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Schabas, William A. --- "Regions, Regionalism and International Criminal Law" [2007] NZYbkIntLaw 2; (2007) 4 New Zealand Yearbook of International Law 3

Regions, Regionalism and International Criminal Law

William A Schabas^[*]

Criminal law is both regional and universal. On the one hand, it is inherently regional, an exercise of sovereignty by States that, while not watertight, is at the very least a fundamental tenet of international law. States are entitled to exercise criminal law jurisdiction over acts committed on their territory that they judge to be criminal, to the exclusion of all others, with some important and well-known derogations. Some examples: in a positive sense, where States purport to exercise jurisdiction over acts of their nationals committed on the territory of others, and in a negative one, where the territorial State withdraws because of immunity granted to certain special categories of individual, such as diplomats. But these exceptions merely confirm the general rule.

And yet criminal law makes claims to universality as well. Many serious crimes are in fact universally punished, with only minor differences in terms of definition, or in the technical aspects of prosecution, such as available defences and modes of participation. That the most serious crimes are mala in se rather than merely mala prohibita confirms the universality of criminal justice. Murder and rape will be punished wherever they are committed. Nevertheless, the monopoly of prosecution for such universal crimes remains regional or territorial, residing with the State within whose borders the act was perpetrated.

Alongside this dichotomy is another phenomenon, by which certain crimes are deemed exceptions to the rule of territorial jurisdiction. Here too, the rationale attests to a relationship between the regional and the universal, rather than some abstract principle of judicial globalisation. The exercise of universal jurisdiction, for serious ‘international crimes’, ranging from piracy to trafficking in persons to genocide, is justified when the State that would normally exercise jurisdiction fails to do so. Thus, universal jurisdiction once again confirms the fundamentally regional or territorial nature of criminal justice, by the very act of proposing itself as an exception.

Before proceeding further, a few words are necessary concerning the scope of the expression ‘international criminal law’. Since nation States began to exercise criminal law jurisdiction problems concerning conflicts of laws as well as mutual legal assistance have arisen. Although these phenomena are sometimes referred to as international criminal law, the subject of this paper is a much more recent development: the prosecution of so-called ‘international crimes’, whether this be by international tribunals, the courts of the State of territorial jurisdiction or those of a third State that invokes universal jurisdiction over the offence.

This essay will explore some aspects of international criminal law, as currently practised, with a view to identifying the existence of its regional dimension, if one indeed exists. It will examine the regional features of the past and existing institutions, and then consider whether regionalism in a structural sense may also have repercussions on the substantive norms themselves. But first, a few words on the concept that many might argue proves there is nothing regional about international criminal justice, and that it is the antithesis of regionalism: universal jurisdiction.

I. Universal Jurisdiction: Much Ado About Not Much

Universal jurisdiction is a subject much loved by post-graduate students, legal academics and human rights activists. There is an extensive literature on the subject, almost all of it enthusiastically salted with Latin maxims like erga omnes and jus cogens. It seems to be rather less appreciated by those who are actually charged with its implementation: the legislators who must enact enabling legislation, and the prosecutors and justice department officials tasked with organising the proceedings.

Universal jurisdiction has a relatively lengthy pedigree in treaty law, but until recently it was confined to crimes committed on the high seas or in some other transnational legal vacuum. Thus, given the absence of a territorial State or doubts about its identity, universal jurisdiction was recognised for certain offences, such as piracy and trafficking. This was the early form of ‘international criminal law’. More recently, universal jurisdiction has been justified on other grounds, although there is confusion about the primary rationale. This is the modern form of ‘international criminal law’. To some, it is the sheer scale and horror of the crimes concerned, such as genocide and crimes against humanity, that warrants universality. To others, universal jurisdiction is required because the State that would normally exercise territorial jurisdiction has failed to do so. Usually, this is because the State itself is complicit in the criminal acts. Practice concerning universal jurisdiction of this second type really begins with the Eichmann case.

Nazi war criminal Adolf Eichmann was kidnapped in Argentina by Israeli intelligence agents and smuggled to Israel to stand trial under legislation based upon the 1948 Genocide Convention. Eichmann argued that Israel could not exercise universal jurisdiction because this was contrary to international law, as expressed in the Genocide Convention itself. In effect, article VI of the Convention states:^[1]

Persons charged with genocide or any of the other acts enumerated in article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Israel had not even existed when the crimes with which Eichmann was charged had been committed, and it certainly could make no territorial claim.

