Developments in criminal law and criminal justice

Criminal Law Forum

Volumn 8, Issue 2, 1997, Pages 317-334

  Broomball, Bruce ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 51649164305     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: None     Document Type: Article

References (83)

1. "Preparatory Committee on International Criminal Court Concludes Third Session," UN Press Release L/2824 (Feb. 21, 1997). This document and many others cited in this essay can be accessed at various sites on the World Wide Web, including http://www.igc.apc.org/icc, http://www.apc.igc,org/tribunal, or http://www.un.org/icty.
2. "A Critical Study of rhe International Tribunal for the Former Yugoslavia," 5 Grim. L.F. 223-714 (1994) (special issue); Roger S. Clark & Madeleine Sann, Coping with Ultimate Evil through the Criminal Law, 7 Crim. L.F. 1 (1996);
3. Alfred de Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia, 6 Crim. L.F. 257 (1995);
4. Kenneth J. Harris & Robert Kushen, Surrender of Fugitives to the War Crimes Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations with the U.S. Constitution, 7 Crim. L.F. 561 (1996);
5. Timothy L.H. McCormack & Gerry J. Simpson, The International Law Commission 's Draft Code of Crimes against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions, 5 Crim. L.F. 1 (1994);
6. R. John Pritchard, The Gifi of Clemency following British War Crimes Trials in the Far East, 1946-1948, 7 Crim. L.F. 15 (1996);
7. Rosemary Rayfuse, The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission, 8 Crim. L.F. 43 (1997);
8. William A. Schabas, Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems, 7 Crim. L.F. 523 (1996).
9. This focus rests on the assumption -so fir justified -that since jurisdictional issues relate directly to state sovereignty, they will be the most contentious, the most decisive in determining the ICC's effectiveness, and so the most interesting.
10. Report of the International Law Commission on Its Forty-sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994) [hereinafter ILC 46th Session].
11. Funding for the ICC will likely come initially from states parties. Calls to have the ICC funded direcdy from the budget of the United Nations will receive a more favorable hearing if a critical mass of UN member states ratify the Statute.
12. ILC 46th Session, supra note 4, at 66, 2.
13. As the treaty crimes are likely to be either incorporated into the other crimes listed in article 20 (in die case of grave breaches of the 1949 Geneva Conventions), defined expressly in die Statute (should terrorism and narcotics-related offenses be included), or dropped entirely, I do not discuss die ILC's approach to these crimes in detail.
14. [T] he prohibition of genocide is of such fundamental significance, and the occasions for legitimate doubt or dispute over whether a given situation amounts to genocide are so limited, that the Court ought, exceptionally, to have inherent jurisdiction over it by virtue solely of the States participating in the draft Statute, without any further requirement of consent or acceptance by any particular State.
15. ILC 46th Session, supra note 4, at 67-68, 7.
16. GA Res. 49/53, U.N. GAOR, 49th Sess., Supp. No. 49, at 293, U.N. Doc. A/49/49 (1994).
17. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995).
18. G A Res. 50/46, U.N. GAOR, 50th Sess., Supp. No. 49, at 307, U.N. Doc. A/50/49 (1995).
19. Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 51st Sess., Supp. No. 22, vol. I, at 75-76, 368, U.N. Doc. A/51/22 (1996) [hereinafter 1996 Prep. Comm. Report].
20. GA Res. 51/207, U.N. GAOR, 51st Sess. (Dec. 17, 1996). The conference will likely be held in June 1998 in Rome, Italy.
21. Decisions Taken by the Preparatory Committee at Its Session Held from 11 to 21 February 1997, U.N. Doc. A/AC.249/1997/L5 (Mar. 12,1997) [hereinafter Prep. Comm. Decisions], includes the reports of the Working Group on the Definition of Crimes andof the Working Group on the General Principles of Criminal Law and Penalties. For a discussion, see William Pace & Donna K. Axel, Report on the February 1997 Preparatory Committee Session on the Establishment of an ICC (NGO Coalition for an ICC, Mar. 27, 1997).
22. Decisions Taken by the Preparatory Committee at Its Session Held from 4 to 15 August 1997, U.N. Doc. A/AC249/1997/L.8/Rev.l (Aug. 14, 1997).
23. Governments Agree to a 1998 Conference Date, 3 ICC Monitor 1 (Jan. 1997);
24. M. Cherif Bassiouni, Observations Concerning the 1997-98 Preparatory Committee's Work, in The International Criminal Court 5, 13-14 (International Ass'n of Penal Law et al. 1997).
