Customary international law in the 21st century: Old challenges and new debates

European Journal of International Law

Volumn 21, Issue 1, 2010, Pages 173-204

  Baker, Roozbeh Rudy B ^a  

^a PEPPERDINE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 77953551548     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq015     Document Type: Article

References (153)

1. Y. Simbeye, Immunity and International Criminal Law (2004), at 37-38.
2. P. Malanczuk (ed.), Akehurst's Modern Introduction to International Law (1997), at 44.
3. Throughout this article the term 'non-traditional scholarship' shall be employed to describe the turn towards reinterpreting the traditional sources of customary international law. Other terms which have employed by other commentators include 'new customary international law', 'new custom', and 'modern custom'. These terms of course refer to the end result of the scholarship, whereas the term employed by this article refers to the process (scholarship) through which the end result came about.
4. See, e.g., Tomuschat, 'International Law: Ensuring the Survival of Mankind on the Eve of a New Century', 281 Recueil des Cours (1999) 9, at 86.
5. See Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 UNTS 277.
6. See International Covenant on Civil and Political Rights (ICCPR), 19 Dec. 1966, 999 UNTS 171, Art. 2; United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 Dec. 1975, 1465 UNTS 85.
7. See, e.g., Sohn, 'The International Law of Human Rights: A Reply to Recent Criticisms', 9 Hofstra L Rev (1981) 347.
8. Sohn, 'The New International Law: Protection of the Rights of Individuals rather than States', 32 Am U L Rev (1982) 1
9. D'Amato, 'The Concept of Human Rights in International Law', 82 Columbia L Rev (1982) 1110
10. Sohn, '"Generally Accepted" International Rules', 61 Washington L Rev (1986) 1073
11. See, e.g., Weil, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) 413.
12. I.e., the International Criminal Tribunal for the former Yugoslavia or ICTY, and the International Criminal Tribunal for the Rwanda or ICTR.
13. I.e., the International Criminal Court or ICC.
14. Some have already begun, in a preliminary manner, to address this question by worrying how the international system will cope with a proliferation of international tribunals issuing possibly contradictory opinions: see Spelliscy, 'The Proliferation of International Tribunals: A Chink in the Armor', 40 Columbia J Transnat'l L (2001) 143
15. This article's analysis of the jurisprudence of international tribunals and their adoption into customary international and domestic law will concern itself with the work of the ad hoc ICTY and ICTR, not the permanent ICC, as the ICC has yet to adjudicate on any of its pending cases (and hence has not built a corpus of case law).
16. T. Buergenthal and S.D. Murphy, Public International Law (3rd edn, 2002), at sect. 2-4.
17. Note that there can also exist regional customary law which is binding on a group of nation states in a particular region, but not upon the international system as a whole: see Asylum (Columbia v. Peru) [1950] ICJ Rep 266.
18. What of the situation, however, when one has an inconsistency between state practice and opinio juris (on the part of one or a group of states)? According to the International Court of Justice, in such situations state conduct which runs counter to the rule should be viewed as a violation of such rule, not as evidence that the state does not intend to recognize it: see Military and Paramilitary Activities (Nicaragua v. US) [1986] ICJ Rep 14, at 98.
19. I.e., if a rule of customary international law is emerging and a nation state remains silent, then this can be seen as giving implicit consent that the nation state will be bound by the new customary rule: see Restatement (Third) of the Foreign Relations Law of the United States (1987), at sect. 102 comment d.
20. See Fisheries Case (UK v. Norway) [1951] ICJ Rep 116.
21. See Arnett, 'Death at an Early Age: International Law Arguments Against the Death Penalty for Juveniles', 57 U Cincinnati L Rev (1988) 245, at 260 n. 113.
22. For the minority-held contra view see Virally, 'The Sources of International Law', in M. Sorensen (ed.), Manual of Public International Law (1968), at 116, 148.
23. Vienna Convention on the Law of Treaties, 23 May 1969, 155 UNTS 331, Arts 53, 64, 71
24. D.J. Bederman, International Law Frameworks (2001), at 23.
25. R. Higgins, Problems and Processes: International Law and How We Use It (1995), at 22.
26. Other commentators, however, depart from this vision of jus cogens as a clear-cut concept: see, e.g., Parker and Neylon, 'Jus Cogens: Compelling the Law of Human Rights', 12 Hastings Int'l & Comp L Rev (1989) 411, at 414-416 (where the authors demonstrate the difficulty in determining the meaning of jus cogens through a discussion of the variety of definitions it has been given).
