Checks and Balances and Elements of Proof: Structural Pillars for the International Criminal Court

Cornell International Law Journal

Volumn 32, Issue 3, 1998, Pages 477-487

  Lietzau, William K ^a,b,c,d,e  

^a UNITED STATES NAVAL ACADEMY   (United States)

^b YALE UNIVERSITY   (United States)

^c U S ARMY   (United States)

^d Navy Marine Trial Judiciary ^*

^e GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0346308892     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (47)

1. Rome Statute of the International Criminal Court, U.N. GAOR, 53d Sess., U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 ILM 999 (1998) [hereinafter ICC Statute]. The final form of the Statute contains technical modifications to the original text adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome, Italy, June 15-July 17, 1998 [hereinafter Diplomatic Conference].
2. The first panel was entitled "Acquisition of Jurisdiction: Triggering Mechanisms & Crimes."
3. Anyone who has stood before a judge as a criminal defense lawyer is well aware that, to a criminal defendant, Rules of Evidence and Procedure may be technical, but are certainly not trivial. Likewise, the Elements of Crimes may seem mundane to the casual observer, but they are critical in the eyes of the accused. For the parties standing before the Court, jurisdictional issues (which are of particular concern to States) pale in comparison to the facts of their case and how these facts will be adduced.
4. The PrepCom was established in the Final Act of the Diplomatic Conference. Paragraphs 5 and 6 of Resolution F of the Final Act require the PrepCom to draft Rules of Procedure and Evidence and Elements of Crimes before June 30, 2000. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. GAOR, 53d Sess., Annex 1, Res. F, para. 5-6, U.N. Doc. A/CONF.183/10 (1998) [hereinafter Resolution F]. Other PrepCom duties include drafting the following: a relationship agreement between the Court and the United Nations; basic principles governing a headquarters agreement to be negotiated between the Court and the host country; financial rules and regulations; an agreement articulating the privileges and immunities of the Court; a budget for the first financial year; and rules of procedure for the Assembly of States Parties. Philippe Kirsch, Chairman of the PrepCom, has scheduled open working group negotiating sessions solely for Elements of Crimes and Rules of Evidence and Procedure. Other issues are being handled informally by designated "friends of the Chair." The PrepCom met February 16-26 and July 26-August 13, 1999; a third meeting is scheduled for November 29-December 17, 1999. See Establishment of an International Criminal Court, G.A. Res. 53/105, U.N. GAOR, 53d Sess., at 2, U.N. Doc. A/RES/53/105 (1999).
5. See Philippe Kirsch, Keynote Address, 32 CORNELL INT'L L.J. 437 (1999).
6. For example, the vast majority of the Court's proponents viewed the U.S. proposal to establish the Elements of Crimes as an unnecessary restraint, if not an outright threat to progressive judicial activism. The proposal actually aimed to give teeth to the fundamental legal principle of nullum crimen sine lege. See ICC Statute, supra note 1, art. 22 (Nullum crimen sine lege) (requiring that crime definitions be "strictly construed"). More specifically, the U.S. proposal for Elements was designed to (1) be faithful to customary international law, (2) strike an appropriate balance in accommodating concerns expressed by interested states, and (3) interpret general international law norms with the specificity and rigor appropriate for criminal law.
7. For example, the United States has forcefully criticized the ICC Statute's assertion of jurisdiction over non-party nationals. This jurisdictional assertion is the most controversial characteristic of the ICC Statute, since the international community lacks clearly relevant historical precedents regarding analogous jurisdictional regimes. For a discussion of the U.S. position regarding ICC jurisdiction, see Michael F. Lohr & William K. Lietzau, One Road Away from Rome: Concerns Regarding the International Criminal Court, J. LEGAL STUD. (forthcoming 1999). See also David J. Scheffer, U.S. Policy and the International Criminal Court, 32 CORNELL INT'L L.J. 529 (1999).