Eichmann pointed to debates in the Sixth Committee of the General Assembly when article VI of the Convention was being adopted:

If the United Nations has failed to support universal jurisdiction for each country to try a crime of genocide committed outside its boundaries, but has expressly provided that, in the absence of an international criminal tribunal, those accused of this crime shall be tried by ‘a competent tribunal of the State in the territory of which the act was committed’, how, it is asked, may Israel try the accused for a crime that constitutes ‘genocide’?^[2]

The District Court recalled the words of the International Court of Justice, which, in its 1951 advisory opinion, declared that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on all States, even without any conventional obligation”.^[3] For the District Court, there was an important distinction between such principles, which applied even prior to adoption of article VI of the Convention, “which comprises a special provision undertaken by the contracting parties with regard to the trial of crimes that may be committed in the future”.^[4]

The Jerusalem District Court attempted to demonstrate that the drafters of article VI did not intend to confine prosecution of genocide to the territorial State. According to the Court, territorial jurisdiction was nothing more than a “compulsory minimum”. The Court wrote:^[5]

It is the consensus of opinion... that the absence from this Convention of a provision establishing the principle of universality (together with the failure to constitute an international criminal tribunal) is a grave defect in the Convention, which is likely to weaken the joint effort for the prevention of the commission of this abhorrent crime and punishment therefore, but there is nothing in this defect to lead us to deduce any rule against the principle of universality of jurisdiction with respect to the crime in question. It is clear that the reference in Article VI to territorial jurisdiction, apart from the jurisdiction of the non-existent international tribunal, is not exhaustive.

The Israeli court’s attempt to find support in the drafting history of the Genocide Convention was grotesquely unrealistic. The better view is that the Genocide Convention stood for the rejection, by the international community, of any notion of universal jurisdiction over the crime. The drafting of the Convention began in 1946, with the adoption of Resolution 96(I) by the General Assembly. Those who proposed the resolution wanted to entrench the principle of universal jurisdiction, and it featured in the draft that they initially presented. It included the following preambular paragraph:

Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern;

Still more importantly, the only operative paragraph in the draft resolution said:^[6]

Be it resolved that the United Nations Assembly draw the attention of the Social and Economic Council to the crime of genocide; and invite the Council to study this problem and to prepare a report on the possibilities of declaring genocide an international crime and assuring international co-operation for its prevention and punishment, and also recommending, inter alia, that genocide and related offences should be dealt with by national legislations in the same way as other international crimes such as piracy, trade in women, children and slaves, and others.

But all of the universal jurisdiction language was knocked out in the final version adopted by the General Assembly.^[7] The same fate befell initiatives aimed at a universal jurisdiction clause in the Convention which was adopted by the General Assembly two years later.^[8] The United Nations had clearly and unequivocally rejected the recognition of universal jurisdiction for genocide.

And so three years later, when the International Court of Justice referred to “the principles underlying the Convention are principles which are recognized by civilized nations as binding on all States, even without any conventional obligation”, it was surely not referring to universal jurisdiction. And yet this legal deus ex machina, the Israeli court’s discovery of universal jurisdiction in Eichmann, seems to have taken on a life of its own. It has become an almost unarguable authority for the proposition that the crime of genocide attracts universal jurisdiction. And by the same logic, scholars and human rights activists have extrapolated the principle to encompass crimes against humanity and war crimes. Experts no longer quarrel about the principle, but only about whether universal jurisdiction might be exercised in absentia^[9] or only in situations where the territorial State has failed to prosecute.^[10]

There is an intriguing case wending its way through the International Court of Justice where the legitimacy of universal jurisdiction under customary international law is being challenged. Nothing is more difficult to predict than the future, as Yogi Berra said, but it seems improbably that the Court could dismiss the exercise of universal jurisdiction for serious international crimes as being unfounded in international law. The last time that criminal law jurisdiction was the central issue in litigation before the International Court of Justice was the 1920s, when Turkey succeeded, by a close vote, in arguing that it was entitled to exercise passive personality jurisdiction over French sailors for the death of its own nationals in a maritime accident in international waters.^[11] The debate arose because France objected to its own nationals being charged in violation of the territorial principle. That is to say, the test for the legality of universal jurisdiction results from objection by the State of territory or nationality. To ask why this has not happened previously in public international law with respect to prosecution under universal jurisdiction is to answer the question. Universal jurisdiction is so rarely applied by States that the chances of a collision between the altruistic State and the State of nationality is exceedingly unlikely, especially when the low level of acceptance of jurisdiction of the International Court of Justice is factored into the equation. The Democratic Republic of Congo had initially raised the issue in its application against Belgium, but later withdrew the argument. For this reason, Democratic Republic of Congo v France is the judicial equivalent of a solar eclipse. Indeed, it is only proceeding to the Court because France accepted the gauntlet that the Congo threw down in asking it to consent to jurisdiction, the first time in the history of the Court that this has ever occurred.^[12] If the case proceeds, we may have a judgment on the issue in 2009.

States rarely exercise universal jurisdiction for reasons that are perhaps obvious. There is the extraordinary cost, and the difficulty of prosecuting a remote crime, not to mention priorities in dealing with their own domestic crime. Only a handful of successful prosecutions have taken place. Compared with the relatively positive record of international criminal tribunals, in terms of promoting effective measures to address impunity, universal jurisdiction would appear to be a rather poor investment. In virtually every case of its exercise, there has actually been a link between the State of prosecution and the territorial State, generally one resulting from a colonial past: Pinochet in Spain, the Rwandans in Belgium, some Serbs in Austria, and so on. Universal jurisdiction sometimes looks more like a case of ‘the Empire strikes back’ than a noble gesture to promote international justice.

