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New Zealand Yearbook of International Law

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Burchill, Richard --- "International Criminal Tribunals at the Regional Level: Lessons from International Human Rights Law" [2007] NZYbkIntLaw 3; (2007) 4 New Zealand Yearbook of International Law 25

International Criminal Tribunals at the Regional Level: Lessons from International Human Rights Law

Richard Burchill[∗]

I. Introduction

With the entry into force of the Rome Statute for the International Criminal Court the system of international criminal law took a major step in its institutional development. Even though global efforts for dealing with international criminal activity have a long history, institutional development at the international system level is a relatively recent phenomenon. The International Military Tribunals of World War II were not replicated for some 40 years, demonstrating the reluctance of States to agree upon the creation of institutional machinery. The ad hoc tribunals for the former-Yugoslavia and Rwanda marked a major step in realising the desire to remove impunity from those responsible for serious violations of international criminal law. These efforts in turn led to the creation of the International Criminal Court along with the subsequent creation of a number of other ad hoc tribunals and hybrid tribunals.

These efforts must be applauded as steps in the right direction for ensuring those responsible for serious violations of international criminal law are brought to justice. However, it is apparent that the increased attention being given to international criminal law has not necessarily resulted in widespread effective efforts for addressing international criminal activity.[1] There are a number of explanations for this shortcoming ranging from a lack of political will among States and international organisations to resource limitations. At the same time the desire for the creation of an effective system of international criminal justice remains a fundamental goal of the international system. The purpose of this paper is to explore one possible course of action to be pursued in the development of the system of international criminal justice – the creation of regional international criminal tribunals. To date the idea of regional international criminal tribunals has been “unexplored and underdeveloped”.[2] In many respects this is surprising given the extent of integration activities among States at the regional level, but less surprising considering the tendency of international law to marginalise developments at the regional level in a preference for universal approaches.

II. Regionalism and Universalism in International Law and Organisation

The development of international law in the 20th century has overwhelmingly favoured the idea of universal international organisation based on a universal system of law. At the same time States have continually pursued regional arrangements as a mode of cooperation for dealing with common problems, leading to a situation where universalism is the aspiration and regionalism is the practical reality in international relations.[3] The tension between universal and regional approaches to international organisation emerged at the beginning of the 20th century as the aspiration for a single universal system began to manifest itself through institutional developments such as the League of Nations and the United Nations (UN).[4]

When the idea of the League was being discussed at the end of World War I there was a strong feeling against the existence of regional arrangements because of a fear of fragmentation and that the creation of a system based on competitive regional blocs would lead to continued insecurity and conflict.[5] However, the desire for the primacy of universalism quickly became untenable in light of the political realities inherent in the international system at the time. It became necessary to include in the League Covenant article 21 which read “[n]othing in this Covenant shall be deemed to affect the validity of international engagements such as treaties of arbitration or regional understandings like the Monroe doctrine for securing the maintenance of peace”. This article is very much a compromise as it did not attempt to force a stark choice between either universal or regional approaches. Instead the existence of regional arrangements was recognised with the validity of any action taken at the regional level to be judged on the basis of the goal of the League – the maintenance of peace.

Due to the subsequent wider failures of the League system the issue of regional and universal approaches was not a prominent factor, with evidence suggesting that regional arrangements played a role both within the League system and outwith the League.[6] As World War II came to an end attention again focussed on the issue of international organisation and the tensions between regional and universal approaches re-emerged because of the aspirational beliefs in universal organisation and the realities of State behaviour through regional arrangements.[7] Prior to the end of the war the British Prime Minister, Winston Churchill, called for regional councils to be “the massive pillars upon with world organisation would be founded in majesty and calm”.[8] But more widely, the idea of basing international organisation on regional arrangements was opposed by the USSR as well as by some in the UK and USA, because of the fear it would lead to autarkic blocs and/or isolationism between the groupings.[9] As the negotiations on the new UN organisation progressed it became clear that if the superpowers were going to hold a distinct position in the maintenance of international peace and security a universal approach was necessary as regional arrangements would potentially weaken the authority of the universal body and by association the ability of the superpowers to preserve their interests.[10] During the negotiations the USA maintained a strong line in favour of a universal approach to international organisation with one member of the negotiating team viewing regional arrangements as “reprehensible ‘spheres of influence’”.[11] As the Conference progressed a diverse range of States, led mainly by the Latin American States, came to question the absolute universal approach being put forward.[12] Even though it was claimed that the final version of the Charter was able to “weld these regional king-links into a global chain”[13] the matter was far from resolved, leaving space for significant tensions due to the “ambivalent compromise”[14] that reflected a theoretical preference for universalism tempered by the realistic political preferences for regionalism.[15]

In the final version of the UN Charter regional arrangements are given specific mention in Chapter VIII (articles 52-54) and are included in article 33 as a means to be pursued in the peaceful settlement of disputes. Article 33 obligates member States to seek, in the first instance, peaceful solutions to disputes through a selection of bilateral or third party mechanisms, including “resort to regional agencies or arrangements”. The second paragraph of article 33 provides that the Security Council (SC) can call on States to utilise the various mechanisms listed in paragraph one giving regional arrangements the position of potential frontline actors in the maintenance of peace and security. However, article 34 places the SC in a superior position by allowing it to become involved in any matter that may threaten international peace and security, demonstrating there is no obligation to utilise regional arrangements.

