The individual criminal responsibility of judicial organs in international law in the light of international practice

Netherlands International Law Review

Volumn 48, Issue 1, 2001, Pages 67-100

  Stirling Zanda, Simonetta ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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EID: 84856917384     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00001145     Document Type: Review

References (124)

1. A.V. Freeman, 'War Crimes by Enemy Nationals Administering Justice in Occupied Territory', 41 AJIL (1947) pp. 579-610 on interpretation and practice in regard to this disposition.
2. D. Boden, 'Le droit belge sous l'occupation', in M. Olender, ed., Le droit antisémite de Vichy, Revue Le genre humain, Nos. 30-31 (Paris, Seuil 1996) pp. 543-558.
3. Idem, at pp. 546-547.
4. Idem, Letter of the Supreme Court of 12 December 1940 to Interim Minister Riisnaes.
5. 'Jus Cogens' or 'Peremptory Norms of General International Law': R. Bernhardt, et al., eds., Encyclopedia of Public International Law, Vol. III (Amsterdam, Elsevier 1992) pp. 65-69.
6. International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda.
7. Law Reports, Vol. XV, pp. 58-63: industrialists, business men, doctors, nurses, camp wardens, camp inmates and executioners have also been prosecuted for a direct and unequivocal involvement in some crimes against humanity.
8. '. Issued. in order to establish a uniform legal basis in Germany for the prosecution of criminals and other similar offenders, other than those dealt with by the International Military Tribunal.', Law Reports, Vol. XV, p. 39.
9. Law Reports, Vol. XV, p. 42.
10. R.L. Miller, Nazi Justiz (Westport, Conn., Praeger 1995), lists innumerable instances of such participation which took the most varied forms and affected all aspects of social life.
11. The Rome Statute of the ICC on the question of prosecution gives competence to the Prosecutor (Art. 15), the Security Council (Art. 13(b)) and the Court (Art. 13).
12. M. Cherif Bassiouni, Crimes against Humanity in International Law (Dordrecht, Nijhoff 1992) pp. 208-216.
13. According to M. Cherif Bassiouni, op. cit. n. 16, p. 226, from 1946 to 1990 some 60,000 such prosecutions have been reported. However, R.L. Miller, op. cit. n. 14, p. 274 says: 'Before the mass of prosecutions of Nazi criminals came to an abrupt halt in the 1950s, German postwar judges had managed to sentence 5,288 people. Members of their own profession were not among them, however, although there was no lack of damning opinions from even the highest place concerning the role played by the legal profession from 1933 to 1945.'
14. I. Muller, Hitler's Justice, The Courts of the Third Reich, transl. D.L. Schneider (London, Tauris 1991) chs. 22 and 23, pp. 192-218.
15. Idem, at p. 250.
16. Idem, at pp. 256 et seq.
17. Proceedings by the United States Military Commission in Shanghai were brought for violation by Japanese military leaders of laws of war in relation to justice administration, Law Reports, Vol. V, pp. 65 et seq.
18. Law Reports, Vol. VI, p. 8.
19. See also Muller, op. cit. n. 18, at ch. 9, pp. 270 et seq.
20. Law Reports, Vol. VI, p. 16.
21. On the difference between a charge of conspiracy and one of acting in pursuance of a common design, see Law Reports,Vol. XV, pp. 98-99. See also infra nn. 52 and 53.
22. Law Reports, Vol. VI, pp. 104-105.
23. 'It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, the Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offence.', Law Reports, Vol. VI, p. 5. See on the question of conspiracy as an artifice to extend the IMT jurisdiction, C. Grynfogel, 'De Touvier a Papon, la complicité de crime contre l'humanité', 78 Rev.dr pen. et crim. (1998) pp. 758-779 at p. 760.
24. Law Reports, Vol. XV, p. 90.
25. See infra nn. 52 and 53.
26. Law Reports, Vol. VI, p. 73.
27. Klemm and Rothenberger had participated in drafting iniquitous laws and policies; as chief Public Prosecutor, Lautz had provided active cooperation in the enforcement of the Nacht and Nebel plan from 1942 to 1944; Mettgenberg had formulated secret, general and circular directives as had Von Ammon, in his quality of counsellor to the Ministry of Justice; as was the case with Joel who, as ministerial counsellor and chief Public Prosecutor of the Court of Appeals in Hamm (Westphalia) had reviewed 16 death sentences; Rothaug, chairman of the Court of Assizes, had made recommendations regarding treatment of Poles and Jews. Altstötter had been chief of the civil law and procedure division. See Law Reports, Vol. VI, pp. 10-26.