All of this is intended not to dampen enthusiasm about universal jurisdiction, because if it can work it has much promise. Moreover, the evolution of so-called ‘custom’ on the subject, while implausible in a classic public international sense, is nevertheless quite stunning to the extent that what were initially exaggerated claims about opinio juris and State practice, along the lines of the Eichmann decision, have not really been challenged and are now well accepted. But it cannot be gainsaid that universal jurisdiction has generated more heat than light. Suggesting it is evidence of the universality of law and therefore of the irrelevance of regionalism is a poor argument.

II. Regionalism in the Structure of INTERNATIONAL CRIMINAL TRIBUNALS

The international tribunal called for in the Treaty of Versailles was not even regional, it was ad hominem:^[13]

The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.

It was never in fact established. The first truly international criminal tribunal in our era to be set up, at Nuremberg, was charged with trying offences of “no particular geographical location”.^[14] Nevertheless, it was also described as being for the “prompt trial and punishment of the major war criminals of the European Axis”,^[15] an obviously regional concept. It might well have been called the ‘International Military Tribunal for Europe’, because in practice, that is the region with which it was concerned. The sister tribunal, whose seat was in Tokyo, was more explicitly identified by region: the International Military Tribunal for the Far East.^[16]

Region has been the defining characteristic of the modern generation of international tribunals. Thus, the International Criminal Tribunal for the former Yugoslavia was established to try “serious violations of international humanitarian law committed in the territory of the former Yugoslavia”.^[17] The International Criminal Tribunal for Rwanda was defined with respect to the “territory of Rwanda” but in addition, and secondarily, for “Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States”.^[18] The notion of ‘neighbouring States’ has never been defined, because the Prosecutor has not in fact attempted to deal with crimes committed outside of the territory of Rwanda. Rwanda is bordered by the Democratic Republic of Congo (which was known as Zaire in 1994), Uganda, Tanzania and Burundi. But ‘neighbouring’ States might be taken as a larger concept, and could also include Kenya, for example. According to one of the United Nations lawyers involved in drafting the Statute, “the Council envisaged mainly the refugee camps in Zaire and other neighbouring countries”.^[19] The jurisdiction was apparently extended to ‘neighbouring States’ because in the aftermath of the 1994 genocide, when the extremist Hutu militia and government forces had been driven from Rwandan territory, they continued to kill and intimidate civilians in refugee camps close to Rwanda’s borders.^[20]

During the drafting of the Statute of the International Criminal Tribunal for Rwanda, Uganda expressed concern that “its judicial system has primary and supreme jurisdiction and competence over any crimes committed on Ugandan territory by its citizens or non-citizens, at any particular time”. Uganda said it would accept language in the draft statute limiting the jurisdiction and competence of the proposed tribunal to Rwandan territory “and the territory of those member States which expressly declare acceptance of such jurisdiction”.^[21] Zaire also had objections on this point, but proposed instead that the phrase “territory of neighbouring States” be replaced by the larger concept of “territory of States Members of the United Nations”. Zaire noted that the draft statute implied that neighbouring States would be required to concede jurisdiction to the tribunal, and that it could not accept the provision:^[22]

unless the obligation to waive jurisdiction in favour of the International Tribunal is imposed on all States Members of the Untied Nations and is not limited only to neighbouring States, which are already suffering under the burden of the events inflicted on them by the crisis in Rwanda.

The third of the United Nations international criminal tribunals, the Special Court for Sierra Leone, is circumscribed by “the territory of Sierra Leone”.^[23] Its most celebrated defendant, former Liberian President Charles Taylor, was initially charged with “provid[ing] financial support, military training, personnel, arms, ammunition and other support and encouragement” to rebel combatants within Sierra Leone, all as part of a “joint criminal enterprise” whose purpose was “to obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone”.^[24] The indictment said that “[a]ll offences alleged herein were committed within the territory of Sierra Leone” but it is never in fact alleged that Taylor was every physically within the territory, nor is there anything in open source materials commonly available to suggest this was the case.^[25] An amended indictment, upon which the trial is proceeding, was premised on the charge that members of various paramilitary organisations within Sierra Leone “assisted and encouraged by, acting in concert with, under the direction and/or control of, and/or subordinate to” Charles Taylor were responsible for burning civilian property, killing civilians, rape and sexual slavery, physical violence against civilians, conscripting or enlisting child soldiers. The amended indictment removes the claim that all acts were committed on the territory of Sierra Leone.^[26] But even if nothing Taylor actually did took place on the territory of Sierra Leone, he may well be found guilty because of the effects of his acts within the territory.

The most recent of the United Nations criminal tribunals is the Special Tribunal for Lebanon. It has yet to be formally created, although a draft statute was endorsed by the United Nations Security Council in November 2006. It is targeted at a single act, the assassination of Rafiq Hariri, which occurred in Beirut in February 2005, although the draft agreement between the United Nations and the Government of Lebanon contemplates the possibility that it may eventually prosecute other similar acts committed “in Lebanon”.^[27] The proposed instruments do not define the territorial jurisdiction of the Court, and leave open the possibility of prosecution for acts committed outside Lebanon to the extent that the accused are “persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons”. The territorial nexus seems implied if not explicit. There may well be charges related to effects jurisdiction, perhaps directed against officials in neighbouring Syria, much as in the case of Charles Taylor.