8. For example, the United States has forcefully criticized the ICC Statute's assertion of jurisdiction over non-party nationals. This jurisdictional assertion is the most controversial characteristic of the ICC Statute, since the international community lacks clearly relevant historical precedents regarding analogous jurisdictional regimes. For a discussion of the U.S. position regarding ICC jurisdiction, see Michael F. Lohr & William K. Lietzau, One Road Away from Rome: Concerns Regarding the International Criminal Court, J. LEGAL STUD. (forthcoming 1999). See also David J. Scheffer, U.S. Policy and the International Criminal Court, 32 CORNELL INT'L L.J. 529 (1999).
9. National jurisdictions provide protections that ensure trials are just and fair, and safeguards that mandate adequate notice and preclude inappropriate judicial legislation. Consider, e.g., jurisprudence surrounding constitutional protections against ex post facto laws and forced self-incrimination.
10. The United States recognized the importance of developing Elements and Rules of Evidence and Procedure early in the negotiating process. Prior to the Rome Diplomatic Conference, the U.S. delegation identified those ICC issues having the greatest potential to affect U.S. interests. The Court's jurisdictional mechanism was usually identified as the leading issue, followed by the list of crimes subject to the Court's jurisdiction and their elements, and then by Rules of Evidence and Procedure. It is interesting to note that the Joint Chiefs of Staff, when briefed on various ICC issues, quickly recognized the importance of Elements of Crimes and Rules of Evidence and Procedure. Most generals and admirals have convened courts-martials, referred criminal matters to trial, and signed orders executing court judgments. Therefore, military leaders tend to be more familiar with criminal legal matters than most policy-makers. In contrast, most of the delegates at Rome were international lawyers (especially human rights lawyers) rather than experienced criminal litigators.
11. See, e.g., ICC Statute, supra note 1, arts. 22-33, 53-61, 63-76, and 81-85 (discussing various rights of the accused and trial issues frequently found in rules of procedure and evidence).
12. For example, while certain important initiatives (particularly in the area of victim's rights) are being furthered as these rules are drafted, no one is demanding evisceration of the right to remain silent or the right to cross examine witnesses.
13. For example, Article 8 includes "wilful killing" among its list of war crimes, but provides no definition of this offense. See ICC Statute, supra note 1, art. 8(2)(a)(i). In comparison, U.S. criminal statutes are normally drafted such that the elements are self-evident to any criminal lawyer.
14. See supra note 6.
15. Much of the language in Article 8 derives from the Hague and Geneva Conventions and uses esoteric terms that were neither widely understood nor consistently defined among the law of war experts negotiating in Rome (based on informal author poll). See e.g., "treacherously" (art. 8.2 (b)(xi)), "pillaging" (art. 8.2(b)(xvi)), "quarter" (art. 8.2(b)(xii)). More significantly, many of these same terms were originally negotiated with known or intended ambiguities. The meaning of "imperatively demanded by the necessities of war" (art. 8.2(b)(xiii)) has evaded agreement for years. Similarly, "buildings which are undefended" (art. 8.2(b)(v)) has been subject to several national definitions. The difference between "poison" (art. 8.2(b)(xvii)) and "poisonous or other gases, and all analogous liquids, materials or devices" (art. 8.2(b)(xviii)), or between "biological experiments" (art. 8.2(a)(ii)) and "medical or scientific experiments" (art 8.2(b)(x)) is not widely recognized. These are but a few of the imprecise terms used in one portion of the war crimes list; see also infra notes 27, 30-33 and accompanying text. The crimes against humanity listed in Article 7 are somewhat better defined than the Article 8 war crimes, but still suffer from similar ambiguities.
16. Duplication can be found throughout the war crimes in Article 8. See, e.g., crimes defined in Articles 8.2(a)(iv), 8.2(b)(xiii), 8.2(b)(xvi), 8.2(c)(v), and 8.2(e)(xii) (describing destruction or appropriation of property); and Articles 8.2(b)(vi), 8.2(b)(xi), and 8.2(e)(ix) (describing treacherous killing or wounding).
17. ICC Statute, supra note 1, art. 30, paras. 1 and 3.
18. The Geneva Conventions define grave breaches to include "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly," where those acts were "committed against persons or property protected by the Convention." Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, art. 50, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention for the Amelioration of the Condition of the Wounded and Sick].