27. Barcelona Traction, Light & Power Co., Ltd. (New Application) (Belgium v. Spain) [1970] ICJ Rep 4, at 33-34.
28. Statute of the International Court of Justice, 26 June 1945, 156 UNTS 77, Art. 38(1)(a).
29. Sitting in The Hague, the ICJ is the principle judicial organ of the UN. All members of the UN are ipso facto members of the Court, and must therefore adhere to the Court's Statute. The Court consists of 15 judges, elected by absolute majorities in both the UN General Assembly and Security Council.
30. See, e.g., North Sea Continental Shelf, (W Germany v. Denmark, W Germany v. Netherlands) [1969] ICJ Rep 3 (where the ICJ had held that 'widespread and representative' adoption of a conventional/treaty rule by non-signatory states, coupled with only the passage of a 'short period' of time, was all that was required to transform conventional international law into customary international law).
31. Convention on the Continental Shelf, 29 Apr. 1958, 499 UNTS 311, Art. 6.
32. See also Akehurst, 'Custom as a Source of International Law', 47 British Yrbk Int'l L (1977) 1, at 18-19, 53, where the author notes that one of the prime determinants of the length of the time period required to transform the treaty provision into a norm of customary international law was whether (a) there existed conflicting state practice regarding the norm; and (b) whether the new norm overturned existing rules
33. For an early (yet more through) description of this line of reasoning see generally A. D'Amato, The Concept of Custom in International Law (1971), at 103-166.
34. The legislative history and preparatory materials of an international convention
35. Note that while it had never been disputed that the UN SC, under Arts 24(1) and 25 of the UN Charter (granting it the 'primary responsibility for the maintenance of international peace and security' and binding the other UN member states to carry out its directives), had a very real and concrete influence upon international law, it had never before been contended that the GA possessed this influence as well. This fact aside, some have taken the arguments forwarded by the non-traditional scholarship even further, claiming that the actions and indeed statements of non-governmental organizations can play a role in the formation of customary international law: see Gunning, 'Modernizing Customary International Law: The Challenge of Human Rights', 31 Virginia J Int'l L (1991) 211, at 222-225.
36. That this is true is beyond reproach; one could however plausibly assert the counter-argument that this fact had as much to do with the role of opinio juris in the process as it did with states simply accepting generalizable treaty provisions as sources of customary (rather than conventional) international law
37. Cheng, 'The Future of General State Practice in a Divided World', in R. St J Macdonald and D.M. Johnston (eds), The Structure and Process of International Law (1983), at 513, 531-532.
38. Cheng, 'United Nations Resolutions on Outer Space: "Instant" International Customary Law?', 5 Indian J Int'l L (1965) 23
39. 'Remarks of Judge Jimenez de Arechaga', in A. Cassese and J.H.H. Weiler (eds), Change and Stability in International Law-Making (1988), at 47, 48-50.
40. Of course, a counter-argument could be made that the flaw in such a line of reasoning is that, without state practice, the true intent, interests, and commitment of the state to the rule in question are impossible to determine: see, e.g., Charney, 'International Agreements and the Development of International Law', 61 Washington L Rev (1986) 971, at 990-996.
41. Indeed, the ICJ seemed, in part, to endorse this point of view when, in the Nicaragua case, supra note 19, at 98-107, it relied more heavily on UN resolutions and international treaties (in order to ascertain customary international rules on the use of force and principle of non-intervention) than on actual state practice
42. Pellet, 'The Normative Dilemma: Will and Consent in International Law-making', 12 Australian Yrbk Int'l L (1992) 22, at 37-46
43. There are, however, contrary views to this line of reasoning within the new scholarship: see, e.g., Chodosh, 'An Interpretive Theory of International Law', 28 Vanderbilt J Transnat'l L (1995) 973, at 1052-1056 (Chodosh proposes 4/5 quorum of states adopting a treaty provision before it can be elevated into a customary norm).
