mtg., at 1, U.N. Doc. S/RES/827 (1993).
8. 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: Rules of Procedure and Evidence, U.N. Doc. IT/32, adopted Feb. 11, 1994 (entered into force Mar. 14, 1994), reprinted in 33 I.L.M. 484 (1994).
9. On October 6, 1997, ten Bosnian Croats indicted on charges of war crimes surrendered to the ICTFY, presumably because they believed that financial and personnel resources available to the Tribunal were insufficient for an effective prosecution. See Lee Hockstader, 10 Croats Surrender to War Crimes Tribunal, WASH. POST, Oct. 7, 1997, at A11, col.1. Of the 75 persons indicted, one has been prosecuted, one pled guilty, five are on trial, and twelve are being held in custody awaiting trial.
10. See Lee Hockstader, WASH. POST, id. On July 10, 1997, British commandos in Bosnia seized one fugitive and shot a second to death when he forcibly resisted arrest.
11. See Stacy Sullivan, War Crimes: Bosnia's Most Wanted, NEWSWEEK, July 21, 1997, at 41.
12. See Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, supra note 1; see also 13 Dep't of State Bull. at 222 (1945). For treatment of the relevance of the Nuremberg Court for the International Tribunal for war crimes in Bosnia, see Christopher C. Joyner, Enforcing Human Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal, 22 DENVER J. INT'L L. & POL'Y 235, 237-55 (1994).
13. Key among the Nuremberg Charter's central provisions was its Article VI, which defined the jurisdiction of the court in these terms: The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against the Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but shall not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity; (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are respon-sible for all acts performed by any persons in execution of such plan .... Charter of the International Military Tribunal, supra note 1, art. VI.
14. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. No. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter 1949 Geneva Conventions].
15. As defined in the four 1949 Geneva Conventions, certain "grave breaches" are crimes committed against persons or property protected by the conventions and include: (i) Willful killing, torture or inhuman treatment of protected persons; (ii) Willfully causing great suffering or serious injury to body or health of protected persons; (iii) Taking of hostages and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; (iv) Unlawful deportation or transfer or unlawful confinement of a protected person; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; and, (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial prescribed in the Geneva Conventions. 1949 Geneva Conventions, supra note 11, common arts. 50/51/130/147, respectively.
16. See id. common art. 3.
17. 14. Report of the Secretary General pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, 48th Sess., Annex at 36, U.N. Doc. S/25704 (1993); Statute of the International Tribunal, supra note 6, art. 2. Compare the language cited in common articles 50/51/130/147 of the four 1949 Geneva Conventions in note 11, supra. 15. Statute of the International Tribunal, supra note 6, art. 3; see Convention Between the United States and Other Powers Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex, 36 Stat. 2277, 2295, especially arts. 23, 25, 27, and 28 [hereinafter Hague Convention IV].
18. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). The crime of genocide is conceptually derivative of the crimes against humanity prosecuted by the International Military Tribunal at Nuremberg and the War Crimes Court for the Yugoslavia. The General Assembly resolution, adopted unanimously on December 11, 1946, affirmed the "principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal." Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95, U.N. GAOR, U.N. Doc. A/64/Add Sess. 1, pt. 2, 55th Plen. Mtg. at 188 (1946).
19. Statute of the International Tribunal, supra note 6, at 37, art. 4, ¶ 2.
20. Id. at 37-38, art. 4, ¶ 3. It is noteworthy that these paragraphs in Article 4 of the Tribunal's Statute were transposed verbatim from Articles II and III, respectively, of the 1948 Genocide Convention.
21. See generally Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), reproduced as Annex to Letter Dated May 24, 1994 from the Secretary-General to the President of the Security Council, U.K. SCOR, 49th Sess., Annex at 3, U.N. Doc. S/1994/674 (27 May 1994).
22. See Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, supra note 16, at 188.
23. See The Crime of Genocide, G.A. Res. 96, U.N. GAOR, U.N. Doc. A/64, Sess. 1, pt. 2, 55th Plen. Mtg. at 188 (1946).
24. This is provided for in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, supra note 2. See generally M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 508-10 (1992).