28. Law Reports, Vol. VI, p. 62.
29. Law Reports, Vol. VI, p. 50.
30. Vol. VI, p. 64; see also the commentator's remarks p. 88.
31. It might be that Courts acting upon the jurisdiction of Control Council Law No. 10 have given it, overall, the same interpretation as that which the ICTY panel in the Tadic (Merits) have given to their own Statute, which is that any crime against humanity should imply discriminatory conduct. See Neff, op. cit. n. 35, at p. 66.
32. Law Reports, Vol. VI, p. 83, fn. 3.
33. Law Reports, Vol. VI, p. 53.
34. See infra section 4.4.
35. See comments in Law Reports, Vol. VI, p. 90.
36. Law Reports, Vol. VI, pp. 97 et seq., and pp. 103-104.
37. Contra Law Reports, Vol. VI pp. 102-103.
38. Law Reports, Vol. VI, pp. 96 et seq.
39. Law Reports, Vol. VI, p. 106.
40. J.J. Paust, 'My Lai and Vietnam', 57 Mil. L Rev. (1972) p. 99-187 at pp. 165-169, speaks of 'efforts at defining the international standards of complicity' and relates that 'during the Diplomatic Conference on the 1949 Geneva Conventions it was even decided that such matters "should be left to the judges who would apply the national laws" enacted to punish gave breaches of the Conventions'. Paust quotes J. Pictet on the subject and gives several examples of judicial practice offering no specific 'guidelines used' to determine complicity.
41. C. Grynfogel, 'Les limites de la complicite de crime contre 1'humanit8', Rev.sc.crim. (1998) pp. 523-562 at pp. 525-527. Contrary to the commentator's opinion in the Law Reports, Vol. XV, p. 90, continental law and in particular French and Italian laws, do not include any crimes of conspiracy. French law knows the 'complot' (resolution arretee entre plusieurs personnes, Art. 412-2 CP), the 'association de malfaiteurs' (Art. 450-1), the 'bande organisee' (Art. 132-71) and the 'concertation' (Art. 431-1); these are however much more narrow notions, either because they are only aggravating circumstances or because their application is subject to very strict conditions. As for 'complicity', again it is not an autonomous concept and no charge of complicity can be brought separately from a crime which has not been actually committed or at least somehow planned and initiated: 'L'article 121-7 en efet, saisit ces activates individuelles multiples pour les rattacher, sous la qualification d'actes de complicite, k !'infraction qu elles tendaient a commettre, creant ainsi un lien etroit entre les agissements des auteurs principaux et ceux des autres intervenants' (p. 526).
42. Prosecutor v. Furundzija, 338 ILM (1999) pp. 356 et seq. The accused was charged 'with torture and outrages upon personal dignity, including rape'.
43. See J.J. Paust, et al., International Criminal Law: Cases and Materials (Durham, NC, Carolina Academic Press 1996) p. 29, for differences in vocabulary used in various international documents. The term 'complicity' is used in all legal doctrine as a general one covering aspects of participation to the principal's crime, while international law appears to have adopted those of 'aiding' and 'abetting'. The expression 'concerned in the murder' (or other offences) used by British military courts for war criminals seems to cover similar concepts (Furundzya case, at p. 357). Art. 4(1) of the Convention against Torture, however, speaks of 'complicity of participation in torture'.