44. This line of reasoning is however highly problematic. A sceptic to D'Amato's line of argument could propose that there are numerous ways (e.g., diplomatic correspondence and notes, policy papers, public statements, etc.) to survey the attitudes and beliefs of a nation state. Indeed, if one were to accept D'Amato's premise, then what would remain of opinio juris which is, after all, a determination of why a state acts in a way that it does. D'Amato would most probably reply to the last point of the critique, regarding opinio juris, with the retort that as he conceptualizes opinio juris as only encompassing overt physical acts of states (rather than claims or statements) opinio juris would therefore not be affected.
45. See, e.g., Ermacora, 'Human Rights and Domestic Jurisdiction', 124 Recueil des Cours (1968) 375, at 436 (where the author argues that principles of non-intervention in international law do not apply in cases of human rights violations, as such violations do not fall within domestic jurisdiction and are rather an international concern).
46. McDougal and Reisman, 'Rhodesia and the United Nations: The Lawfulness of International Concern', 62 AJIL (1969) 1, at 18 (where the authors argue that flagrant deprivations of basic human rights do not stop within the territory of the state within which they occur)
47. See Bassiouni, 'International Crimes: Jus Cogens and Obligatio Erga Omnes', 59 Law & Contemp Problems (1996) 63, at 69
48. For a discussion of the traditional method for determining whether a rule of customary international law has become elevated to a jus cogens norm
49. There are 3 categories of generally accepted international offences (derived from various international treaties and custom): (1) War Crimes and Grave Breaches of the Geneva Conventions; (2) Crimes Against Humanity; and (3) Genocide
50. See I. Bantekas and S. Nash, International Criminal Law (3rd edn, 2007).
51. See, e.g., Simma and Alston, 'The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles', 12 Australian Yrbk Int'l L (1988-1989) 82, at 83.
52. See also Jennings, 'The Identification of International Law', in B. Cheng (ed.), International Law, Teaching and Practice (1982), at 3, 5, where the author, on commenting on the non-traditional scholarship, claims that what they elevate to customary international law 'is not only not customary law: it does not even faintly resemble a customary law').
53. G.J.H. van Hoof, Rethinking the Sources of International Law (1983), at 107-108.
54. The same Anthony D'Amato, whose work so integrally contributed to the non-traditional scholarship, has in later works criticized its seeming promotion of opinio juris over state practice: see D'Amato, 'Trashing Customary International Law', 81 AJIL (1987) 101
55. Franck, 'Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits)', 81 AJIL (1987) 116, at 119.
56. See, e.g., Weisburd, 'American Judges and International Law', 36 Vanderbilt J Transnat'l L (2003) 1475, at 1505-1506, where the author criticizes international law commentators who, when purporting to make claims about what constitutes international law, do not refer to state practice. One can compare this critique to the view forwarded by the International Law Institute in its Restatement (Third) of the Foreign Relations Law of the United States, when it claims the following: '[i]nternational human rights law governs relations between a state and its own inhabitants. Other states are only occasionally involved in monitoring such law through ordinary diplomatic practice. Therefore, the practice of states that is accepted as building customary international law of human rights includes some forms of conduct different from those that build customary international law generally'.
57. Weisburd, 'Customary International Law: The Problem of Treaties', 21 Vanderbilt J Transnat'l L (1988) 1
58. For a response to this line of reasoning see D'Amato, 'Custom and Treaty: A Response to Professor Arthur A. Weisburd', 21 Vanderbilt J Transnat'l L (1988) 459.
59. K. Wolfke, Custom In Present International Law (2nd edn, 1993), at 172-173.
60. For the resolution establishing the ICTY see SC Res 827, UN SCOR, 48th Sess., 3217th mtg., UN Doc S/RES/827 (1993) (establishing the ICTY under the SC's Chap. VII powers, and determining that ethnic cleansing in the former Yugoslavia constituted a threat to international peace and security). For the resolution establishing the ICTR see SC Res 955, UN SCOR, 49th Sess., 3453rd mtg., UN Doc S/RES/955 (1994) (establishing the ICTR under the SC's Chap. VII powers, and determining that genocide and other human rights abuses in Rwanda constituted a threat to international peace and security).