Chapter VIII of the Charter builds on article 33 by defining the relation of regional arrangements and the SC with regard to the specific issue of action taken for the maintenance of peace and security. Article 52 states:

Nothing in the present Charter precludes the existence of regional arrangements for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

Paragraph two of the same article calls on member States that have entered into regional arrangements to make use of these arrangements for the settling of disputes before referring them to the SC. This is reinforced by paragraph three which states that the SC will “encourage” the peaceful settlement of disputes through regional action. Article 52 ensures that any actions in the field of international peace and security taken by regional arrangements must be within the principles and purposes of the Charter. This demonstrates that action at the regional level does not automatically undermine the universal system or result in a deviation from universal standards.

In the remaining provisions of Chapter VIII the SC is given a superior position when regional arrangements take action with regard to the maintenance of international peace and security. Article 53 provides that no enforcement action can be taken by a regional arrangement without authorisation from the SC. Article 54 requires that the SC “be kept fully informed” at all times about any action taken or contemplated by regional arrangements for the maintenance of international peace and security.[16]

The provisions of Chapter VIII are the only elaboration in the Charter on the relationship between universal and regional approaches towards international organisation, and, it must be noted, this is limited to one particular area - the maintenance of international peace and security. Yet the primacy of the SC in this chapter is commonly seen as synonymous with general international law placing the universal approach as embodied in the UN and its institutions in a superior position to regional approaches.[17] However, the aspirations of Chapter VIII do not accord with the realities of State behaviour. During the Charter negotiations a number of States voiced concern that giving the SC an absolute authority in all matters of international peace and security would deny States the basic right to defend themselves. It was specifically noted that States in regional arrangements would be better placed to react swiftly to the outbreak of conflict.[18] Therefore the universal aspirations of the Charter had to bow to the political realities of State behaviour at the regional level through the inclusion of article 51 which provides “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence”. The element of collective self-defence set out in article 51 recognises the importance and prevalence of State behaviour being carried out at the regional level and has also led to a number of conflicts between regional arrangements and the SC on the form and nature of action taken in the maintenance of international peace and security.[19]

One further aspect of the Charter needs to be explored in examining the relationship between universal and regional approaches in the international system. Article 103 of the Charter reads:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreements, their obligations under the present Charter shall prevail.

This article is a clear attempt at establishing a hierarchy of obligations within the international system with the UN Charter taking primacy. It does give the universal approach a superior position when it comes to conflicting obligations but it does not suggest that alternative approaches to international organisation are to be excluded. In fact, article 103 is a crucial provision when exploring the possibilities of regional action as it establishes the importance of any regional action being in line with universal principles as articulated by the UN. It in no way condemns these alternative approaches as contrary to the universal system, rather it tries to ensure that the various constituent elements of the universal system fit together in an appropriate fashion.

The development of regional arrangements should not automatically be seen as detracting or undermining the universal nature of international law. Instead they should be seen as appropriate responses to the diverse conditions that exist in the world. As Jennings has explained,[20]

the first and essential general principle of public international law is its quality of universality; that is to say, that it be recognized as valid and applicable in all countries, whatever their cultural, economic, socio-political, or religious histories and traditions… this is not to say, of course, that there is no room for regional variations, perhaps even in matters of principle… Universality does not mean uniformity. It does mean, however, that such a regional international law, however variant, is part of the system as a whole, and not a separate system, and it ultimately derives its validity from the system as a whole.

The UN itself has not attempted to pursue any sort of universal exclusivity and has worked to ensure that diversity is accommodated. Article 23(1) of the Charter mandates that the composition of the SC takes into account “equitable geographic distribution” of the member States; article 47(4) provides for regional subcommittees for the Military Staff Committee, and; article 68 provides that the Economic and Social Council may set up commissions, which has resulted in the establishment of regional economic commissions.[21] The establishment of the regional economic commissions was premised on the understanding and recognition that there existed different needs which needed specific responses, but at the same time social and economic progress was pursued in the general sense as a single universal objective.[22] A similar approach has been adopted in a range of areas such as international environmental law,[23] disarmament and confidence building measures,[24] economic integration,[25] and in the maintenance of international peace and security.[26]

These developments have in turn led to a greater degree of acceptance of the contribution that regional arrangements are able to make to international organisation. In the recent Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change there is extensive recognition of the role played by regional arrangements in a variety of activities ranging from human rights and peacekeeping to environmental protection.[27] The Report took a very clear stand on the importance of regional arrangements viewing them as a “vital part of the multilateral system” that does not contradict the efforts of the UN.[28] At the 2005 World Summit the importance of engaging with regional arrangements more actively was recognised along with support for creating stronger and more constructive relationships between the UN and regional arrangements.[29] It seems the debate no longer places regional and universal approaches in mutually exclusive positions and rather attention is now being put on practical assessments of competency and capacity and the best means available for addressing issues of international concern.[30]