19. The PrepCom definition of the knowledge element for grave breaches requires that "such [victim or victims] were protected under one or more of the Geneva Conventions of 1949 and the accused was aware of the factual circumstances that established this status." See Discussion Paper Proposed by the Coordinator on Article 8: War Crimes, U.N. Doc. PCNICC/1999/WGEC/RT.2 (1999).
20. A variety of political and practical constraints prevented the drafters from defining the crimes falling within the Court's jurisdiction with sufficient precision for criminal law purposes. Therefore, the U.S. delegation proposed that Elements of Crimes be negotiated during the PrepCom meetings; elements were to be negotiated by states prior to anyone standing trial before the Court.
21. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, Annex, U.N. Doc. S/25704 (1993), reprinted in 32 ILM 1159, 1192 (1993) [hereinafter ICTY Statute]. The Statute was adopted by the Security Council on May 25, 1993. See SC Res. 827, U.N. Doc. S/RES/ 827 (1993), reprinted in 32 ILM 1203 (1993). See also Scan D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 87 (1999) (claiming that the ICTY and relevant treaties on international humanitarian law do not describe "various elements that should be found in order to determine whether the crime was committed").
22. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, Annex, U.N. Doc. S/25704 (1993), reprinted in 32 ILM 1159, 1192 (1993) [hereinafter ICTY Statute]. The Statute was adopted by the Security Council on May 25, 1993. See SC Res. 827, U.N. Doc. S/RES/ 827 (1993), reprinted in 32 ILM 1203 (1993). See also Scan D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 87 (1999) (claiming that the ICTY and relevant treaties on international humanitarian law do not describe "various elements that should be found in order to determine whether the crime was committed").
23. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, Annex, U.N. Doc. S/25704 (1993), reprinted in 32 ILM 1159, 1192 (1993) [hereinafter ICTY Statute]. The Statute was adopted by the Security Council on May 25, 1993. See SC Res. 827, U.N. Doc. S/RES/ 827 (1993), reprinted in 32 ILM 1203 (1993). See also Scan D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 87 (1999) (claiming that the ICTY and relevant treaties on international humanitarian law do not describe "various elements that should be found in order to determine whether the crime was committed").
24. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, Annex, U.N. Doc. S/25704 (1993), reprinted in 32 ILM 1159, 1192 (1993) [hereinafter ICTY Statute]. The Statute was adopted by the Security Council on May 25, 1993. See SC Res. 827, U.N. Doc. S/RES/ 827 (1993), reprinted in 32 ILM 1203 (1993). See also Scan D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L L. 57, 87 (1999) (claiming that the ICTY and relevant treaties on international humanitarian law do not describe "various elements that should be found in order to determine whether the crime was committed").
25. The exact number is subject to debate depending how various Articles are parsed by practitioners. For example, at the July 26-August 13 PrepCom meeting, Article 8.2(a)(ii) ("[t]orture or inhuman treatment, including biological experiments") was divided into three distinct crimes for purposes of developing criminal elements.
26. Charter of the International Military Tribunal for the Trial of the Major War Criminals, appended to Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, as amended, Protocol to Agreement and Charter, Oct. 6, 1945 [hereinafter Nürnberg Charter].
27. Statute of the International Criminal Tribunal for Rwanda, Annex, U.N. Doc. S/ RES/955 (1994), reprinted in 33 ILM 1598, 1602 (1994) [hereinafter ICTR Statute].
28. Like the ICTY Statute, the Nürnberg Charter and ICTR Statute do not clarify Elements of Crimes. When assessing the relevance of this fact, however, one should Consider that these tribunals were established ex post facto and their subject matter jurisdiction presumed crimes so firmly established that detailing elements was not necessary.
29. See, e.g., 1 Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., Supp. No. 22, at 16, U.N. Doc. A/51/22 (1996) (referencing the customary international law status of the definitions of crimes in the Statute and noting that several delegations argued that the Statute should codify customary international law but not create new substantive law). To speed the drafting process, the negotiators decided that only those crimes having a foundation in customary international law would be listed in the Statute. Otherwise, achieving agreement on the list of offenses would have substantially delayed negotiations.