61. See 'Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808' (1993), UN Doc S/25704, at para. 29 (where the Secretary General states the following with regard to the establishment of the ICTY: 'the Security Council would not be creating or purporting to "legislate" the law. Rather, the International Tribunal would have the task of applying existing international humanitarian law').
62. See Statute for the International Criminal Tribunal for the Former Yugoslavia, adopted at New York, 25 May 1993, SC Res 827, UN SCOR 48th Sess., 3217th mtg., UN Doc S/RES/827 (1993), Art. 1; Statute for the International Criminal Tribunal for Rwanda, adopted at New York, 8 Nov. 1994, SC Res 955, UN SCOR 49th Sess., 3453d mtg., UN Doc S/RES/955 (1994), Art. 1.
63. See, e.g., Edelman, 'Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law', 97 American J. Sociology (1992) 1531.
64. Edelman, 'Legality and the Endogeneity of Law', in R.A. Kagan, M. Krygier, and K. Winston (eds), Legal And Community: On the Intellectual Legacy of Philip Selznick (2002).
65. Edelman, 'Law at Work: The Endogenous Construction of Civil Rights', in L.B. Nielson and R.L. Nelson (eds), Handbook of Employment Discrimination Research: Rights and Realities (2005).
66. It should be noted that while Edelman's work views 'lawmaking bodies' as encompassing both legislatures and courts (with 'cites of practice' often encompassing corporations); the argument being forwarded here, in this portion of the article, is that within the international legal system the ICTY and ICTR, as bodies called on to interpret and apply law which was sometimes general and ambiguous, are acting as 'sites of practice' for the purpose of Edelman's theory
67. Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber Judgment (15 July 1999).
68. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 79-84 (2 Oct. 1995).
69. The Armed Forces of the self-declared Bosnian Serb Republic (Republika Srpska)
70. Which was composed of the republics of Serbia and Montenegro (under the old Socialist Federal Republic of Yugoslavia), which had decided to remain in the Yugoslav union
71. See Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Chamber Judgment (7 May 1997).
72. As examples of where the effective control standard fell foul of judicial practice the appeals chamber cited cases from the Mexico-US Claims Tribunal, the Iran-US Claims Tribunal, and the European Court of Human Rights. The following should be noted regarding the cases cited by the appeals chamber: (1) the work of the Mexico-US Claims Tribunal was completed decades before the ICJ's ruling in Nicaragua; (2) the Iran-US Claims Tribunal, as a private arbitral body designed to adjudicate monetary claims between the US and the Islamic Republic of Iran, stands on a hierarchical footing which is considerably lower than that of the ICJ; (3) the fact pattern in the European Court of Human Rights decision cited (i.e., App. No. 15318/89, Loizidou v. Turkey (Merits), 1996-VI ECtHR 2216) would actually meet the effective control standard: see Tyner, 'The Internationalization of War Crimes Prosecutions: Correcting the International Criminal Tribunal for the Former Yugoslavia's Folly in Tadic', 18 Florida J Int'l L (2006) 843, at 859 n.91.
73. Not all the judges on the appeals panel agreed that expressly attacking the ICJ's effective control standard was a wise course of action
74. For evidence of this with regard to the ICTY's overall control standard see M. Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (2002), at 554.
75. R. Kerr, The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy (2004), at 80-81.
76. Sassoli and Olson, 'The Judgment of the ICTY Appeals Chamber on the Merits in the Tadic Case', 839 Int'l Rev Red Cross (2000) 733, at 739
77. Jinks, 'State Responsibility for Sponsorship of Terrorist and Insurgent Groups: State Responsibility for the Acts of Private Armed Groups', 4 Chicago J Int'l L (2003) 83, at 88-89
78. M. Dixon, Textbook on International Law (4th edn, 2000), at 239.
79. Stahn, 'International Law Under Fire: Terrorist Acts as "Armed Attack": The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism', 27 Fletcher Forum World Affairs (2003) 35, at 47
80. Shane Spelliscy makes much the same point (in relation to the Tadić appeals chamber decision)
81. Although note that heads of state can also enjoy immunity rationae materiae, in addition to immunity rationae personae - with rationae personae transforming to rationae materiae once the head of state has left office
82. See Watts, 'The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers', 247 Recueil des Cours (1994) 8, at 56, 88
83. Dorsey, 'Reflections on the Foreign Sovereign Immunities Act After Twenty Years', 28 J Maritime L & Commerce (1997) 257, at 257
84. I. Brownlie, Principles of Public International Law (4th edn, 1990), at 326-327.
85. Mallory, 'Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings', 86 Columbia L Rev (1986) 169, at 170-171
86. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belgium) [2002] ICJ Rep 3, at 20-22.