25. See Nuremberg Charter, art. VI, ¶ (c), reprinted in note 10, supra. 24. See Statute of the International Tribunal, supra note 6, at 38, art. 5.
26. See id.
27. See supra note 10.
28. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., 93d Plen. Mtg., Supp. (No. 51) at 197 (entered into force June 28, 1987).
29. See Final Report of the Commission of Experts, supra note 19, at 55-60. In late 1992/early 1993, the European Community sent a special mission headed by Dame Ann Warburton to investigate the treatment of Muslim women in the former Yugoslavia. This mission found that the number of women raped might range from 10,000-60,000, and that rape was used by the Serbs as a premeditated strategy to terrorize Muslim populations and to force them to leave their homes. See European Community Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia: Report to European Community Foreign Ministers, U.N. SCOR, 48th Sess., U.N. Doc. S/25240 (3 Feb. 1993), Annex I, at 2; M. Cherif Bassiouni, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia (Occasional Paper #1, 1996, International Human Rights Law Institute, DePaul University).
30. See Nuremberg Charter, Art. VI, ¶ (a), reprinted in note 10, supra.
31. Statute of the International Tribunal, supra note 6, at 38, art. 7, ¶ 1.
32. Id. ¶¶ 2 & 3.
33. Obviously, a government may systematically direct its soldiers to commit war crimes, but such a government would be termed irresponsible in this framework.
34. See Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 CALIF. L. REV. 177, 194 (1945).
35. See id.
36. See H. W. HALLECK, INTERNATIONAL LAW 386-87 (1861).
37. See Michael Akehurst, Jurisdiction in International Law, 46 BRIT. Y.B. INT'L L. 145 (1972/73).
38. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, pt. IV (Jurisdiction and Judgments) introductory note (1987) [hereinafter RESTATEMENT (THIRD)].
39. See id. § 401; see also OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 244-49 (1985).
40. See RESTATEMENT (THIRD), supra note 37, §§ 401-403.
41. See Edwin D. Dickinson, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 435, 443-47 (Supp. 1935) (work conducted for Harvard Research in International Law).
42. The First Circuit Court of Appeals put it well when it posited that "a state does not have jurisdiction to enforce a rule of law enacted by it unless it has jurisdiction to prescribe the conduct in question." United States v. Smith, 680 F. 2d 255, 257 (1st Cir. 1982) (citing Rivard v. United States, 375 F.2d 882, 885 (5th Cir. 1967)).
43. The territorial principle determines jurisdiction according to location of the crime. A state may punish crimes committed within its territory. Of all jurisdictional principles for extradition, the territorial principle remains most universally accepted. The territorial principle has been further refined into subjective and objective territorial views. See Dickinson, supra note 40, at 484-508; Christopher L. Blakesley, United States Extradition Over Extraterritorial Crime, 73 J. CRIM. L. & CRIMINOLOGY 1109, 1118-19, 1123 (1982). Subjective territorial jurisdiction is used to justify legislation punishing criminal conduct that commences within a state and is completed abroad. A state retains the right to punish the perpetrator of a crime that terminates elsewhere when the intent to commit that crime was formulated within that state. The subjective variety, then, would extend jurisdiction over offenses committed outside a state's borders, albeit an essential element of the crime must have occurred within that state itself. See, e.g., People v. Botkin, 132 Cal. 231, 64 P. 286 (1901) (granting jurisdiction over a California defendant who mailed poisonous candy to a Delaware recipient who died after eating the candy.) The objective territorial view, on the other hand, includes offenses that commence outside a state's territory, but are completed within it. Also known as the "effects doctrine," objective territorial jurisdiction may also be justified when certain crimes generate serious repercussions, or "effects," within the state. See, e.g., S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10 (Sept. 7, 1927) (characterizing the death of Turkish nationals on the high seas as having repercussions upon Turkey); see also United States v. King, 552 F. 2d. 833, 851-52 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977) (prosecuting a defendant for unlawful distribution in Japan of heroin that was intended for importation into the United States).