30. ICC Statute, supra note 1, art. 8, para. 2(a)(iii).
31. See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick, supra note 17, arts. 49-51; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, arts. 50-52, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 102, 105-08, 129-131, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilians in Time of War, Aug. 12, 1949, arts. 146-48, 6 U.S.T. 3516, 75 U.N.T.S. 287.
32. 1 COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949: GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD (Jean S. Pictet ed., 1952).
33. ICC Statute, supra note 1, art. 8, para. 2(b)(xi).
34. Id. art. 8, para. 2(b)(v).
35. Id. art. 7, para. 1(h) and 2(g).
36. See also supra notes 12 and 14 for additional examples of imprecision in Article 8.
37. Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27, 1155 U.N.T.S. 331, reprinted in 8 ILM 679. Article 31(1) provides 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 light of its object and purpose." Article 32 further provides that "[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm [its] meaning."
38. Since the delivery of these remarks, events in Kosovo have provided a quintessential example of this dynamic. There is increasing political pressure for ICTY prosecutor Louise Arbour to investigate "war crimes" committed by NATO forces that are subject to ICTY jurisdiction. See, e.g., Jonathan M. Miller, International Law May Halt the Bombing, L.A. TIMES, May 11, 1999, at A-13 (arguing that bombing as a form of pressure is illegal, and that NATO officials and military personnel possibly could be indicted for the war crime of "wanton destruction of cities, towns or villages, or devastation not justified by military necessity").
39. See supra note 4.
40. An example of the difficulties caused by this unfamiliarity is found in the term chosen for the ICC Statute, "Elements of Crimes." The ICC Statute uses only the latter term to accommodate those who were concerned that the term "proof" implied more constraint on judges. However, the majority view now seems to be moving toward the American concept of the role of elements in defining criminal culpability.
41. French law does not use a "beyond a reasonable doubt" standard for criminal convictions but rather require that the trier of fact have an inner certainty (intimate conviction) of the defendant's guilt. Moreover, intimate conviction is based on the totality of the evidence presented; the trier of fact may give greater weight to some elements and find a defendant guilty even if the evidence supporting a particular element is weak, provided the evidence as a whole establishes the requisite inner certainty of guilt. In contrast, U.S. criminal law requires every element of a crime to be proved beyond a reasonable doubt to support a conviction.
42. Inchoate offenses are defined as "incipient crime[s] which generally lead to another crime." BLACK'S LAW DICTIONARY 761 (6th ed. 1990). As used in the U.S. proposal, the section refers to all instances involving criminal culpability when the accused themselves do not complete the actus reus of the offense in question.
43. ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 13, citing Brown v. Board of Educ., 347 U.S. 483 (1954).
44. After heated negotiations, the informal working group handling the genocide elements ultimately agreed on a text that included an appropriate contextual element. The current working document for Article 6 now specifies the following elements: that "[t]he accused knew or should have known that the conduct would destroy, in whole or in part, such group or that the conduct was part of a pattern of similar conduct directed against that group." See Discussion Paper Proposed by the Coordinator on Article 6: The Crime of Genocide, U.M. Doc. PCNICC/1999/WGEC/RT.1 (1999).
45. By way of anecdote, one proposal during an informal session of the PrepCom was to delete certain questionable elements that might constrain the Court. Had these elements in fact been deleted, criminal culpability for "inhuman treatment" under Article 8(2)(a)(ii) could be established if only two elements were met: 1) that the accused's act occurred in the context of an armed conflict, and 2) that the act was directed against a "protected person." No limitation regarding the nature of the act was deemed necessary.
46. The Committee of the Whole was that body at the Rome diplomatic conference responsible for negotiating the ICC Statute.
47. Kirsch, supra note 5, at 437.