87. See generally R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3) [1999] 2 All ER 97 (where the Law Lords held that the coming into force of the Torture Convention (to which both the UK and Chile were signatories) and its introduction of universal jurisdiction for the offence swayed the balance away from viewing torture as an 'official act' shielded by immunity rationae materiae and towards instead a non-official act not covered by such immunity), but contrast App. No. 35763/97, Al-Adsani v. UK, 34 ECtHR (2002) 11, at paras 55-66, where the ECtHR held that the prohibition against violations of fundamental norms of international law, including jus cogens, had to be interpreted in a way which did not violate other accepted norms of international law, such as state immunities.
88. See, e.g., O'Neill, 'A New Customary Law of Head of State Immunity?: Hirohito and Pinochet', 38 Stanford J Int'l L (2002) 289, at 297, where the author claims that the customary law on head of state immunity has become 'undefined and vague'.
89. See, e.g., Singerman, 'It's Still Good to be the King: An Argument for Maintaining the Status Quo in Foreign Head of State Immunity', 21 Emory Int'l L Rev (2007) 413, at 429-440, citing the ICTY and ICTR as two of the factors contributing to a possible shift in the international law regarding head of state immunity.
90. O'Donnell, 'Certain Criminal Proceedings in France (Republic of Congo v. France) and Head of State Immunity: How Impenetrable Should the Immunity Veil Remain?', 26 Boston U Int'l LJ (2007) 375, at 386-388, where the author points to the establishment of the ICTY and ICTR, and their refusal to recognize head of state immunity, as contributing factors to the movement away from an absolute head of state immunity in international law.
91. Certain commentators have analogized command responsibility to the accomplice liability found in many domestic criminal law systems, in that accomplice liability holds an accomplice also liable for the crime committed by the perpetrator if the requisite intent is established: see Bantekas, 'The Contemporary Law of Superior Responsibility', 93 AJIL (1999) 573, at 575-577
92. See generally Vetter, 'Command Responsibility of Non-military Superiors in the International Criminal Court (ICC)', 25 Yale J Int'l L (2000) 89, where the author charts the history of the doctrine of command responsibility in the Nuremberg and Tokyo Tribunals
93. Under both the Roman-inspired civil law and English-inspired common law, all crimes are composed of 2 basic elements: the physical element or guilty act (actus reus) and the mental element or guilty mind (mens rea). See infra note 113.
94. For a particularly well constructed early critique see Damaška, 'The Shadow Side of Command Responsibility', 49 American J Comp L (2001) 455
95. Indeed, commentators have been split as to the mens rea finding of the most often-cited Tokyo Tribunal case dealing with the doctrine, that of General Yamashita: see Martinez, 'Understanding Mens Rea in Command Responsibility: From Yamashita to Blaškić and Beyond', 5 J Int'l Criminal Justice (2007) 638, at 641-643
96. For a general discussion on the concept of lacunae in international law and the different theories of how they can be filled see Weil, '"The Court Cannot Conclude Definitively. ." Non Liquet Revisited', 36 Columbia J Transnat'l L (1997) 109.
97. See, e.g., G. Stefani and G. Levasseur, Droit Pénal Général et Procédure Pénal (1964), at 226 ff.
98. J. Pradel, Manuel de Droit Pénal Général (9th edn, 1994), at 436 ff.
99. Dupont and Fijnaut, 'Criminal Law (Belgium)', in R. Blanpain and M. Colucci (eds), International Encyclopedia of Laws (Criminal Law) (1993) (2008 supp.), at paras 109, 126 (2008).
100. R. Card, Criminal Law (15th edn, 2001), at sect. 3.1.
101. D. Stuart, Canadian Criminal Law (4th edn, 2001), at 79-80, 153-156.
102. W.R. LaFave, Criminal Law (3rd edn, 2000), at sect. 3.1.
103. This was the fact pattern in the oft-cited Fagan case in the UK: see Fagan v. Commissioner of Metropolitan Police [1969] QB 439 (CA).