III. The International Criminal Court: Universal in Theory, Regional in Practice?

Finally, there is the International Criminal Court, the only one of these modern institutions with a truly universal vocation. The Court may exercise jurisdiction pursuant to a referral by the Security Council,^[28] and to that extent its territorial scope is probably unlimited. In the one referral to date, the Security Council referred the “situation in Darfur” to the Court.^[29] While the referral was being debated, the United States mooted as an alternative the establishment of a regional African criminal court, presumably operating under the aegis of the African Union and possibly as a specialised chamber of the African Court of Human and Peoples’ Rights. It has probably been assumed that the Security Council referral confers jurisdiction over a territory within the sovereign State of Sudan, although this is not spelled out in the resolution. Arguably, the “situation in Darfur” might extend to neighbouring States, such as Chad, in much the same way as the Council found the “situation in Rwanda” to concern a number of countries. Otherwise, and absent Security Council intervention, the Court may only exercise jurisdiction over the territory of a State party, or over nationals of States parties elsewhere in the world.^[30] This personal jurisdiction must be the only way the Court could address crimes committed on the high seas, or in Antarctica, or in outer space.

Although the Court now has 104 States parties, in all continents of the planet, its work to date has been confined to a very limited tranche of sub-Saharan Africa. The Prosecutor has decided to proceed with investigations into three ‘situations’, all of them in contiguous States: Sudan (Darfur), Uganda and the Democratic Republic of Congo. In each case he has applied to a Pre-Trial Chamber of the Court for arrest warrants or summonses,^[31] and one accused, a Congolese warlord, is currently in custody in The Hague. In yet another neighbouring country, the Central African Republic, he has solicited a referral by the State in question although he has yet to decide whether to proceed with an investigation.^[32] Thus, although formally universal, the International Criminal Court has shown itself to be quintessentially regional in nature.

The Prosecutor has said that other situations are being studied. He has commented publicly on two, which he has declared to be unworthy of further attention.^[33] Nevertheless, at present it seems rather remarkable that the focus is on such a limited region. It seems unsatisfactory to account for this by mere happenstance. Several somewhat contradictory explanations seem plausible, and each may have some validity. First, Central Africa is a region that has been wracked with conflict for decades. African States, particularly those south of the Sahara, have embraced the Court enthusiastically, ratifying the Rome Statute in numbers that are second only to those of Europe. They may well have rallied to the Court out of frustration with the existing international institutions, including the Security Council and the African Union, whose initiatives have proven to be unable to address conflict in the region in a satisfactory manner. It is as if Africa has volunteered itself for the International Criminal Court, and for good reason.

Except that most of the developments that have put Central Africa on the docket of the Court actually result from initiatives in The Hague or New York. It is true that the situations in Uganda, Democratic Republic of Congo and Central African Republic were referred to the Prosecutor in accordance with article 14 of the Rome Statute, and to that extent the African States themselves took the lead. But it is also well known that the so-called referrals were actually actively solicited by the Prosecutor.^[34] Thus, Africa may have selected itself, but it was also selected. Surely Central Africa, a region whose governments were often compliant to requests from rich donor States in the north, was a tempting target of opportunity for a Court in search of defendants. To the extent that sub-Saharan Africa may have been designated by the Court out of expediency, this unofficial regional focus may eventually discredit the institution in the eyes of many countries. The Court should surely be concerned with perceptions about its regional focus, and suspicions about the motivation behind this. The legitimacy of an institution whose predominantly white judges from Europe and America mete out justice to black Africans at the initiative of a white prosecutor from South America surely depends on the argument that it is in fact universal in nature. But the Court seems to be universal in name only.

The closest that the text of the Rome Statute comes to addressing regional issues is in its requirement that the judiciary manifest “[e]quitable geographical representation”,^[35] although this is only one of the relevant criteria to be considered in their selection. Equitable geographic representation was accomplished in a rather mechanical and unsatisfactory manner by the establishment of a recommended minimum number of judges from each of the regions recognised within the United Nations system. For the purposes of the exercise, in electing the 18 judges, States parties were required to vote for a minimum of three candidates from the five regions, namely Africa, Asia, Eastern Europe, Latin America and Caribbean and “Western European and Other”.^[36] The classification is a Cold War anachronism, and provides only the most approximate geographic representation. New Zealand, Canada and Australia are counted among the “Western European and Other” group, for example. Europe in effect gets two regions, not one, because of the special recognition of the “Eastern European” group, most of whom are now either members or candidates for the European Union.

The result of the first elections was that two regions, Asia and Africa, achieved the minimum of three judges but no more, and one group, Eastern Europe, had only two judges. One of the Asian group judges was actually from Cyprus, because for historic reasons that is the group to which Cyprus has been assigned in the United Nations. Cyprus is of course a member of both the Council of Europe and the European Union. The other three groups achieved more than the three-judge minimum. The Western European and Other group was the most successful, with five judges, or six, if we count the Cypriot. At the second round of elections, held in early 2006, one Asian judge was not re-elected. His place was taken by a Bulgarian.