III. Regional and Universal Approaches in International Human Rights Law

When looking at the possibility of regional international criminal tribunals the development of international human rights law provides a number of pertinent insights and lessons. As a result of the tensions that existed between proponents of regional and universal approaches in the early years of the UN, the international system for the protection of human rights failed to develop in a systematic fashion bringing together universal and regional approaches. Instead, developments came about in a rather ad hoc way and only recently have there been attempts at greater cooperation and coordination. This lack of coordination has meant continued tensions between universal and regional approaches and a failure to make the most efficient use of available resources. By considering the issue of regional international criminal tribunals at this early stage in the institutional development of international criminal law, a number of the shortcomings that have developed in the international system for the protection of human rights may be avoided.

In response to the atrocities committed upon individuals during WWII, the promotion and protection of human rights was included in the UN Charter as one of the objects and purposes of the organisation. In the early years of the UN, proposals for the protection of human rights through regional arrangements were rejected.[31] As with the general debate about regional or universal approaches to international organisation, the existence of regional arrangements for the protection of human rights was seen as threatening to the overall coherence of the system. In particular, calls for human rights protection on a regional basis were accused of bringing into question the universality of human rights as declared in the UN Charter and the Universal Declaration of Human Rights (UDHR), and thus as contrary to the purposes and principles of the UN itself.[32] However, there were considerable disagreements on the overall issue of human rights protection in international law hindering any sort of widespread agreement at the universal level.

Despite these calls against regional arrangements for the protection of human rights, developments at the regional level proceeded apace. In the Americas the American Declaration of the Rights and Duties of Man was adopted in April of 1948,[33] and in Europe the Council of Europe adopted European Convention on Human Rights in 1950.[34] However, the first recognition by the UN of regional arrangements for the protection of human rights came in 1966; the same year agreement was finally reached on the two International Covenants. Following the adoption of the Covenants the General Assembly adopted Resolution 2200 (XXI) asking the Human Rights Commission to look into the setting up of regional institutions for the purpose of discharging some of the functions of observance under the Covenants. This resolution is significant as it was not an attempt to assert the primacy of the universal approach, rather an attempt at coordinating a system based on both regional and universal approaches.

However, in the debates of the Human Rights Commission the ongoing tension between universal and regional approaches continued to dominate the proceedings. On the one hand it was argued that the promotion and protection of human rights was a universal issue and not one to be dealt with at the regional level. Regional arrangements, it was felt, would lead to the fragmentation of standards contributing to an overall weakness of the system. Proponents of this view also argued that the UN machinery was sufficient and that regional arrangements would not be effective. On the other hand it was argued that regional arrangements should be seen as complimentary to the work of the UN. This view felt that human rights matters would be best dealt with by States with similar interests and that regional arrangements would promote a frank and open atmosphere for discussion and resolution of common issues. Further it was argued that regional arrangements would make a direct contribution to the overall success of an international system for the protection of human rights as they would provide a stimulus for further action at the universal level.[35]

In the end the Human Rights Commission did not take firm action, leaving both the universal and regional approaches to develop in relative isolation. The General Assembly (GA) began in 1977 to call on States in regions where no arrangements for the protection of human rights were in place to consider their development. After the creation of a regional arrangement for the protection of human rights in Africa the GA recognised that regional arrangements “make a major contribution to the effective enjoyment of human rights… and that the exchange of information and experience in this field among the regions within the United Nations system may be improved”.[36] Unfortunately it was also felt that there was no need to establish any clear guidelines governing the relation between regional and universal arrangements.[37] An attempt at defining the relation between the UN and regional arrangements for the protection of human rights was made by the GA in 1990 with the statement that regional human rights instruments should complement universally accepted standards and that any inconsistencies should be dealt with by the appropriate bodies.[38] The relationship has been articulated further in subsequent GA resolutions emphasising that “regional instruments should complement the universally accepted human rights standards”[39] and recognising that “regional arrangements play a fundamental role in promoting and protecting human rights and should reinforce universal human rights standards, as contained in international human rights instruments, and their protection”.[40]

The position of regional arrangements in the international system for the protection of human rights was addressed in the 1993 Vienna Declaration and Programme of Action where it is stated that[41]

[r]egional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international human rights instruments, and their protection.

The Vienna Conference itself was based on preparatory work undertaken by three different regional meetings that fed into the global event. In each of the regional declarations the primacy of universal standards is recognised alongside the need to be aware of the cultural, historical, and social conditions that exist.[42] The Vienna Declaration represents a significant development as it essentially signals an acceptance of the contribution made by regional arrangements to the international system for the protection of human rights.