25. ILC 46th Session, supra note 4, at 71-72, 4.
26. G.A. Res. 260B (III), U.N. Doc. A/810, at 177 (1948).
27. The provision in the Statute for a review clause allowing inclusion of further crimes at a later date received strong support at the February 1997 Preparatory Committee meeting. Pace & Axel, supra note 14, §I ("treaty crimes");
28. see also 1996 Prep. Comm. Report, supra note 12, vol. I, at 27, 114.
29. Rayfuse, supra note 2, at 81-86
30. . The ILC's adoption in 1996 of a new version of the Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on Its Forty-eighth Session, U.N. GAOR, 51st Sess., Supp. No. 10, at 9, U.N. Doc. A/51/10 (1996), makes the question of the relationship between the ICC and the Draft Code more pressing.
31. For a discussion, see Pace & Axel, supra, note 14, § I ("crimes against humanity," "war crimes");
32. Bassiouni, supra note 16, at 23-26;
33. Mauro Politi, The Establishment of an International Criminal Court at a Crossroads.: Issues ana Prospects after the First Session of the Preparatory Committee, in The International Criminal Court, supra note 16, at 115, 123-41;
34. C.K. Hall, The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court, 91 Am. J. Int'l L. 177, 180 (1997).
35. The door may be left open for including aggression and treaty crimes at a later time. See supra note 19.
36. Pace & Axel, supra note 14, § I ("aggression");
37. Hall, supra note 21, at 179, 181
38. . 24 For the academic debate about the status and content of this crime, see Yoram Dinstein, War, Aggression, and Self-defence 121-25 (2d ed. 1994),
39. who supports its inclusion, and Christian Tomuschat, Crimes against the Peace and Security of Mankind and the Recalcitrant Third State, in War Crimes in International Law 41, 53 (Yoram Dinstein & Mala Tabory eds., 1996), who is more skeptical.
40. Pace & Axel, supra note 14, § I ("war crimes").
41. See supra note 7.
42. 1996 Prep. Comm. Report, supra note 12, vol. I, at 25-26, 103-105.
43. The inclusion of these crimes remains contentious. Pace & Axel, supra, note 14, § I ("treaty crimes").
44. For difficulties involved in defining terrorism, see Joseph J. Lambert, Terrorism and Hostages in International Low 13-23 (1990);
45. Rosalyn Higgins, The General International Law of Terrorism, in Terrorism and International Law 13, 14-19, 27-28 (Rosalyn Higgins & Maurice Flory eds., 1997);
46. Legal Responses to International Terrorism: U.S. Procedural Aspects K. xxi-xxvi (M. Cherif Bassiouni ed., 1988).
47. Prep. Comm. Decisions, supra note 14, annex I (terrorism defined).
48. See sources cited supra note 21.
49. Many NGOs strongly support this view. E.g., Amnesty International, The International Criminal Court, pt. I, at 13-18 (Jan. 1997).
50. 1996 Prep. Comm. Refort, supra note 12, vol. I, at 28, 117-120.
51. Amnesty International, supra note 30, at 94-95.
52. Although more states supported the idea of an independent prosecutor in the 1996 Preparatory Committee than in die Ad Hoc Committee. Hall, supra note 21, at 182;
53. 1996 Prep. Comm. Report, supra note 12, vol. I, at 35, 149-151;
54. see also ILC 46th Session, supra note 4, at 89, 2;
55. id. at 90, 4.
56. To balance the placing of a "trigger" in die prosecutor's hand, it was suggested diat in camera hearings be held before a chamber of the ICC whenever the prosecutor proposed initiating an investigation. The prosecutor would have to make out a prima facie case, and all "interested States" could be present and make submissions. 1996 Prep. Comm. Report, supra, vol. I, at 35, 150.
57. ILC 46th Session, supra note 4, at 85-86, 1-4;
58. 1996 Prep. Comm. Report, supra note 12, vol. I, at 31-32, 132-136.
59. Hall, supra, note 21, at 181, notes diat die permanent members of the Security Council and many other states support die article 23(1) power.
60. The Security Council has been seized of some situations for more than 30 years. 1996 Prep. Comm. Report, supra note 12, vol. I, at 33, 142;
61. Politi, supra note 21, at 152-53.
62. Suggestions range from requiring the Security Council to be actually "exercising its functions" under chapter VII, to permitting prosecutions to begin except where the Council otherwise decides and is taking effective action, to allowing the ICC to proceed if the Council takes no action in a "reasonable time." 1996 Prep. Comm. Report, supra note 12, vol. I, at 33-34, 5 140-144;
63. id., vol. II, at 76-77, a, c, d.
64. The Security Council could, in any event under UN Charter art. 103, coopt any cooperation with the ICC; making express provision therefor in the Statute is not an innovation. Amando Miclat, A View from the South, 3 ICC Monitor 10 (1997). If there is here a political factor incompatible with criminal justice principles, it is inherent in the international system and not peculiar to the ILC Draft.