The United Nations classification is more about politics than it is about geography. If geographic representation is viewed in more familiar terms, rather than from the perspective of the fictitious construction of the United Nations, the results of the elections now look as follows:

Geographic representation is not, of course, an exact science. Nevertheless, two anomalies stand out, Europe and Africa, the former grossly overrepresented, the latter terribly underrepresented. Europe accounts for slightly more than one-third of the membership, but it has half the judges. Africa accounts for slightly less than one third, and it has one-sixth of the judges. The largest State party of the Court, in terms of population, Nigeria, with more than 100 million inhabitants, isn’t even represented.

The United Nations ad hoc Tribunals have done a better job at ensuring a regional ‘look’. Thus, the International Criminal Tribunal for Rwanda sits in Africa, two of its three presidents have been African, and its current Prosecutor is African as are many of its judges. International in nature, it nevertheless reflects the regional focus of its activities. The same can be said of the International Criminal Tribunal for the former Yugoslavia which, while drawing judges from around the world, is predominantly European in composition, a fact that nobody finds surprising or objectionable.

By contrast, the International Criminal Court fares rather poorly. This is especially striking when one considers that all of the situations being investigated are in Africa, and that all of the persons charged with crimes are African. Although it was never expressed so vulgarly, the idea of a court from the North that would do justice in the South was not entirely absent from the discussions leading to adoption of the Rome Statute. It was inherent in the logic that underpinned the positions of many ‘like-minded States’ and even important human rights NGOs. This manifested itself in two ways: the number of States required for the Rome Statute to enter into force, and the jurisdictional basis of the Court. The threshold for entry into force of the Rome Statute was ultimately set at 60.^[37] But many argued that the number should be much lower – 20 was the position taken by many human rights NGOs – because they conceived of a Court whose existence would be predicated upon the adhesion of a relatively small number of “Western European and Other” States. Of course, the counterpart to this low threshold was the argument that the Court should also be able to exercise jurisdiction on the basis of universality. Proponents of universal jurisdiction argued that this would be the only way to have a Court with the capability of exercising jurisdiction where serious human rights abuses were taking place.

Both positions proved to be ill-founded. The relatively high threshold for entry into force did not prove to be a problem at all, and 60 ratifications were obtained by April 2002, less than four years after adoption of the Rome Statute. The rejection of universal jurisdiction in favour of a system predicated upon territorial and active personality jurisdiction probably proved to be a blessing rather than a shortcoming. It gave States an incentive to ratify the Statute, in that this was the only way to ensure that it could apply to their own territory. If the Court had been based on universal jurisdiction, many States would have seen no advantage to ratification, because the Statute would apply in any event.^[38] But ill-founded or not, the point here is that the proponents of these positions were, implicitly if not expressly, proposing a vision whereby a relatively small number of rich States in the global North would inflict ‘international’ justice upon a much larger number of poor States in the global South.^[39]

There is one somewhat facetious dimension to this geographic distortion in the operation of the International Criminal Court. By virtue of an agreement with the Special Court for Sierra Leone, the International Criminal Court is also responsible for the imprisonment of Charles Taylor. In effect, it has a contract with the Special Court for Sierra Leone to provide much of the infrastructure for Taylor’s detention and trial. As a result, Taylor shares a wing of the Scheveningen penitentiary with Charles Lubanga, the first defendant of the International Criminal Court. The two are in fact joined by a third African, Michel Bagaragaza, who is charged with genocide before the International Criminal Tribunal for Rwanda. Bagaragaza is cooperating with the Prosecutor, and for that reason has been removed from the Tribunal’s detention facility in The Hague. Shortly after his arrival in The Hague, Charles Taylor complained about the “Eurocentric” food served in the Court’s Detention Centre.^[40] A West African cook has since been recruited in order to accommodate his dietary preferences and, presumably, those of his two cellmates. Perhaps in the future, the detention unit of the International Criminal Court will offer cosmopolitan menus, rather like a food court in a suburban mall!

When the Security Council was debating how to prosecute persons suspected of committing atrocities in Darfur, in February and March 2005, the American suggestion of a regional African court was not taken very seriously because it was perceived as a gambit aimed at the International Criminal Court. The circumstances were unfortunate, because the idea surely deserves more serious consideration. If indeed the International Criminal Court is to focus its energies on a sub-region within Africa, does it not make sense that its personnel, including its judges, come from the region, and that it be located nearby.

Others have persuasively argued that regional problems of criminality deserve regional approaches.^[41] According to William Burke-White:^[42]

National and supranational enforcement each offer various benefits and drawbacks that are in inherent tension. Regional enforcement of international law, however, would be situated at a unique midpoint between the national state and the international system. Regionalization could, therefore, provide a hitherto unavailable means of balancing the benefits and dangers of both supranational and national enforcement. In terms of cost, legitimacy, political independence, and judicial reconstruction, regionalization may be a normatively preferable means of enforcing international criminal law. To that extent, regionalization merits attention as a viable part of a system of international criminal law enforcement.