The fact that most developed enforcement mechanisms for human rights protection exist at the regional level demonstrates the importance of actively engaging with the local societies and the conditions faced, something noticeably lacking at the universal level.[43] As regional arrangements for the protection of human rights have developed, the underlying principles have been firmly placed within the overall context of the universal system. For example, the ECHR described itself in the preamble as the “first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”. The American Declaration of the Rights and Duties of Man declares in its preamble that “[t]he international protection of the rights of man should be the principal guide of an evolving American law”. The American Convention on Human Rights utilises similar statements placing the Convention within the context of the international system and directly referring to the UDHR as the underlying basis of human rights protection.[44] In the African Charter for Human and Peoples Rights due regard is given to UDHR and the UN Charter, and the Charter charges the African Commission on Human Rights to take into account both regional and universal sources for the protection of human rights.[45]

Concerns have been raised about the potential for divergence from international standards in some regional systems. The most prominent example is the Charter of Human Rights from the League of Arab States. The original Arab Charter of Human Rights was criticised as not offering sufficient standards of protection, with the bulk of the criticisms focusing on the issue of implementation as rights were easily restricted and States were given a wide amount of discretion in determining the extent of protection.[46] A new version of the Charter has been negotiated and even with input from UN bodies and other international experts, questions still remain about its adherence to international standards.[47] However, an isolated example such as this cannot stand as definitive evidence that regional approaches to human rights automatically detract from the international system. Given that the human condition is not the same around the world, varying methods of implementation must exist in order to address the wide range of diverse conditions that exist. But these methods of implementation will always remain within the broad standards and values articulated at the universal level. The differences which exist among the regional human rights arrangements should not be seen in negative terms but rather in a more positive light as an important way of enhancing a cross-cultural dialogue that is essential for the international system for the protection of human rights.[48]

Regional arrangements have proven their worth by filling gaps that exist in the universal system by bringing more States under some sort of regime of obligations and developing international human rights law into areas where there has been no substantive agreement at the universal level.[49] This has been an important development in international organisation as explained by the Secretary General of the UN, stating the view that regional organizations are in a valuable position to strengthen norms and cooperation between the regional and universal and that this cooperation can only be of mutual benefit.[50] In the recent study on fragmentation in international law the International Law Commission’s Study Group concluded that regional human rights arrangements “may also be seen as the varying, context-sensitive implementation and application of shared standards, and not as exceptions to general norms”.[51] It is this sort of thinking that needs to inform the next stage in the development of international criminal law.

IV. Regional International Criminal Tribunals

The discussion above draws out a number of important issues when considering the possibility of regional international criminal tribunals. The first is that universal and regional approaches need not be exclusive choices but rather they can be mutually compatible means for effectively addressing issues of global concern. The experiences of international human rights law demonstrate that States are more willing to agree on deeper normative structures and develop more intensive institutional arrangements at the regional level than is possible at the universal level, leading to a higher degree of participation and compliance within the enforcement regimes.[52] The success of regional arrangements for the protection of human rights is primarily due to the particular position regional arrangements hold in the system of international organisation. Universal structures are by their nature large, heterogeneous constructs that are driven by much wider concerns of the common interest conceived in global terms. This has a significant impact in that individual States will feel that their interests are somehow marginalised by an organisation that is either unable or unwilling to act in certain circumstances. This is not an inherent flaw in universal organisations, merely a fact of their existence. The international community has expressed, in fairly strong terms, a commitment to deal with violations of international criminal law. If this commitment is to be taken seriously then it is imperative to explore means of cooperation that lead to actual results.

When considering the potential for regional international criminal tribunals, the key feature to consider is the issue of proximity, as this brings about a range of positive factors. Proximity in this sense entails being both physically and conceptually ‘close’. In terms of physical proximity, regional arrangements allow for a more efficient use of resources given the limited size of the arrangement and the ease by which resources can move between the member States. This will aid in dealing with key elements of international criminal law such as investigations, evidence gathering and the appearance of witnesses. The physical proximity of a regional arrangement also ensures the minimisation of selectivity when it comes to involvement in situations. Universal arrangements have to pick and choose where to get involved because of limited resources, whereas regional arrangements are much less limited in this regard. Furthermore, regional arrangements have to see the situation through to some sort of resolution; there can be no option of leaving before the matter is resolved.[53] The conceptual proximity has already been referred to above and this contributes to considerations of legitimacy and acceptance. The application of international law by universal bodies is often conceived of as the imposition of alien norms or values. Regional arrangements on the whole possess a greater degree of legitimacy between and within the member States as they emanate from agreements based on the active participation of those in the region. Governments and societies are more inclined to follow the directives of a regional arrangement since the supervisory bodies that exist are seen as having a greater understanding of the local conditions, thereby ensuring the needs and wants of the society are effectively taken into account.[54]

It is for these reasons that the possibility of regional international criminal tribunals needs to be explored with greater vigour. The current approach to international criminal law begins first and foremost with individual States being able to exercise universal jurisdiction when it comes to the most international serious crimes. The various treaty regimes in existence that deal with international (or transnational) criminal behaviour also rely upon States to undertake the prosecution of those crimes at the domestic level. Relying on States to ensure effective enforcement over international criminal matters, even with universal jurisdiction, is optimistic as States have shown that they will only act when it is clearly beneficial to their individual interests.[55]