65. Jeffrey L. Bleich, Complementarity, in The International Criminal Court, supra note 16, at 231;
66. Politi, supra note 21, at 141-47;
67. 1996 Prep. Comm. Report, supra note 12, vol. I, at 36-41, 153-178.
68. What is at stake, Politi, supra note 21, at 146-47, argues, is the effectiveness of the ICC, on the one hand, and the willingness of states to adopt the Statute, on the other: The issue of complementarity is still at an early stage of consideration by the Preparatory Committee, and the negotiations are less advanced than those on the definition of crimes. . . . While the process of setting up the ICC would be facilitated by ... acceptance of a restrictive approach to complementarity, the search for a better solution that would not excessively narrow the scope of the Court's jurisdiction entails the risk of delaying the negotiations, and perhaps of severely restricting [future state] participation in the statute.
69. A state presumably could not, by invoking the complementarity principle, prevent the ICC from taking jurisdiction if that state did not take the steps necessary under its domestic law to bring the principle of non bis in idem into play. Under this principle as formulated in article 42 of the ILC Draft, the ICC could prosecute individuals for crimes under international law if the same acts were prosecuted at the national level only under ordinary criminal law (provided any sentence served were taken into account). As national courts trying individuals under "ordinary criminal law" may thus be "ineffective" for purposes of the complementarity principle, states will have an incentive to implement at least the substantive law of the Statute.
70. International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter International Covenant].
71. The consent requirements are similar to those in the ILC Draft. International Covenant, supra note 41, art. 41, begins: A State Parry to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this Article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.
72. Amnesty International, supra note 30, at 96 n.406. Forty-five states have made the required declaration to date. "Human Rights Committee Concludes Three-Week Headquarters Session," UN Press Release HR/CT/494 (Apr. 11, 1997).
73. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 21, G A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984). The wording is very close to that in International Covenant, supra note 41, art. 41
74. . See supra, note 42.
75. The analogy with the above named committees is apt. The ICC will exercise jurisdiction over conduct of equally grave international concern as that within the competence of both the Human Rights Committee and the Torture Committee. The same political considerations -concern about good interstate relations, restoring peace, and pursuing alternatives -are likely to enter into the decision to file a complaint.
76. Amnesty International, supra note 30, at 95.
77. Prosecutions might also be possible where corrupt officials, rogue elements, or scapegoats were involved.
78. [F]rom now on, international criminal tribunals must be more effectively supported by police power. Just as there can be no national justice without a police force, there can be no effective international justice without arrests, subpoenas, investigations, and a reliable enforcement mechanism. The international community's inability to create such a mechanism, whether for ad hoc criminal tribunals or for the proposed international criminal court, threatens all efforts to create a system of international criminal justice. But we must not give up in despair.
79. Theodor Meron, Answering for War Crimes: Lessons from the Balkans, Foreign Aff., Jan. 1997, at 2, 8.
80. [T]he political aspects of the topic required a realistic approach in which those were left to the decision of States, and . . . the preparation of the draft statute was, anyway, an unprecedented exercise in creative legislation for the Commission, one that needed to be tempered by a strong sense of practicality. [Limiting the complaint power to states parties] may encourage States to accept the rights and obligations provided for in the Statute and to share in the financial burden relating to the operating costs of the Court.
81. ILC 46th Session, supra note 4, at 31, 48;
82. id. at 89, 2.
83. Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int'l L. 178, 226 (1946).