104. This was the fact pattern in the well-known Miller case in the UK: see R. v. Miller [1983] AC 161 (HL).
105. Which translates as 'an act does not become guilty unless the mind is guilty'
106. In the US, e.g., the Model Penal Code differentiates between 4 mens rea formulations: purpose, knowledge, recklessness, and negligence: see Model Penal Code, (1962), at sect. 2.02(2).
107. See Mueller, 'On Common Law Mens Rea', 42 Minnesota L Rev (1957-1958) 1043, at 1055 ('[t]here has crept into our thinking the idea that there is no singular concept of mens rea but that, since every crime has a different mens rea requirement, one should talk of mentes reae rather than mens rea. This is a misconception and it is false to conclude, as some do, that there is no unifying mens rea concept. Just as all cars have different wheels, little cars little wheels and big cars big wheels, and we are justified in referring to them collectively under the unifying concept wheels, so all crimes have a different mens rea and yet the concept of mens rea must be regarded as a unifying concept of various possible frames of mind').
108. There are however certain exceptions to this rather sweeping assertion. First, there is the general exception of certain strict liability crimes which do not require mens rea at all (e.g., statutory rape as defined in certain US jurisdictions). Secondly, there are certain (usually via statute) iterated lesser status offences which usually employ the aforementioned negligence formulation (discussed in supra note 125) within the mental element - examples include 'negligence in the context of unintended death and unintentional wounding' (Belgium), and 'negligent homicide' (in certain US jurisdictions). In Canada and England such lesser status or 'quasi-criminal' offences (employing a negligence formulation within the mental element) can be found as well - the 2 most prominent examples on the English statute books being 'involuntary manslaughter' and 'public nuisance'.
109. ('[W]hat is vital is that. . [the] accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequences and/or circumstances as the case may be. Whether he "could," "ought" or "should" have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability').
110. R. v. Vallance, 108 CLR (1961) 56.
111. Where the same passage from Vallance is quoted by the author also to respond to the critique that the subjective mens rea standard simply opens the door to the wide-scale acquittal of defendants
112. See, e.g., G. Williams, The Mental Element In Crime (1965).
113. Director of Public Prosecutions v. Smith [1961] AC 290 (HL).
114. See, e.g., Williams, 'Constructive Malice Revisited', 23 MLR (1960) 605, at 624 ('[i]n Smith, the evidence made it obvious that the accused did not set out to kill the policeman. He was trying to escape, and for this purpose he tried to shake the policeman off. His obvious purpose explains and renders intelligible the whole of his conduct. It is not a case where you say: "He must have intended to kill the policeman, because otherwise why did he do it?" It is not even clear from such facts that he must have foreseen the probability of serious harm; and, in any case, foresight that a result is probable is not the same as intending it. What Smith did was to create a risk; but creating a risk of death should fall within the law of man-slaughter, not murder. To use an irrebuttable presumption in a case like this creates a fiction of the most revolting kind. It is a fiction that might have been expected in the age before Bentham, but comes badly from judges of the twentieth century').
115. R. v. Parker, 111 CLR (1963) 610, at 632 ('[h]itherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's Case I think that we cannot adhere to that view or policy. There are propositions laid down in that judgment which I believe to be misconceived and wrong', per Dixon CJ).
116. With regard to England note the exception of the lesser status or 'quasi criminal' offences of 'involuntary manslaughter' and 'public nuisance' discussed in supra note 129. It should also be noted that in England in offences in which 'recklessness' (i.e., as a consequence of the actus reus of the crime) is a required element an objective test, in certain situations, may be employed: see Metropolitan Police Com'r v. Caldwell [1982] AC 341 (HL). This approach has met with some criticism however: see Elliot v. C [1983] 2 All ER 1005; Director of Public Prosecutions v. K [1990] 1 All ER 331.
117. R. v. Nedrick [1986] 3 All ER 1, at 4.
118. R. v. Sault Ste. Marie [1978] 2 SCR 1299, 1305 ('[w]here the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with willful blindness toward them. . Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law', per Dickson J). Although note that in the years since Sault Ste. Marie the rigorous standard employed by the Supreme Court of Canada has become somewhat relaxed, with an objective mens rea standard allowed for the aforementioned lesser status or 'quasi-criminal' offences discussed in supra note 129.