In light of the limited ability and/or willingness of States to act in light of the most serious violations of international criminal law, action has recently been taken at the global level. The International Criminal Tribunal for the Former-Yugoslavia and the International Criminal Tribunal for Rwanda were established by the UN SC and have been followed by hybrid tribunals of varying composition in Cambodia, Kosovo, Sierra Leone and East Timor. In all of these cases the resultant tribunal has essentially been established along regional lines through a specific mandate. A key element of these tribunals was ensuring that the local communities were part of the process for international justice.

The most notable step taken in the development of a system for dealing with violations of international criminal law is the International Criminal Court (ICC). Although an outstanding achievement, the ICC is far from a panacea for international criminal law and in no way excludes the possibility of developments at the regional level. The ICC faces a number of limitations which make it necessary to explore alternative approaches to dealing with international criminal activity. The ICC aspires to universalism as all States are able to become parties to the Statute, but many have not and many probably never will.[56] The SC is able to refer matters to the Prosecutor which may involve States not party, but because of the political nature of decisions in this regard, it is unlikely the referral power will be used extensively and significant gaps in the jurisdictional reach of the ICC will remain. There are a number of other limitations to the current approach to international criminal law that point to a gap that may be usefully filled by regional criminal jurisdictions and criminal tribunals, which will be discussed in turn.

As the ICC is a product of action at the universal level, specific, widespread agreement is limited. An example is the limitation of the subject matter jurisdiction of the ICC to the core crimes leaving a significant amount of criminal behaviour outside its scope. The core crimes involve the most heinous forms of behaviour and it is in the interest of the international system as whole that those responsible are held accountable. The ICC is a major step in dealing with these crimes as it now provides a permanent institution with the jurisdictional reach along with a significant elaboration as to the particular elements of the core crimes.[57] These developments are to be welcomed but the problem in that in result many consider the core crimes contained in the ICC Statute as representative of the entire system of international criminal law.[58] It is the criminal activity commonly placed under the heading of ‘treaty crimes’ that is most prevalent in the world today and of larger concern to States. These crimes include corruption, counterfeiting, drug trafficking, human trafficking, terrorist activities and environmental damage. The inclusion of crimes in these categories was discussed in the formulation of the ICC and rejected. The position before and at the Rome Conference was that the ICC should focus itself on the most serious violations of international criminal law that were universally recognised as wrongful.[59]

The creation of institutional machinery to address the core crimes is a significant step in the evolution of international criminal law but it is just one step. In addressing the forms of criminal activity that are of concern to States and the international community, the core crimes hold a position of importance but it is also imperative to address other aspects of international criminal behaviour.[60] As the negotiations over the ICC Statute have already demonstrated, achieving global agreement on how to address international criminal activity beyond the core crimes is not currently achievable at the universal level. However, at the regional level, concerns about particular types of crime can more easily be translated into binding norms backed up by institutional machinery. As the needs and concerns of the region evolve, the institutional machinery for dealing with criminal activity will be able to adapt more easily to the changes that occur in the surrounding context. Furthermore, developments at the regional level will provide an impetus for action at the universal level.

A further limitation on the ICC is directly connected to resource constraints. It would be impractical, if not impossible, to expect a single universal body to address the full range of international criminal activity.[61] Even within its limited mandate the ICC must be selective when deciding to become involved in situations involving violations of the core crimes.[62] It is unlikely that prosecutions will be pursued in situations that are not of great concern to the international system, essentially marginalising certain parts of the world.[63] The creation of regional international criminal tribunals will help spread the institutional reach in dealing with matters of international criminal law, in the same way regional human rights arrangements have furthered the coverage of the international system for the protection of human rights.

Expanding coverage and increasing the range of crimes covered will give regional international criminal tribunals a certain effectiveness and legitimacy that a universal institution will lack. If an international criminal tribunal is seen as something being imposed from outside it is unlikely societies or governments will fully cooperate in its workings and even go so far as to feel that their own people are being unjustly prosecuted. Furthermore, if the tribunal fails to act in situations that are of immediate concern then its legitimacy and purpose can easily be brought into question. The demands of international criminal justice cannot be applied without attention being given to the more localised conditions and attitudes.[64] This does not mean that the enforcement of international criminal law becomes bogged down in relativist claims as to what is right or wrong for particular societies; it merely asserts that the effective enforcement of international criminal law requires a balance between international standards of justice and localised perceptions as to how justice should be pursued. There is growing recognition of this need to balance universal concerns with more localised attitudes as demonstrated by the hybrid tribunals established for Kosovo, Timor-Leste, Cambodia and Sierra Leone. The development of these tribunals was driven by concerns for legitimacy and the need to engage the local populace in the provision of justice, while at the same time attempting to ensure international standards were upheld.[65] This is directly connected to the issue of selectivity as it is much harder for a regional arrangement to overlook developments that are a concern for the region. A regional tribunal would also be well placed for assisting national jurisdictions in the prosecution of international crimes, providing an element of support and expertise that may not be available either at the universal or State level. The closeness of regional tribunals would also facilitate the cooperation of States as greater pressure may be used to ensure compliance and cooperation. If the international system is serious about ensuring international criminal activity is adequately addressed and those responsible brought to justice, action at a range of levels needs to be taken.[66]