44. The nationality principle, which is universally accepted, allows a state to prescribe laws that bind its nationals, regardless of where the national is or where the offense occurs. A state's jurisdiction effectively extends to its citizens and actions they take beyond the territorial jurisdiction of the state. The link between a state and its nationals generates reciprocal rights and obligations. The state is expected to protect its citizens when they are abroad, but when an individual's conduct harms the interests of his or her state, that state may punish that conduct regardless of where it occurred. In sum, the link between an individual and the state is a personal one, irrespective of location. As the U.S. Supreme Court observed in Blackmer v. United States, "[j]urisdiction of the United States over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them." 284 U.S. 421, 438 (1932).
45. The protective principle concerns acts abroad that are deemed prejudicial to the security interests of a state. Under the protective principle, a state may exercise jurisdiction over certain acts that take place outside its territory, if such acts threaten the security, territorial integrity, or political independence of the state. Importantly, the protective principle permits states to prosecute nationals of other states for their conduct outside the offended state. See, e.g., United States v. Pizzarusso, 388 F.2d 8 (2d Cir. 1968) (holding that false statements on an immigration visa before a U.S. consul in Canada had a sufficiently adverse impact on U.S. interests to warrant exercising jurisdiction over the defendant).
46. The passive personality principle gives a state extraterritorial jurisdiction over offenses committed against its nationals wherever the crime takes place. That is, acts committed by an alien against nationals of a state abroad accord that state jurisdiction in the matter. Jurisdiction therefore becomes based on the nationality of the victim of a crime. The passive personality principle has not been widely used, largely because it is controversial and often conflicts with the territorial principle. The passive personality notion implies that persons carry the protection of their state's law with them beyond the territorial jurisdiction of their own state. This assertion challenges the fundamental premise of sovereign jurisdiction of a state over its own territory, which obviously undercuts the fundamental principle of territorial sovereignty. See., e.g., United States v. Benitez, 741 F.2d. 1312 (11th Cir. 1984) (convicting a foreign defendant national in a U.S. court for conspiracy to murder, assault, and rob U.S. Drug Enforcement Agents in Columbia); see also United States v. Marino-Garcia, 679 F.2d. 1373, 1381 (11th Cir. 1972) (holding passive personality allowed jurisdiction over persons or vessels that injure the citizens of another country).
47. As the Third Restatement concludes, [a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in § 402 is present. RESTATEMENT (THIRD), supra note 37, § 404.
48. See generally Kenneth C. Randall, Universal Jurisdiction under International Law, 66 TEXAS L. REV. 785 (1988).
49. Piracy is the oldest offense to invoke universal jurisdiction. Piratical acts were made subject to universal jurisdiction not only because those acts occurred on the high seas, beyond the limits of national jurisdiction, but more so because they were considered particularly heinous and wicked acts of violence and depredation committed indiscriminately against vessels and nationals of any state. See Joseph W. Bingham, Draft Convention and Comment on Piracy, 26 AM. J. INT'L L. 739, 743 (Supp. 1932) (work conducted for Harvard Research on International Law);
50. Bonnet's Trial, 15 STATE TRIALS (Howell) 1231, 1235 (Am. Vice Adm. 1718).
51. See generally B.H. DUBNER, THE LAW OF INTERNATIONAL SEA PIRACY (1980);
52. ALFRED P. RUBIN, THE LAW OF PIRACY (1988). The most recent international codification of the law of the sea outlaws piracy on the high seas and prescribes universal jurisdiction as an appropriate means of apprehending the offenders. See 1982 United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF. 62/L2 (entered into force Nov. 16, 1994), in The Law of the Sea, U.N. Sales No. E. 83.V.5 (1983), arts. 103-107, especially 105 (providing that "every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and size the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed").