44. Furundzya case, para. 230, p. 363.
45. Furundzya case, p. 365.
46. Furundzya case, p. 365.
47. Furundzya case, p. 365.
48. Grynfogel, loc. cit. n. 29, at pp. 767 et seq. cit. n. 29, at p. 759: murder
49. Grynfogel, loc. cit. n. 29, at p. 778.
50. For example Pohl Trial, Law Reports, Vol. XV, pp. 52-53.
51. Law Reports, Vol. VI, p. 50.
52. H. Bonnard, 'La jurisprudence penale', in Le Droit antisemite de Vichy, op. cit. n. 4, pp. 385396, at p. 395.
53. Grynfogcl, loc. cit. n. 53, at pp. 523-533.
54. Grynfogcl, loc. cit. n. 29, at pp. 772-773.
55. See also Paust, et al., op. cit. n. 55, at p. 25.
56. Torture is included in the list of crimes against humanity of the ICC Rome Statute, Art. 7(f).
57. Reg. v. Bow Street Magistrate, Ex. p. Pinochet (No. 3) (H.L.), [1999] WLR 9.4.1999, pp. 825 et seq. at p. 847.
58. 'It is true, as defendants contend, that German courts under the Third Reich were required to follow German law even when it was contrary to international law', Law Reports, Vol. VI, p. 49.
59. Art. 13 Draft Declaration on Rights and Duties of States, 1949. See also Exchange of Greek and Turkish Populations case, Advisory Opinion, PCIJ, Series B, No. 10, p. 20 (1925).
60. Law Reports, Vol. VI, p. 100.
61. See N. Bobbio, Giusnaturalismo e Positivismo Giuridico, 2nd edn. (Milano, Comuniti 1972) pp. 19-21; among others, R. Orecchia, 'La legge ingiusta', 29 Rivista di frlosofra del diritto (1952) pp. 478-491. More recently, see O. Camy, 'La doctrine italienne', in Le droit antisemite de Vichy, op. cit. n. 4, at pp. 497-539.
62. M. Troper, 'La doctrine et le positivisme (i propos d'un article de Daniele Lochak)', in D. Lochak, et al., Les usages sociaux du droit (Paris, PUF 1989) pp. 286-292; C. Chomienne, et al., Juger sous Vichy, Le genre humain, No. 28 (Paris, Seuil 1994), in part. D. Lochak,' Le juge doit-il appliquer la loi inique?'; Le droit antisemite de Vichy, op. cit. n. 4, 4th part, 'L'antisemitisme magistral', pp. 399-497.
63. Among others J. Dugard, Human Rights and the South African Legal Order (Princeton, Princeton University Press 1978).
64. See in general M.D.A. Freeman, Lloyd's Introduction to Jurisprudence, 6th edn. (London, Stevens and Sons 1994).
65. V.W. Friedmann, Legal Theory (London, Stevens and Sons 1949) pp. 125 et seq.; Bobbio, op. cit. n. 75, at pp. 101-126; Troper, op. cit. n. 76.
66. D. Lochak, 'tcrire, se taire. Reflexions sur I'attitude de la doctrine franpaise', in Le droit antisemite de Vichy, op. cit. n. 4, at pp. 433-462.
67. Bobbio, op. cit. n. 75, at pp. 106-107.
68. Troper, op. cit. n. 76, at p. 290.
69. For the three principles which dominate Ehrlich's theory in Die juristische Logik (Ttibingen, Mohr 1918), see Bobbio, op. cit n. 75, at p. 107.
70. M. Virally, La pensee juridique (Paris, LGDJ 1960) pp. VI-VII.
71. 'If a Law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, because it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called "natural law" in contrast to "positive law"', South West Africa case, ICJ Judgment of 1966, ICJ Rep. (1966), Dissenting opinion of Judge Tanaka, para. 298.
72. 'One of the objectives of the TRC (Truth and Reconciliation Commission) was the promotion of national unity and reconciliation in a spirit of understanding transcending the conflicts and divisions of the past, through investigating and establishing "gross violations of human rights" from 1 March 1960 to a cut-off date (which became 10 May 1994)', 'The Truth and Reconciliation Commission, and the Bench, Legal Practitioners and Legal Academics', 114 SALT (1997) pp. 15-110.
73. TRC, loc. cit. n. 87, at p. 31.
74. Prof. Fuller (infra n. 95) in the introduction to his article, 'Positivism and Fidelity to Law - A Reply to Professor Hart', 71 HLR (1958) p. 630 at pp. 633-634, speaks of this deficit of clarity.
75. D. Dyzenhaus, Hard Cases in Wicked Legal Systems. South African Law in the Perspective of Legal Philosophy (Oxford, Clarendon Press 1991). For this research, Dyzenhaus conducted a survey of adjudication in South Africa over a period of about 60 years.