V. Reconciling the Universal and Regional in International Criminal Law

To date the idea of regional tribunals for dealing with matters of international criminal law has not received much attention. The reasons for this are not clear but are clearly influenced by the general desire for universalism in international law and a fear that regionalism will bring fragmentation and inconsistency in standards. These fears seem to ignore the propensity for State practice at the regional level and the benefits that regional arrangements have brought to international organisation. In calling for the establishment of regional international criminal tribunals one is not dismissing the progress which has been made at the universal level. An examination of the universal demonstrates clearly that there is the need for developments at the regional level as well. Given that the international system for criminal law is in the early stages of its development, the creation of regional tribunals will be much easier to integrate ensuring greater coherence to the system.

There is a concern over the proliferation of international tribunals, which in turn has brought to light the lack of coherence in a single universal system of international law. A potential issue with regard to proliferation is how the various tribunals will interact with each other and whether the international system will be faced with divergent jurisprudence. The creation of regional international criminal tribunals need not necessarily raise any major concerns in this respect. With regard to the core crimes, the ICC is already endowed with the necessary elements for dealing with differing levels of jurisdiction. The inclusion of complementarity in the Rome Statute creates an explicit relation between domestic tribunals and the ICC. In those circumstances where a State is either unwilling or unable to act with respect to the core crimes contained in the ICC Statute, the ICC may take jurisdiction.[67] The relationship of a regional tribunal with jurisdiction over core crimes and the ICC might be modelled on complementarity. An alternative would be to allow for a process of appeal from the regional tribunal to the ICC. The ICC would be able to work with regional tribunals to ensure a less selective approach is undertaken with regard to the core crimes as cooperation could be undertaken for dealing with a wider range of matters. With regard to the treaty crimes, as there is currently only limited universal agreement in this area, regional tribunals would be a major step in suppression of the underlying harmful conduct. States within regional groupings should be encouraged to come to agreement on specific elements of criminal activity that are of concern to the region and establish an appropriate tribunal that would be able to deal with such matters based on the existing universal principles as established in the existing treaties.

The development of the international system for the protection of human rights has not been a co-ordinated affair between the regional and universal levels. Institutions have proliferated at both levels, but this has not proven to be detrimental to the furtherance of international human rights law. In the field of international criminal law there is the opportunity to avoid the uncoordinated proliferation that occurred in the human rights system and develop an organised system that takes into account the positive aspects of regional arrangements while ensuring full and due respect for universal principles and values.

Cassese identifies the issue of State sovereignty as the biggest factor in the way of an effective international system for criminal law.[68] The assertion of State sovereignty is characterised by its adherence to strong self-interest, with a lack of cooperative or community values. Regional arrangements, such as the EU, have demonstrated that they can overcome State sovereignty in the pursuit of common objectives more effectively than a universal approach. It appears then that the future of an effective system of international criminal justice will depend heavily on the creation of international criminal tribunals at the regional level.

[∗] Director, McCoubrey Centre for International Law, University of Hull.

[1] Cassese explains that even with regard to the most serious violations of international humanitarian and human rights law the international system has failed to effectively prevent and punish these actions, see Antonio Cassese, International Criminal Law (Oxford University Press, 2003) 445-446.

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

[3] Gerhard Bebr observed that both the UN and the League “strongly emphasized universalism and consequently insisted on an unlimited, supra-ordinated position with regard to regional organizations. In both cases, this attitude was in time modified”: ‘Regional Organizations: A United Nations Problem’ (1955) 49 American Journal of International Law 167-168.

[4] W Hummer and M Schweitzer, ‘Article 52’ in Bruno Simma (ed), The Charter of the United Nations: A Commentary (Oxford University Press, 2nd ed, 2002) 684; Lousie Fawcett, ‘The Evolving Architecture of Regionalization’ in Pugh and Singh Sidhu (eds), The United Nations and Regional Security (Lynne Reiner, 2003) 13.

[5] Hummer and Schweitzer, ibid 813; Bebr, above n 3, 168.

[6] Hummer and Schweitzer, above n 4, 813.

[7] For a history of regionalism in the context of the United Nations and the League of Nations, see: 12 United Nations Conference on International Organization (1945) 764-784.

[8] Speech at the Hague on 7 May 1948: European Navigator, ‘Speech by Winston Churchill’, online: <> (last accessed on 13 April 2007).

[9] Peter Calvocoressi, World Politics since 1945 (Longman, 6th ed, 1991) 121.