119. All of the recognized international offences (listed in supra note 63) may also be committed in their ancillary forms. In addition to command responsibility, these ancillary forms consist of: aiding and abetting, planning, instigating, and ordering.
120. This is more or less identical to the parameters listed in Art. 86 of the 1977 Protocol I to the Geneva Conventions, in which the doctrine of command responsibility was codified (following the jurisprudence of the Nuremberg and Tokyo Tribunals): see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 12 Dec. 1977, 1124 UNTS 3, Art. 86.
121. Prosecutor v. Delalić et al. (Čelebići), Case No. IT-96-21-T, Trial Chamber Judgment, at para. 393 (16 Nov. 1998).
122. See also Prosecutor v. Strugar, Case No. IT-01-42-T, Trial Chamber Judgment, paras 369-370 (31 Jan. 2005).
123. Prosecutor v. Delalić et al (Čelebići), Case No. IT-96-21-A, Appeals Chamber Judgment, para. 226 (20 Feb. 2001) ('[t]he point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so').
124. ('[T]he superior may in fact demonstrate that he was not at all aware of subordinate crimes, but if the prosecutor shows that the accused did not take the necessary and reasonable measures to appraise himself of available and specific information, his truthful ignorance does not constitute a valid defense')
125. Contrast the position of the ICTY Appeals Chamber here in Čelebići, supra note 155, to the reasoning of the Supreme Court of Canada in R. v. Finta [1994] 1 SCR 701, 816 ('[t]he requisite mental element of a war crime or a crime against humanity should be based on a subjective test. I reach this conclusion for a number of reasons. First, the crime itself must be considered in context. Such crimes are usually committed during a time of war. Wars are concerned with death and destruction. Sweet reason is often among the first victims. The manipulation of emotions, often by the dissemination of false information and propaganda, is part and parcel of the terrible tapestry of war. False information and slanted reporting is so predominant that it cannot be automatically assumed that persons in units. . would really know that they were part of a plot to exterminate an entire race of people [i.e., in relation to the Holocaust during World War II]', per Cory J).
126. The use of general principles of domestic law to fill lacunae in international criminal law is well accepted in ICTY jurisprudence: see, e.g., Čelebići, Trial Chamber Judgment, supra note 153, at paras 1165-1170, where the Trial Chamber, in constructing a judicial test for the defence of diminished capacity, cited and relied on the test constructed by the English courts in R. v. Byrne [1960] All ER 1, at 4.
127. In international relations see M. Finnemore, National Interests in International Society (1996), where the author seeks to explore how states can be 'socialized' by the network of actors (both state and transnational) that made up the international system).
128. J. Smith, C. Chatfield, and R. Pagnucco (eds), Transnational Social Movements and Global Politics: Solidarity Beyond the State (1997), where the authors study how various transnational advocacy groups are able to push their policy preferences onto domestic states through organizing constituencies, targeting international organizations, and mobilizing resources.
129. S. Khagram, J.V. Riker, and K. Sikkink (eds), Restructuring World Politics: Transnational Social Movements, Networks, and Norms (2002), where the authors argue that the main ability of transnational actors to affect change in the international system is through either taking well established 'international norms' (i.e. shared standards of behaviour accepted by a majority of actors within the international system) and using them to 'persuade' outlying actors to conform their behaviour to them; or attempting to establish new 'international norms' where none have previously existed. Such 'persuasion' is accomplished by transnational actors through 'the use of information, persuasion, and moral pressure to contribute to change in international institutions and government').
130. See Halliday and Carruthers, 'The Recursivity of Law: Global Norm Making and National Law Making in the Globalization of Corporate Insolvency Regimes', 112 American J Sociology (2007) 1135
131. Loi du 16 juin 1993 relative à la repression des infractions graves aux Conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977, additionnels à ces Conventions (Law of 16 June 1993) [1993] Moniteur Belge 17751
132. Universal jurisdiction is a form of jurisdiction in international law which grants the courts of any state the ability to bring proceedings in respect of certain (internationally defined) crimes without regard to the location of the crime, the nationality of the offender, or the nationality of the victim
133. See Randall, 'Universal Jurisdiction Under International Law', 66 Texas L Rev (1988) 785
134. See Loi relative à la repression des violations graves de droit international humanitaire (Law of 10 February 1999) [1999] Moniteur Belge 9286
135. See Loi modifiant la loi du 16 juin 1993 relative à la repression des violations graves de droit international humanitaire et l'article 144ter du Code judiciaire (Law of 23 Apr. 2003) [2003] Moniteur Belge 24846.