76. M. Hartney, 'Dyzenhaus on Positivism and Judicial Obligation', 7 Ratio Juris (1994) pp. 44-57.
77. R.A. Shiner, 'David Dyzenhaus and the Holy Grail', 7 Ratio Juris (1994) pp. 56-71.
78. Hartney, loc. cit. n. 92, at p. 48: 'There is no evidence that any of the South African Judges believed that Common Law was ever immune to displacement by statute law.'
79. H.L.A. Hart, The Concept ofLaw, 2nd edn. (Oxford, Clarlendon Press 1994) p. 210.
80. The Concept of Law, Op. Cit. 97 292
81. Fuller, loc. cit. n. 95, at pp. 652 and 660.
82. Fuller, loc. cit. n. 95, at p. 655. However, Fuller would also have preferred, in specific cases, a retroactive statute, but not for the same reasons as Hart and Radbruch: 'Rather I would see such a statute as a way of symbolizing a sharp break with the past, as a means of isolating a kind of cleanup operation from the normal functioning of the judicial process' (p. 661).
83. Hart, loc. cit. n. 95, at pp. 606-615 and Fuller, loc. cit. n. 95, at pp. 661-669.
84. TRC, loc. cit. n. 87, at p. 22.
85. J. Dugard, 'The South African Judiciary and International Law in the Apartheid Era', 14 SAJHR (1998) pp. 110-126 at p. 111. The author explains further: 'Inspired by the Roman-Dutch writers they drew no distinction between international law and municipal law and applied rules from both legal orders with equal facility in domestic disputes with an international dimension.'
86. 'Judicial antagonism to international law was largely confined to those areas of international law that affected the political interests of the apartheid state. Politically neutral subjects with an international dimension were sometimes treated more positively.' Idem, at p. 113.
87. Hart, loc. cit. n. 97, at pp. 213-216.
88. N. Bobbio, La consuetudine come fatto normativo (Padova, CEDAM 1942) p. 81, speaks of,valid natural law'. In international law, G. Barile speaks of 'natural law in force': 'Il diritto internazionale non scritto dell época attuale potrebbe chiamarsi "diritto naturale vigente " intendendo tale frase, in se equivoca, non gia nel senso the detto diritto non sia una realta storica, ma nell'altro, ben diverso, the esso vige allo stato di fenomeno giuridico puro, immediatamente legato all' intera realta storica et non costretto in regole formalmente posie', 'Diritto internazionale e diritto interno', Part 111, La rilevazione e l'integrazione del diritto internazionale non scritto e la liberta di apprezzamento del giudice, 40 RD1(1957) pp. 141-229 at p. 155.
89. South-West Africa case, 18 July 1966,1CJ Rep. (1966) p. 6, Judge Tanaka's dissenting opinion, p. 298: 'As an interpretation of Article 38, paragraph I(c), we consider that the concept of human rights and of their protection is included in the general principles mentioned in that Article. Such an interpretation would necessarily be open to the criticism of falling into the error of natural law dogma. But it is undeniable that in Article 38, paragraph I(c), some natural law elements are inherent. It extends the concept of the source of international law beyond the limit of legal positivism according to which, the States being bound only by their own will, international is nothing but the law of the consent and auto-limitation of the State. But this viewpoint, we believe, was clearly overruled by Article 38, paragraph I(c), by the fact that this provision does not require the consent of States as a condition of the recognition of the general principles. States which do not recognise this principle or even deny its validity are nevertheless subject to its rule.'
90. This plea was put forward in other trials in relation to laws of war, see Law Reports, Vol. XV, pp. 185-186.
91. See infra, 5.4.
92. J.-P. Dubois, 'La jurisprudence administrative', in Le droit antisemite de Vichy, op, cit. n. 4, pp. 339-362 at p. 343.
93. Dugard, loc. cit. n. 104, at pp. 110-126.
94. TRC, loc. cit. n. 87, at p. 62.
95. Miller, op. cit. n. 14, at p. 112-113. See also R.A. Falk, The Role of Domestic Courts in the International Legal Order (Syracuse, NY, Syracuse University Press 1964) p. 104.
96. G. Fritz and J.-C. Fritz, -'Indigenes et "metis" sous la Me RBpublique', in Le droit antisemite de Vichy, op. cit. n. 4, at p. 74.
