Coping with ultimate evil through the criminal law

Criminal Law Forum

Volumn 7, Issue 1, 1996, Pages 1-13

  Clark, Roger S ^a,b,c   Sann, Madeleine ^d,e  

^a and law in the military   (United States)

^b VICTORIA UNIVERSITY OF WELLINGTON   (New Zealand)

^c Och Spine at New York Presbyterian Hospitals

^d UNIVERSITY OF PENNSYLVANIA   (United States)

^e RUTGERS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 8344256891     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/BF02196553     Document Type: Article

References (35)

1. A Critical Study of the International Tribunal for the Former Yugoslavia, 5 Crim. L.F., Nos. 2-3 (1994),
2. now available from Transaction Books as The Prosecution of International Crimes: A Critical Study of the International Tribunal for the Former Yugoslavia (Roger S. Clark & Madeleine Sann eds., 1996) (hardbound).
3. In GA. Res. 50/46 (Dec. 11, 1995), the General Assembly decided to establish a preparatory committee on an international criminal court, open to all states members of the United Nations, members of the UN specialized agencies, and members of the International Atomic Energy Agency, to elaborate on the draft statute prepared by the International Law Commission. Report of the International Law Commission on the Work of Its Forty-Sixth Session, 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994). The preparatory committee met in New York City March 25-April 12, 1996, and will meet again August 12-30 to report back to the General Assembly. If sufficient progress is made, a diplomatic conference will be convened to complete the drafting. Roger Clark is representing the Government of Western Samoa at these meetings. Criminal Law Forum will cover developments in a future issue.
4. Prosecutor-Elect Judge Louise Arbour recently delivered remarks in which she stressed this very point. U.N. Press Release, U.N. Doc. DH/2093 (4 Mar. 1996).
5. S.C. Res. 827, Preamble, U.N. SCOR, 48th Year, 1993 S.C. Res. & Dec. at 29, U.N. Doc. S/INF/49 (1993), reprinted in 5 Crim. L.F. 593 (1994).
6. Id.
7. See also The British War Crimes Trials in the Far East, 1946-1948 (R. John Pritchard ed., 21 vols., forthcoming 1997);
8. The British Trials of Suspected Italian War Criminals, 1945-1947 (R. John Pritchard & Jane L. Garwood-Cutler, 3 vols., forthcoming 1997);
9. The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East (R. John Pritchard ed., with Sonia Magbanua Zaide, 22 vols. 1981).
10. Roger Clark, Nuremberg, Tokyo, and Subsequent Developments, in The Law of War Crimes: A Synthesis of National and International Approaches (Tim McCormack & Gerry Simpson eds., 1996). Two of the defendants died during the trial; the case against another was not decided because of his mental condition; the remainder were convicted and seven of them were executed.
11. Of two odiers charged, one (Ley) committed suicide and another (Krupp) was found unfit to stand trial. Of the twenty-two Nuremberg defendants, three were acquitted, twelve (including Bormann, who was tried in absentia) were sentenced to death, three received life sentences, and four received shorter prison terms. Clark, supra note 7. The International Tribunal for the Former Yugoslavia has no power to hold trials in absentia. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) (setting out the Statute of the Tribunal), ¶ 101, U.N. Doc. S/25704 & Add.1 (1993), reprinted in 5 Crim. L.F. 597, 626 (1994) (citing International Covenant for Civil and Political Rights art. 14(3)(d)). It has, however, the controversial authority under Rule 61 of the Rules of Procedure and Evidence, U.N. Doc. IT/32 (1994) (as amended through Jan. 18, 1996), see 5 Crim. L.F. at 651, 670-71 (reprinting U.N. Doc. IT/32/Rev.3 (1995)), in case of failure to execute a warrant, of receiving the prosecution's evidence in open court. The Trial Chamber may then determine whether "there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment" (Rule 61(C)) and, if so, issue an international arrest warrant (Rule 61(D)).
12. The Rwanda Tribunal adopted Rules of Procedure and Evidence late in June 1995, see Andrew Kelly, Rwanda Genocide Tribunal Opens, Elects President, Reuters, June 27, 1995, available in LEXIS, World Library, Allnws File, Rule 61 of which provides similarly. Some human rights commentators believe that this power comes too close to trial in absentia. Indeed, the distinction seems to have been lost on the editors of USA Today, who captioned the photo accompanying a story about the Rule 61 proceedings against Radovan Karadzic "trial in absentia."