136. See Loi relative à la repression des violations graves de droit international humanitaire (Law of 5 Aug. 2003) [2003] Moniteur Belge 40506.
137. See, e.g., Reydams, 'Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law', 1 J Int'l Criminal Justice (2003) 679.
138. Vandermeersch, 'Prosecuting International Crimes in Belgium', 3 J Int'l Criminal Justice (2005) 400
139. Baker, 'Universal Jurisdiction and the Case of Belgium: A Critical Assessment', 16 ILSA J Int'l & Comp L (2009) 1
140. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90
141. See Rapport de la Commission de la Justice du Sénat, 1 Dec. 1998 (Doc. No. 1-749/3).
142. See Bernstein, 'Belgium Rethinks Its Prosecutorial Zeal', New York Times, 1 Apr. 2003, at A8.
143. The ensuing years post-1999 had seen a rash of criminal actions filed in Belgium against current and former heads of state and government officials from around the world, severely damaging Belgium's international relations with other countries: see Ratner, 'Belgium's War Crimes Statute: A Postmortem', 87 AJIL (2003) 888, at 890
144. See, e.g., Cour de Cassation, Arrêt No. P.02.1139.F, 12 Feb. 2003, where the Court of Cassation, Belgium's highest criminal court, expressly held that members of foreign national governments could not be prosecuted under the statute while still in office, but instead could be prosecuted only once they had left office. The Court of Cassation based its decision on the understanding that customary international law had afforded members of national governments immunity for official acts and thus a shield from prosecution whilst in office (immunity rationae materiae).
145. See SC Res 1244, UN SCOR, 54th Sess., 4011th mtg. P 10, UN Doc S/RES/1244 (1999).
146. See UNMIK Reg. 2000/6 on the Appointment and Removal from Offices of International Judges and International Prosecutors (15 Feb. 2000).
147. It should be noted that, at this point in time, the domestic law applicable in the province was that of the former Yugoslavia. See UNMIK Reg. 1994/24 on the Law Applicable in Kosovo (12 Dec. 1999).
148. Prosecutor v. Latif Gashi et al. (Llapi), C.C. No. 425/2001 (Dist. Ct. Priština, 16 July 2003), reprinted in T.L.H. McCormack and A. McDonald (eds), Yearbook of International Humanitarian Law: Volume 6 (2003), at 594-601.
149. Given the unique hybrid international-Kosovar make-up of the Priština District Court, an argument could also be forwarded that the causal trigger prompting the refraction of the international norm (i.e., command responsibility and the objective mens rea standard) into the Kosovar criminal legal system was the ability of the international community directly to insert its own values and norms into the Kosovar system through the international judges and prosecutors.
150. There is nothing inherently connecting the objective mens rea standard to the doctrine of command responsibility. The doctrine can just as easily be intoduced into a legal system (national or otherwise) without the objective mens rea standard and instead with the less problematic subjective standard. See, e.g., Krivični Zakon Republike Srbije (Criminal Code of the Republic of Serbia), Art. 384 (where the mens rea for the newly introduced offence of command responsibility in the Serbian Criminal Code is the subjective standard: '[a] military commander or person who in practice is discharging such function, knowing [author's emphasis, note that there is no "having reason to know" or objective standard here] that forces under his command or control are preparing or have commenced committing offences').
151. Prosecutor v. Latif Gashi et al.(Llapi II), SCK, No. 139/2004 (Sup. Ct. Kosovo, 12 July 2005).
152. see also Prosecutor v. Andjelko Kolasinac, SCK, No. 230/2003 (Sup. Ct. Kosovo, 9 Jan. 2004), at 28-36.
153. Where the Supreme Court of Kosovo held that the doctrine of command responsibility and the objective mens rea standard it utilizes directly conflicted with domestic Yugoslav criminal law norms and could thus not be domestically applied