97. O. Camy, 'La doctrine italienne', in Le droit antisemite de Vichy, op. cit. n. 4, pp. 497-539, at p. 505. G.A. Belloni, 'La legge penale etiopica', 53 Schweizerische Zeitschrift fur Strafrecht (1939) pp. 154-164.
98. BVerwG, 22 March 1994, ZabRV (1996) pp. 471-472, where the German Administrative Federal Court declares that there is no doubt as to the fact that no international rule forbids a state to send back a refugee who tries to flee a civil war.
99. Law Reports, Vol. VI, pp. 91 et seq.
100. Law Reports, Vol. XV, pp. 161 et seq.
101. Law Reports, Vol. XV, p. 165.
102. See HR Committee General Comment 13 to Art. 14 ICCPR, in M. Cherif Bassiouni, ed., The Protection of Human Rights in the Administration of Criminal Justice: A Compendium of United Nations Norms and Standards (Irvington, NY, Transnational Publishers 1994) pp. 132-139. See also Arts. 6, 15 and 16; 1966 ICCPR, from which derogation is not allowed under any circumstance (Art. 4). See also Art. 6 ECHR, Art. 8 American Convention on Human Rigths and Art. 7 of the Rome Statute of the ICC: para. (e) speaks more generally of '[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law' as a crime against humanity 'when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack'.
103. Law Reports, Vol. XIV, pp. 49-85.
104. Law Reports, Vol. XIV, pp. 56-60.
105. Law Reports, Vol. XIV, pp. 57, 63 et seq., in part. pp. 67 et seq.
106. This point comes through particularly well in the submissions made by magistrates to the Truth and Reconciliation Commission established in 1993 to examine violations of human rights which occurred in the Apartheid years in South Africa. These submissions are of great interest as they represent a unique example of an effort originating from the judiciary itself, to analyse and explain - with various degrees of good will - their own administration of justice through a tormented period of history: 'Submission on the Role of the Judiciary under Apartheid', 115 SALT (1998) pp. 436-438; Dugard, loc. cit. n. 104, at pp. 110-126; TCR, loc. cit. n. 87, at pp. 15-110, p. 18.
107. Law Reports, Vol. XV, p. 160.
108. Law Reports, Vol. XV, pp. 157 et seq.
109. Law Reports, Vol. VI, p. 60.
110. G. Brand, author of the systematic summary, in Vol. XV, of the Law Reports, remarks that '[c]ourts have been less willing to punish persons accused of committing war crimes purely in the capacity of a prosecutor than they have been in the case of judges. This may arise out of a feeling that, while a judge has a duty to be impartial, a prosecutor is of course expected to do his best within certain limits, to secure a conviction. It may also be the result of a feeling that the acts of a prosecutor are more remote from the carrying out of sentence than are those of a judge' (p. 61).
111. See Control Council Law No. 10, Art. 11, 4(b), Law Reports, Vol. XV, p. 160, fn. 3.
112. Law Reports, Vol. VI, pp. 61-62.
113. Law Reports, Vol. VI, p. 78.
114. Permanent Military Tribunal at Strasbourg, 23 April to 3 May 1946, and Court of Appeal, 24 July 1946, Law Reports, Vol. III, pp. 23-55.
115. Law Reports, Vol. III, Annex II, pp. 93 et seq.
116. Proceedings against Semar were however separated from those against the five other accused, see Law Reports, Vol. III, p. 27.
117. Law Reports, Vol. III, pp. 93 et seq.
118. Law Reports, Vol. III, pp. 50 et seq. Applicable French Law was the Code de Justice Militaire, Code d'instruction criminelle and Code Penal.
119. Law Reports, Vol. III, p. 27.
120. Law Reports, Vol. III, pp. 54-55.
121. In the Autumn of 1944, Nacht and Nebel proceedings were withdrawn from courts and the whole operation transferred to the Gestapo.
122. Prosecutor v. Furundzya, 381LM (1999) p. 363.
123. Rome ICC Statute Art. 31 refers to necessary and reasonable action to avoid a threat of imminent death or of continuing or imminent serious bodily harm.
124. As Gustav Heiberg, Advocate at the Norwegian Supreme Court, explains: 'Maintaining the Supreme Court and submitting it, as a Norwegian Court, to German interests, would have represented the greatest of evils.' D. Feron's translation of various speeches on occasion of the reopening of the Supreme Court on 14 May 1945.