Professor Burke-White argues for a regional approach because of the physical proximity to the alleged crimes, something of especial importance when the objective of restorative justice is taken into account. He also points to the usefulness of a regional approach in terms of the legitimacy of international tribunals. Finally, there may also be significant financial benefits to a regional approach. Many of these arguments are often invoked in support of so-called ‘hybrid tribunals’, institutions which, while not defined in terms of regionalism, nevertheless have many affinities to the proposed regional criminal courts. William Burke-White’s comprehensive article also notes that regional mechanisms may be better equipped to take into account variations in procedural traditions. The Special Tribunal for Lebanon provides a good example of this; the Security Council has crafted a procedure regime based very largely upon the French derived system in force in Lebanon, and one at considerable variance with the existing, largely adversarial, models.^[43]

IV. Normative Regionalism

The paradigm for regional institutions, operating in parallel with a universal scheme, is the international human rights system. Although it began with a universal normative declaration – the Universal Declaration of Human Rights^[44] – the first great regional system, built around the European Convention on Human Rights,^[45] was flourishing more than a decade before the United Nations human rights treaties had even become operational. Today, the treaty-based mechanisms of the United Nations operate in synergy with several regional human rights systems, notably those of the Council of Europe, the Organisation of American States and the African Union.

Although there has been much concern in recent years about the ‘proliferation’ of international legal institutions, it seems to have been only beneficial as far as the protection of human rights is concerned. This is not to say that the relationship between the regional and the universal is entirely seamless. With respect to some issues, there is significant normative variation. For example, the famous ruling of the European Court of Human Rights built upon the “death row phenomenon”,^[46] followed enthusiastically by the Judicial Committee of the Privy Council,^[47] has been more or less expressly rejected by the Human Rights Committee.^[48] This is a case of different tribunals reaching different conclusions but in the interpretation of what is essentially the same norm, the prohibition of inhumane treatment.

Sometimes, the norms themselves vary, either explicitly or by implication. The European Convention on Human Rights authorises derogation from the right to life with respect to “lawful acts of war”,^[49] whereas the non-derogation provision in the International Covenant on Civil and Political Rights^[50] makes no mention of war whatsoever and, arguably, sets a more demanding standard. A clear example of express normative variation appears in the freedom of expression provisions of the international instruments. The American Convention on Human Rights takes a considerably more stringent view of freedom of expression than the equivalent instruments of the European and United Nations systems. It insists that freedom of expression “shall not be subject to prior censorship but shall be subject to subsequent imposition of liability”,^[51] a norm that is almost certainly at odds with the duty to prevent hate speech set out in article 20 of the International Covenant on Civil and Political Rights.

Transposing this discussion to the context of international criminal law, it is intriguing to consider whether there may be regional differences in the substantive law. Although we are concerned with “the most serious crimes of concern to the international community as a whole”, to borrow the language used in the preamble of the Rome Statute, could not such concerns vary somewhat depending upon the region? History has proven that no region has a monopoly on the crimes of genocide or ethnic cleansing, nor is any region free of their scourge. But some crimes, such as the enlistment and conscription of child soldiers, may be more regional in scope. In ruling on issuance of the arrest warrant against Thomas Lubanga, Pre-Trial Chamber I of the International Criminal Court devoted considerable attention to the issue of “gravity” as a condition for the admissibility of the case.^[52] In assessing gravity, the Pre-Trial Chamber said that this would be evaluating taking into consideration the “social alarm” surrounding the type of crime which, in that case, was the enlistment and conscription of child soldiers.^[53] Obviously, “social alarm” may vary from one region to another. What is alarming in one part of the world may not be so in another.

Some crimes seem to invite consideration of cultural differences, suggesting a regional perspective may be of some relevance. Acts that are said to constitute torture or cruel, inhuman or degrading treatment seem to have a necessary element of such subjectivity. Recall the famous ruling of the European Court of Human Rights concerning corporal punishment, in which the English judge expressed equanimity about the practice of birching, something he had himself experienced as a boy, whereas the continental judges, whose vision prevailed in the judgment, were shocked.^[54]

The European Court of Human Rights has developed its ‘margin of appreciation’ doctrine as a technique to avoid determining issues upon which there is great regional diversity within Europe itself. For this reason, it refuses to take a position on such issues as, for example, the prohibition of the wearing of headscarves.^[55] Might not international criminal justice institutions do the same? The crime against humanity of persecution provides a good example here. It is used to prosecute a broad range of human rights abuses that are the result of a discriminatory attack on civilian populations. Some crimes of persecution are not criminal acts under domestic law, per se, unlike other crimes against humanity such as murder and rape, and they only become so when they are committed as part of such a discriminatory attack. Arguably, denying members of a religious group access to education or imposing other significant consequences because they insist upon certain sartorial traditions could be deemed an act of persecution. Taken from the opposite perspective, we would have little difficulty understanding that imposing a requirement upon certain religious groups that they dress in a certain manner – wearing a yellow star, for example – might constitute a crime of persecution. But would the International Criminal Court withdraw from addressing such crimes out of concern that its approach might not resonate in the same way in all parts of the world? In other words, is there also a ‘margin of appreciation’ applicable to the definition of international crimes?