53. Slavery and the trading of slaves violate the fundamental rights of persons to individual liberty and freedom and are therefore considered to be offenses against all humankind. As such, slavery has been formally prohibited in a number of international instruments. See Slavery Convention, done Sept. 25, 1926, 46 Stat. 2183, T.S. No. 778, 60 L.N.T.S. 253; Protocol Amending the Slavery Convention, done Dec. 7, 1953, 7 U.S.T. 479., T.I.A.S. No. 3532, 182 U.N.T.S. 51; Supplementary Convention of the Abolition of Slavery, the Slave Trade and Institutions and Practices Similarly to Slavery, done Sept. 7, 1956, 18 U.S.T. 3201, T.I.A.S. No. 6418, 266 U.N.T.S. 3. For discussion, see M. Cherif Bassiouni & Ved Nanda, Slavery and Slave Trade: Steps Towards Its Eradication, 12 SANTA CLARA LAW. 424 (1972). The slave trade is also outlawed and made prosecutable by universal jurisdiction in the 1982 United Nations Convention on the Law of the Sea, supra note 48, art. 110.
54. Willard Cowles argues convincingly that war crimes have their origins in the law evolving from brigandage. As a group, he observes, brigands form a loose, self-constitutive armed organization[s], for the primary purposes of protecting [themselves] from law enforcement agencies, and obtaining loot by armed violence.... The resulting association is a small, loose, degenerate society, the members having little or no sense of allegiance to any State.... Acts of violence are the natural consequence of such a situation.... Discipline is usually unenforced, especially during raids, and heinous crimes of robbery and lust are correctly associated with them. They commit murder and arson, and destroy property on an extensive scale for the sheer sake of destruction. They capture persons for purposes of ransom, and they do not hesitate to kill their captives as object lessons to pecunious relatives, friends, or governments. Cowles, supra note 33, at 184.
55. 11 TRIALS OF WAR CRIMINALS 1241 (1946-1949) (emphasis added).
56. On November 21, 1947, the United Nations General Assembly adopted Resolution 177 (II), which affirmed "the principles of international law recognized by the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." As subsequently formulated by the U.N. International Law Commission, the text of these principles are as follows: Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Principle II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III. The fact that a person who committed an act which constitutes a crime under international law acted as a Head of State or responsible Government official does not relieve him from responsibility under international law. Principle IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V. Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI. The crimes hereinafter set out are punishable as crimes under international law: [crimes against peace, war crimes and crimes against humanity are thereafter defined substantially as they appear in Article 6 of the Charter of the International Military Tribunal at Nuremberg]. Principle VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. Report of the International Law Commission Covering its Second Session, GAOR, 5th Sess. Supp. (No. 12) U.N. Doc. A/1316, Pt III, at 11-14 (1950).
57. This clearly was the legal rationale taken by Israel in the Eichmann Case, involving the kidnaping from Argentina and trial in Israel of Hitler's chief executioner of the final solution. See Attorney General of Israel v. Eichmann, 36 Int'l L. Rep. 277 (Sup. Ct. Israel 1962).
58. See Randall, supra note 47, at 829-31.
59. For a useful discussion of erga omnes, see SCHACHTER, supra note 38, at 195-201.
60. S.Z. Feller, Jurisdiction over Offenses with a Foreign Element, in 2 A TREATISE ON INTERNATIONAL CRIMINAL LAW 5, 32-33 (M. Cherif Bassiouni & Ved Nanda eds., 1973).
61. See id.
62. See ROBERT L. BLEDSOE & BOLESLAW A. BOCZEK, THE INTERNATIONAL LAW DICTIONARY 15-16 (1987).
63. See CHRISTOS L. ROZAKIS, THE CONCEPT OF JUS COGENS IN THE LAW OF TREATIES (1976);
64. IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 110-43 (1973);
65. N.G. Onuf & Richard K. Birney, Peremptory Norms of International Law: Their Source, Function and Future, 4 DENVER J. INT'L L. & POL'Y 187 (1974).
66. See SCHACHTER, supra note 38, at 195-201.
67. See id. at 262; M. Cherif Bassiouni, Theories of Jurisdiction and Their Application in Extradition Law and Practice, 5 CAL. W. INT'L L. J. 1, 54-55 (1974).
68. See J.L. Brierly, The Nature of War Crimes Jurisdiction, THE NORSEMAN No. 3 (May-June 1944), at 2.