New Zealand Yearbook of International Law
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New Zealand Yearbook of International Law |
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Steven Freeland[*]
In July 1998, delegates from the majority of the world’s nations met in Rome at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The three weeks of the Rome Conference represented the culmination of many years of sometimes difficult negotiations. Right up until the final vote at Rome, there remained a number of significant issues – particularly in relation to the extent of the Court’s proposed jurisdiction - with which some of those present at the Conference had great difficulty. In the end, however, the Conference agreed on the final terms of the Rome Statute for the ICC (Rome Statute),[1] a document that would lead to the establishment of the International Criminal Court (ICC or the Court).
It is true to say that the establishment of the first permanent international criminal court was as political an event as it was significant in the evolution of international criminal justice. The negotiating States, as well as the other stakeholders at the Rome Conference, represented a multitude of differing views as to how the Court should be structured. However, the conclusion of the Rome Statute and its subsequent ratification (thus far) by 100 States, demonstrates that the principle underlying the establishment of the ICC – the need for more effective enforcement of the universal norms of international criminal law - was more important than the (impossible) task of satisfying all of the concerns of the various delegations involved. If anything, the importance of this principle has grown further since those days in Rome.
The Court has been given the jurisdiction to play a role when the most serious international crimes have (allegedly) been committed. As a permanent court, it differs from previous international criminal tribunals that were established as ad hoc bodies. Those Tribunals, including the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), were set up in response to specific events and were always intended to have a limited life-span. Indeed, both of those Tribunals are currently operating to a ‘Completion Strategy’ specified by the United Nations Security Council, which envisages that all investigations would have been completed by the end of 2004, all trial activities at first instance will be completed by the end of 2008, and that the work of each of the Tribunals will be completed in 2010.[2]
By contrast, the ICC is “a permanent institution”[3] with the power to exercise its jurisdiction with respect to circumstances that may occur in the future – that is, at any time after the Rome Statute came into force (1 July 2002). Unless the Assembly of States Parties to the Rome Statute decides to completely alter the nature or focus of the Court, the ICC will remain in place for the long-term and will have the potential to play a role in circumstances where “the most serious crimes of concern to the international community as a whole” have been committed.[4]
In this sense, the Court represents an important guardian of those values and norms that are accepted universally among the international community. As United Nations Secretary-General, Kofi Annan, aptly put it following the agreement of delegates in Rome to adopt the Rome Statute, the Court’s creation is “a giant step forward in the march towards universal human rights and the rule of law”.[5] Not only is this important in and of itself; it also reaffirms the interrelationship between the maintenance of international peace and security – an underlying theme of the United Nations Charter - and respect for human rights. As the Security Council has recently acknowledged:[6]
peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and… in this regard… development, peace and security and human rights are interlinked and mutually reinforcing.
It was thus clear from the outset that the Court was to be regarded as a significant – as well as highly symbolic - legal mechanism designed to bring to account those responsible for gross violations of the most fundamental human rights norms. It could be said that the international criminal law principles reinforced by the ICC represent the ‘flip side’ of these human rights norms, in that they provide the framework to regulate the processes of accountability for the perpetrators of gross violations of human rights. The establishment of the ICC, as well as its jurisdictional reach, represent a continuation of the ongoing trend we are witnessing towards the ‘internationalization’ of criminal justice – the establishment of formal international mechanisms to apply and enforce existing universal norms of international criminal law, as well as those that will develop in the future.
It should be noted, however, that this process of internationalization does not necessarily represent the ‘harmonization’ of existing national criminal law principles. Naturally, the specific domestic criminal laws of any one country will depend, at least to a certain degree, on that country’s history, culture, political system and values and, as such, remain the exclusive domain of each State.[7] Rather, this internationalization of justice recognises that there are certain norms of international criminal law that transcend national boundaries and, like fundamental human rights norms, are regarded as universal in acceptance and thus should be universal in application. These are particularly reflected in the nature of the specific international crimes that exist, as well as those principles that regulate and protect the rights of all stakeholders – the accused, witnesses and victims – in any trial arising from the alleged commission of such crimes.
The first international attempt to uphold these universal principles came with the establishment of the International Military Tribunals in Nuremberg and Tokyo after World War II. A number of fundamental principles of international criminal justice emerged from the jurisprudence of those Tribunals. What was perhaps most striking about this entire process, at least compared to any earlier attempts to criminalise acts committed during warfare, was that these Tribunals applied international law doctrines and concepts to judge the acts of those individuals brought before them. It was recognised that those crimes for which the defendants in Nuremberg and Tokyo had been charged were actions that offended the values of the broader international community.
The ‘Nürnberg Principles’ adopted by the International Law Commission in 1950 – and subsequently considered as reflecting customary international law - confirmed the notion of individual criminal responsibility for the commission of crimes under international law, even where national law does not prescribe a penalty for such actions.[8] The notion of a crime under international law was therefore different from, and not dependent upon, specific provisions of national criminal law or, it should be added, any particular characteristic of a region.