[10] See Stephen Schlesinger, Act of Creation: the Founding of the United Nations (Westview Press, 2003) 36-44.

[11] Ibid 176, 178-179.

[12] Hummer and Schweitzer, above n 4, 814; Michael Akehurst, ‘Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States’ (1967) 42 British Yearbook of International Law 175-177.

[13] See Alan Henrikson, ‘The United Nations and Regional Organizations: “King-Links” of a “Global Chain”’ (1996) 7 Duke Journal of Comparative and International Law 35.

[14] Hummer and Schweitzer, above n 4, 815.

[15] Inis Lothair Claude, Swords into Ploughshares: The Problems and Progress of International Organization (University of London Press, 3rd revised ed, 1964) 106.

[16] In early practice the SC did not insist on the reporting obligations under this article, essentially making the obligations optional: see Akehurst, above n 12, 183.

[17] Fawcett in Pugh and Sidhu, above n 4, 13; Christoph Schreuer, ‘Regionalism v Universalism’ (1995) 6 European Journal of International Law 489-498.

[18] See Bebr, above n 3, for discussion of the various positions that were voiced, 170-173.

[19] Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (Sweet and Maxwell, 2001) 151-152; Christine Gray, ‘The Use of Force and the International Legal Order’ in Evans (ed) International Law (Oxford University Press, 2nd ed, 2006) 615-616.

[20] Robert Jennings ‘Universal International Law in a Multicultural World’ in Bos and Brownlie (eds), Liber Amicorum for the Rt Hon Lord Wilberforce (Oxford University Press, 1987) 41-42.

[21] Parley W Newman, ‘Regionalism in Developing Areas: United Nations Regional Economic Commissions and Their Relations with Regional Organizations’ in Berhanykun Andemicael (ed), Regionalism and the United Nations (Oceana, 1979) 339.

[22] Ernst Haas, ‘The United Nations and Regionalism’ (1970) 3 International Relations 796-797.

[23] David Freestone, ‘The Road to Rio’, Josephine Onoh Memorial Lecture (University of Hull Press, 1994) 8-9.

[24] GA Res 47/52[G], General and Complete Disarmament, UN GAOR, 47th sess, 81st plen mtg, UN Doc A/Res/47/52 (1992). Also GA Res 58/43, Confidence Building Measures in the Regional and Subregional Context, UN GAOR, 58th sess, 71st plen mtg, UN Doc A/Res/58/43 (2003).

[25] GA Res 46/145, Regional Economic Integration among Developing Countries, UN GAOR, 46th sess, 76th plen mtg, UN Doc A/Res/46/145 (1991).

[26] GA Res 49/57, Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security, UN GAOR, 49th sess, 84th plen mtg, UN Doc A/Res/49/57 (1994).

[27] See generally, A More Secure World: Our Shared Responsibility, Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change, UN Doc A/59/565 (2004).

[28] A More Secure World: Our Shared Responsibility, ibid para 272.

[29] UN General Assembly, 2005 World Summit Outcome, UN Doc A/60/L (2005), para 170.

[30] For example, see SC Res 1631, UN SCOR, 5282nd mtg, UN Doc S/Res/1631 (2005); Report of the Secretary General, A Regional-Global Security Partnership: Challenges and Opportunities, UN Doc S/2006/590 (2006). This shift to concentrating on capabilities and capacity has also been recognised by the International Law Commission’s Study Group on the Fragmentation of International Law, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.633/Rev.1 (2004), para 61.

[31] Burns Weston, Robin Lukes and Kelly Hnatt, ‘Regional Human Rights Regimes: A Comparison and Appraisal’ (1987) 20 Vanderbilt Journal of Transnational Law 588; Karel Vasak, The International Dimensions of Human Rights (Greenwood, 1982) 451.

[32] Vasak, ibid 451.

[33] OAS Res XXX, adopted by the Ninth International Conference of American States (1948).

[34] CETS No 5, available at <> (last accessed 7 June 2007).

[35] V S Mani, ‘Regional Approaches to the Implementation of Human Rights’ (1981) 21 Indian Journal of International Law 113-114.

[36] GA Res 39/115, Regional Arrangements for the Protection of Human Rights, UN GAOR, 39th sess, 101st plen mtg, UN Doc A/Res/39/115 (1984), preamble, 4th indent.

[37] Mani, above n 35, 114.

[38] GA Res 45/167, Regional Arrangements for the Promotion and Protection of Human Rights, UN GAOR, 45th sess, 69th plen mtg, UN Doc A/Res/45/167 (1990).

[39] See GA Res 47/125, Regional Arrangements for the Promotion and Protection of Human Rights, UN GAOR, 47th sess, 92nd plen mtg, UN Doc A/Res/47/125 (1992) preamble, indent 9.

[40] GA Res 49/189, Regional Arrangements for the Promotion and Protection of Human Rights, UN GAOR, 49th sess, 94th plen mtg, (1994) preamble, indent 6.

[41] World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993), para 37.