Another example reflects evolving visions of human rights and equality which are not shared universally. Until recently most States, even modern democracies with developed economies, punished homosexual acts between consenting adults. Since repealed in many jurisdictions, and declared contrary to fundamental rights in others,^[56] such behaviour nevertheless remains criminalised in many parts of the world. Precisely because of regional differences, it is doubtful that the Rome Statute could be brought to bear. The crime against humanity of persecution involves measures taken “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law”.^[57] The requirement of universal impermissibility would probably exclude acts of persecution based upon sexual orientation from the ambit of crimes against humanity, at least as they are contemplated by the Rome Statute at the present time. If there were a regional approach to international criminal law, however, legislation that criminalised homosexual acts might well amount to a crime against ‘European humanity’. Just as we have regional differences in what constitute ordinary criminal acts, should we not also contemplate the possibility of regional differences in what amount to crimes against humanity? Or does the very phrase ‘crimes against humanity’ necessarily dictate a homogenisation of substantive norms? This search for the lowest common denominator has always been one of the best justifications for allowing regional systems of human rights to develop, and the same logic ought to apply to international criminal law.

V. Conclusions

This essay has sought only to stimulate consideration of the regional issues involved in international criminal justice, be they organisational, procedural or substantive. The debate about the usefulness of regional criminal justice institutions has been somewhat short-circuited because it was put forward by the United States as an alternative to the International Criminal Court. And yet there is much to be said for a regional approach, as William Burke-White has pointed out in his most useful article on the subject.

It seems as if the issue may track developments in the cognate field of international human rights. There, the normative approach was predicated upon universality. Over time, space has been left for a degree of regional variation, both inter- and intra-regional. The margin of appreciation has proven a useful mechanism in this context. Gradually we have come to accept the useful and constructive results of interaction between the universal and the regional in the field of human rights. The same evolution would seem to be both likely and desirable within international criminal law.

^[*] Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights. This paper is based upon speaking notes for a keynote lecture delivered at the international conference on Regionalising International Criminal Law, organised by the International Law Group, University of Canterbury, Christchurch, New Zealand, 18-20 August 2006.

^[1] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

^[2] A.-G Israel v Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), para 20.

^[3] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 16.

^[4] A.-G Israel v Eichmann (1968) 36 ILR 5 (District Court, Jerusalem), para 22.

^[5] Ibid para 25.

^[6] GA Res 96(I), The Crime of Genocide, UNGAOR, 1^st sess, 55^th plen mtg, UN Doc A/BUR/50 (1946).

^[7] GA Res 96(I), ibid.

^[8] UN Doc A/C.6/SR 100.

^[9] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Separate Opinion of President Guillaume, ICJ Rep (14 February 2002); Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Rep (14 February 2002).

^[10] Claus Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’ (2006) 4(3) Journal of International Criminal Justice 561.

^[11] SS Lotus (France v Turkey) [1927] PCIJ Ser A No 10 (Judgment No 9) (7 September 1927).

^[12] Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v France) Application, ICJ Rep (9 December 2002).

^[13] Treaty of Peace between the Allied and Associated Powers and Germany, opened for signature 28 June 1919, TS 4 (entered into force 10 January 1920) (“Treaty of Versailles”), art 227.

^[14] Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), adopted 8 August 1945, 82 UNTS 279 (“London Agreement”), art 1.

^[15] Ibid Annex, art 1.

^[16] Special Proclamation: Establishment of an International Military Tribunal for the Far East, adopted 19 January 1946, TIAS No 1589 (“Charter of the International Military Tribunal for the Far East”), Annex.

^[17] SC Res 827, UN SCOR, 3217^th mtg, UN Doc S/Res/827 (1993), art 1.

^[18] Article 1 of the Statute of the International Criminal Tribunal for Rwanda, SC Res 995, reprinted in 33 ILM 1590 (1994).

^[19] Larry D Johnson, ‘The International Tribunal for Rwanda’ (1996) 67 International Review of Penal Law 211, 222.

^[20] Jaana Karhihlo, ‘The Establishment of the International Tribunal for Rwanda’ (1995) 64 Nordic Journal of International Law 683, 698.

^[21] Letter dated 31 October 1994 from the Chargé d’affaires a.i. of the Permanent Mission of Uganda to the United Nations Addressed to the President of the Security Council, UN Doc S/1994/1230 (1994).

^[22] Letter dated 7 November 1994 from the Chargé d’affaires a.i. of the Permanent Mission of Zaire to the United Nations Addressed to the President of the Security Council, UN Doc S/1994/1267 (1994).

^[23] SC Res 1315, UNSCOR, 4186^th mtg, UN Doc S/Res/1315 (2000) (“Statute of the Special Court for Sierra Leone”), art 1.

^[24] Prosecutor v Taylor (Case No SCSL-01-I), Indictment, 3 March 2003.

^[25] After his arrest by the Special Court in mid-2006 he was briefly in Sierra Leone before his transfer to The Hague to stand trial.

^[26] Prosecutor v Taylor (Case No SCSL-01-I), Amended Indictment, 17 March 2006.