13. World: War Crimes, USA Today, June 28, 1996, at A8.
14. Reliable data on how many prisoners were tried are impossible to come by. About the most that can be said is that it reached a few thousand. The Federal Republic of Germany conducted a substantial number of its own trials over several decades; Japan conducted a handful in 1945. Clark, supra note 7. But the Allies subsequently retried most of those tried by Japan.
15. James C. McKinley, Jr., 76,000 Still in Jail in Rwanda Awaiting Trial in '94 Slayings, N.Y. Times, June 24, 1996, at A1, available in LEXIS, World Library, Allnws File.
16. Philip Gourevitch, Op-Ed, Justice in Exile, N.Y. Times, June 24, 1996, at A15.
17. But see Chris Klein, Professor Maps Plans to Tackle Rwanda Genocide Crime Backlog, Nat'l L.J., June 10, 1996, at A16 (discussing Prof. Madeline Morris's proposal to streamline the processing of suspects against whom the allegations are less serious).
18. Croat Is First to Be Convicted by Balkan War Crimes Panel N.Y. Times, June 1, 1996, § 1, at 4, available in LEXIS, World Library, Allnws File (Drazen Erdemovic entered a guilty plea on charges relating to the massacre of thousands of unarmed Muslim men when the Bosnian Serbs overran Srebrenica in the summer of 1995).
19. Marlise Simons, For First Time, Court Defines Rape as War Crime, N.Y. Times, June 28, 1996, at A1, available in LEXIS, World Library, Allnws File. On June 27, 1996, Rule 61 proceedings were begun against Karadzic and Mladic.
20. Milo Branic, Bosnia-Herzegovina: Legal Wrangle Obscures Hearing Start, Inter Press Serv., June 27, 1996, available in LEXIS, World Library, Allnws File (discussing Tribunal's compromise decision to permit Karadzic's lawyer to observe the proceedings).
21. Prosecutor v. Duško Tadić a/k/a "Dule," Case No. IT-94-1-T (10 Aug. 1995).
22. Article 9(2) of the Statute of the Tribunal provides: The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal. The issue of who has primacy continues to be controversial in the context of negotiations for a permanent court, usually referred to as the "complementarity" issue.
23. Prosecutor v. Duško Tadić a/k/a "Dule," Case No. IT-94-1-AR72 (2 Oct. 1995).
24. War Crimes Investigation Hampered by Lack of Resources, Agence France Presse, Dec. 16, 1993, available in LEXIS, World Library, Allnws File.
25. International Scientific and Professional Advisory Council of the United Nations Crime Prevention and Criminal Justice Programme (ISPAC), Prevention of Victimization, Protection and Assistance for Victims, and Conflict Resolution, Report of the Workshop Held at Onati, Spain, 13-16 May 1993.
26. Id. at 48-49.
27. GA. Res. 40/34, U.N. GAOR, 40th Sess., Supp. No. 53, at 213, U.N. Doc. A/40/53 (1985). The reasoning is that if the United Nations is prepared to make recommendations to states on how they should treat victims in the criminal process, it surely has an obligation to consider those same principles in any criminal process conducted under UN auspices.
28. Int'l Crim. Trib. for Former Yugo. Press Release, U.N. Doc. CC/PIO/005-E, Mrs. Terlingen Appointed as Coordinator of the Victims and Witnesses Unit (28 Mar. 1995).
29. Id.
30. Marlise Simons, Far from Former Yugoslavia, First War Crimes Trial Opens, N.Y. Times, May 8, 1996, at A10, available in LEXIS, World Library, Allnws File.
31. U.N. Doc. E/CN.15/1996/L.16/Rev.1 (1996).
32. See supra note 20.
33. See generally Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am J. Int'l L. 611 (1994).
34. A trend that is not yet apparent in the International Court of Justice, which has power under Article 66 of its Statute to receive statements from international nongovernmental organizations when it is considering a request for an advisory opinion. The Court has exercised this power only once, and recently declined to receive material from International Physicians for the Prevention of Nuclear War in the Legality of Nuclear Weapons proceedings, notwithstanding that organization's central role in instigating the World Health Organization's request for an advisory opinion on this issue. Shelton, supra note 26, at 624. Criminal Law Forum will cover the Nuclear Weapons case in Vol. 7, No. 2 (1996).
35. See his classic collection, Benjamin B. Ferencz, An International Criminal Court, A Step toward World Peace: A Documentary History and Analysis (1980).