[42] Report of the Regional Meeting for Africa of the World Conference on Human Rights, Tunis, 2-6 November 1992, UN Doc A/CONF.157/PC/57 (1992), para 5; Report of the Regional Meeting for Latin America and the Caribbean of the World Conference on Human Rights, San José, Costa Rica, 18-22 January 1993, UN Doc A/CONF.157/PC/58 (1993), para 22; Report of the Regional Meeting for Asia of the World Conference on Human Rights, Bangkok, 29 March-2 April 1993, UN Doc A/CONF.157/PC/59 (1997), para 8.

[43] Jack Donnelly, ‘International Human Rights: A Regime Analysis’ (1986) 40 International Organization 637.

[44] American Convention on Human Rights (“ACHR”), OAS Treaty Series, No 36, 1144 UNTS 123 (entered into force 18 July 1978).

[45] African Charter for Human and Peoples Rights (“ACHPR”), opened for signature 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5 (entered into force 21 October 1986) art 60.

[46] See generally International Commission of Jurists, ‘The Process of "Modernising" the Arab Charter on Human Rights: a Disquieting Regression’ (20 December 2003), online: <> (last accessed on 14 April 2007).

[47] See Mervat Rishmawi, ‘The Revised Arab Charter on Human Rights: A Step Forward?’ (2005) 5 Human Rights Law Review 364.

[48] See Abdullahi Ahmed An-Na’im (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press, 1995).

[49] For example, the Council of Europe has adopted the only existing international legal treaty on minority rights: Council of Europe, The Framework Convention for the Protection of National Minorities, ETS No 157 (entered into force 2 January 1998). With regard to the protection and promotion of democracy the Council of Europe, the European Union and the Organisation of American States have all established clear legal obligations along with procedures for compliance, something lacking at the universal level. With regard to both areas it has been suggested that the UN should work with regional arrangements in developing its own standards in these areas, see A More Secure World: Our Shared Responsibility, above n 27, para 94.

[50] See UN Secretary-General, Report of the Secretary-General on Regional Arrangements for the Promotion and Protection of Human Rights, UN Doc E/CN.4/1993/32 (1993).

[51] International Law Commission Study Group, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.676 (2005), para 19.

[52] See also A H Robertson and J G Merrills, Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights (Manchester University Press, 3rd ed, 1992) 223-224.

[53] As occurred in East Timor/Timor-Leste. Despite the overwhelming evidence of serious violations of international human rights and humanitarian law and a pledge by the SC that those responsible should be brought to justice, the UN never fully supported the hybrid tribunal that was created and quickly departed from the area before any real attempt was taken at prosecuting those responsible: see R Burchill, ‘From East Timor to Timor-Leste: A Demonstration of the Limits of International Law in the Pursuit of Justice’ in Doria, Gasser and Bassiouni (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishenko (Martinus Nijhoff, forthcoming 2007).

[54] James Rosenau, ‘Governance in the Twenty-first Century’ (1995) 1 Global Governance 16.

[55] For discussion see Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 589-595. Cassese also explains that States often fail to develop relevant domestic legislation providing the domestic courts with jurisdiction and even where such legislation is in place the domestic courts remain reluctant to exercise jurisdiction: see Cassese, above n 1, 305.

[56] As of 1 January 2007 there are 104 States parties to the 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”). Notably there are only 12 States from the Asia-Pacific who are parties: International Criminal Court, ‘The States Parties to the Rome Statute’, online: <> (last accessed on 14 April 2007).

[57] Nigel White, The United Nations System: Toward International Justice (Lynne Reiner, 2002) 212-213.

[58] Neil Boister, ‘Transnational Criminal Law?’ 14 European Journal of International Law (2003) 975.

[59] For discussion see Neil Boister, The Exclusion of Treaty Crimes from The Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3 Journal of Conflict and Security Law 27-43.

[60] See Andreas Schloenhardt ‘Transnational Organised Crime and the International Criminal Court: Developments and Debates’ [2005] UQLawJl 4; (2005) 24 University of Queensland Law Journal 93-122.

[61] For a fuller discussion see Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press, 2005).

[62] As explained by the Prosecutor, only a few cases a year will be considered and then only to deal with those who bear the greatest responsibility: see Office of the Prosecutor, Report on Prosecutorial Strategy (14 September 2006) 3.

[63] Fausto Pocar, ‘The Proliferation of International Courts and Tribunals: A Necessity in the Current International Community’ (2004) 2 Journal of International Criminal Justice 308.

[64] Theodor Meron, ‘Reflections on the Prosecution of War Crimes by International Tribunals’ (2006) 100 American Journal of International Law 563-564.

[65] In practice this has not always been the case as demonstrated by events in Cambodia: see Human Rights Watch, ‘Government Interferes in Khmer Rouge Tribunal’ (5 December 2006), online: <> (last accessed on 14 April 2007).

[66] A point made forcefully by Cassese, above n 1, 458, but without any specific mention of the regional level.

[67] Rome Statute, art 17.

[68] Cassese, above n 1, 446.

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