^[27] Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, UN Doc S/2006/893 (2006), Annex 1, art 1(1). Also: Statute of the Special Tribunal for Lebanon, UN Doc S/2006/893 (2006), Annex 1, Attachment, art 1.

^[28] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, UN Doc A/CONF 183/9 (entered into force 1 July 2002) (“Rome Statute”), art 13(b).

^[29] SC Res 1593, UN SCOR, 5158^th mtg, UN Doc S/Res/1593 (2005), operative para 1.

^[30] Rome Statute, art 12(b).

^[31] Situation in Uganda (Case No ICC-02/04-53), Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005; Situation in Uganda (Case No ICC-02/04-01/05-1-US-Exp), Decision on the Prosecution’s Application for Warrants of Arrest under Article 58 (12 July 2005), 7; Situation in Uganda (Case No ICC-02/04-01/05), Decision on the Prosecutor’s Application for Unsealing of the Warrants of Arrest (13 October 2005), para 14; Situation in Darfur, The Sudan (Case No ICC-02/05), Prosecutor's Application under Article 58(7) (27 February 2007).

^[32] Situation in the Central African Republic (Case No ICC-01/05-1), Prosecution’s Report Pursuant to Pre-Trial Chamber III’s 30 November 2006 Decision Requesting Information on the Statute of the Preliminary Examination of the Situation in the Central African Republic (15 December 2006).

^[33] Prosecutor of the International Criminal Court, ‘Letter of Prosecutor dated 9 February 2006’ (Situation in Venezuela); Prosecutor of the International Criminal Court, ‘Letter of Prosecutor dated 9 February 2006’ (Situation in Iraq).

^[34] Paola Gaeta, ‘Is the Practice of “Self-Referrals” a Sound Start for the ICC?’ (2004) 2 Journal of International Criminal Justice 949.

^[35] Rome Statute, art 36(8)(a)(ii). There is a similar requirement for the Bureau of the Assembly of States Parties: art 112(3)(b). The Rules of Procedure and Evidence also recognise the “principle of equitable geographical distribution” in assigning prisoners to serve their sentences in national prisons: International Criminal Court, ‘Rules of Procedure and Evidence’, Document ICC-ASP/1/3, 10–107: rule 201(a).

^[36] International Criminal Court Assembly of States Parties, Procedure for the Nomination and Election of Judges, the Prosecutor and Deputy Prosecutors of the International Criminal Court, Resolution ICC-ASP/1/Res.3 (2002), para 3(b).

^[37] Rome Statute, art 126(1).

^[38] This argument has been developed in William A Schabas, ‘The International Criminal Court: The Secret of its Success’ (2001) 12 Criminal Law Forum 415.

^[39] With apologies for another geographic oversimplification. New Zealand and Australia are obviously comprised within the ‘global North’.

^[40] Prosecutor v Taylor (Case No SCSL-2003-01-PT), Transcript of Status Conference (21 July 2006).

^[41] Timothy H Goodman, ‘Leaving the Corsair's Name to Other Times: How to Enforce the Law of Sea Piracy in the 21st Century Through Regional International Agreements’ (1999) 31 Case Western Reserve Journal of International Law 139; Samuel P Menefee, ‘The New "Jamaica Discipline": Problems with Piracy, Maritime Terrorism and the 1982 Convention on the Law of the Sea’ (1990) 6 Connecticut Journal of International Law 127; Linda W Tai, ‘Music Piracy in the Pacific Rim: Applying a Regional Approach Towards the Enforcement Problem of International Conventions’ (1995) 16 Loyola of Los Angeles Entertainment Law Journal 159.

^[42] William W Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal 729, 730.

^[43] Report of the Secretary-General on the establishment of a special tribunal for Lebanon, UN Doc S/2006/893 (2006).

^[44] GA Res 217 (III)A, International Bill of Human Rights: “Universal Declaration of Human Rights”, UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (1948).

^[45] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (“European Convention on Human Rights”).

^[46] Soering v United Kingdom et al, ECtHR, 7 July 1989, Series A, Vol 161.

^[47] Pratt et al v Attorney General for Jamaica et al[1993] UKPC 37; , [1993] 4 All ER 769 (JCPC).

^[48] Errol Johnson v Jamaica (No 588/1994), UN Doc CCPR/C/56/D/588/1994 (1994).

^[49] European Convention on Human Rights, art 15(2).

^[50] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”), art 4(2).

^[51] American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978), art 13(2).

^[52] In accordance with article 17(1)(d) of the Rome Statute.

^[53] Prosecutor v Lubanga (ICC-01/04-01/06-8), Decision on the Prosecutor’s Application for a Warrant of Arrest (10 February 2006).

^[54] Tyrer v United Kingdom, 25 April 1978, Series A, No 26[1978] ECHR 2; , 2 EHRR 1.

^[55] Şahin v Turkey (Application No 44774/98), 10 November 2005.

^[56] Lawrence v Texas[2003] USSC 4776; , 539 US 558, 123 SCt 2472, 156 LEd2d 508 (2003).

^[57] Rome Statute, art 7(1)(h) (italics added).