Indeed, in oft-quoted wording from the Nuremberg Judgment, the Tribunal observed that individual criminal responsibility for the actions in respect of which it was imposing judgment and pronouncing sentence stemmed from the commission of acts that represented a breach of those standards imposed at the international level:[9]
[t]hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized… Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
While there have, of course, been many criticisms of the Nuremberg and Tokyo processes as simply representing ‘victors’ justice’, there is no doubt that this categorization of international crimes as being (by definition) a part of international law has continued and been further developed by the establishment and jurisprudence of the ad hoc Tribunals. Perhaps in response to arguments put by the defendants at the Nuremberg trials – which it must be noted were inconclusively dealt with by the Judges - that the ex post facto punishment of ‘new’ crimes in the Charter of that Tribunal[10] offended the nullum crimen sine lege principle,[11] the Secretary-General of the United Nations, in reporting on the establishment of the ICTY, expressed the widely held view that this new ad hoc Tribunal would only be concerned with the prosecution of those crimes that were “beyond any doubt part of customary international law”.[12]
Even though the terms of the Statutes of the ICTY and ICTR vary in relation to some of the crimes within their respective jurisdiction[13] – and even in some aspects of the definition of particular crimes[14] – they both reflect the acceptance of the international community as a whole that the actions that constitute these crimes constitute “[s]erious violations of International Humanitarian Law”, for which those most responsible should be brought to account.[15] In other words, the very existence of these international crimes assumes the existence of globalized norms that regulate the behaviour of individuals.
This ‘codifying’ role played by the instruments that establish the tools of international criminal justice has continued with the Rome Statute. The delegates in Rome were careful to ensure that the Court is concerned with those international criminal law norms that, without doubt, represent the values of the broader international community. In this sense, the overriding intention was to establish an institution which reflected legal principles that were applicable (and appropriate) globally, rather than taking account of any specific regional characteristics, which would have presented a challenge to the universal nature of the Court. To the extent that various negotiating States sought to introduce what might be regarded as ‘regional’ standards, these were met with general resistance as compromising the broader aims of the Court. Of course, the introduction of new or relatively new concepts into the scheme of the Court – for example, the significant expansion of victims’ rights under the Rome Statute[16] – reflected the views of particular countries (in the case of victims’ rights, one of the main countries advocating the inclusion of those rights was France). However, this does not represent a regionalisation of the Court; rather it reflects the evolution of international criminal law principles associated with the recognition of the important role played in the process by all stakeholders.
The Court has the jurisdiction to deal with such crimes occurring in a wide range of circumstances and, potentially, taking place in many countries of the world. In this regard, it was therefore assumed by the drafters in Rome that the application of these norms would be consistent and universal, no matter what the location and circumstances in relation to which they were to be applied.
The Rome Statute provides definitions of the crimes of genocide (article 6), crimes against humanity (article 7) and war crimes (article 7), each of which reflect these universal international criminal norms. While there will also be an element of ‘progressive development’ - academic arguments persist as to whether every aspect of the definitions of the crimes in the Rome Statute may (or may not) be identical to current customary international law[17] - it is widely acknowledged that the general parameters of these crimes represent actions that are a gross affront to fundamental human rights norms.
As such, it is submitted that not only are the norms that criminalize such actions a part of international law, but every State has an interest – some might argue a “duty”[18]- to ensure that they are properly and effectively enforced and respected. The role of States in this process is emphasized by the system of complementarity that underpins the structure of the ICC. At the same time that the Rome Statute sets out the fundamental nature of the principles it is designed to enforce, it clearly envisages that the primary responsibility for the enforcement of these norms lies at a different level on a vertical chain of criminal justice – that of national criminal jurisdictions. It is only where the State is “unwilling or unable to carry out the investigation or prosecution” that a case may be admissible before the Court.[19]
The affirmation in the Rome Statute of this obligation on States further implies the universal application of these norms, irrespective of where – and by implication, by what form of mechanism - they are being enforced. These obligations are, of course, not limited to the States parties to the Rome Statute. Judge Simma of the International Court of Justice has recently observed that “at least the core of the obligations deriving from” international humanitarian law and international human rights law are also of an erga omnes nature.[20] As a result, these principles – and the associated obligation to prevent their breach and punish the perpetrators of international crimes – are binding on all States irrespective of any specific treaty obligations they may (or may not) agree to take on through the political act of ratification. We have recently seen a clear demonstration of this in Hamdan v Rumsfeld, where the United States Supreme Court confirmed the application of the relevant provisions of the Geneva Conventions to alleged terrorists being detained in Guantánamo Bay.[21]
Some might argue that the inclusion of the as yet undefined crime of aggression belies the conclusion that the Rome Statute embraces only those fundamental norms that are accepted by the international community. Indeed, it is certainly the case that the notion of international aggression has historically been highly politicized, as reflected in the discussions leading to the definition of aggression by a State, adopted by the United Nations General Assembly in 1974.[22]
However, the process by which a definition of the crime of aggression is being considered for inclusion within the competence of the ICC – involving many discussions, negotiations and debates among a wide range of international legal experts over a period of years – is designed to maximise international ‘consensus’ in relation to the acts to which it will ultimately relate, thus reinforcing the widespread acceptance of the international criminal norm that will emerge. In addition, this definition will relate to circumstances giving rise to individual criminal responsibility, and is thus a different notion to the more politicized concept of aggression by a State. It also contributes to this process of the ‘internationalization’ of international criminal law by virtue of the fact that, before any final definition of aggression can be included in the Rome Statute, it must be adopted by the Assembly of States Parties, which is to agree as to “the conditions under which the Court shall exercise jurisdiction with respect to this crime”.[23] In addition, the definition is to be “consistent with the relevant provisions of the Charter of the United Nations”.[24]
As part of this process of the internationalization of justice, we are gradually witnessing the ‘upgrading’ of domestic laws to accord with the principles contained in the Rome Statute. Of course, in some cases the primary motivation behind this is to ensure that the relevant country does not fall within the ‘unable’ criteria set out in article 17 of the Rome Statute. Nevertheless, one of the positive ‘by-products’ from the establishment of the Court is the incentive it provides for States parties to implement appropriate domestic laws designed to enable their respective national courts to exercise jurisdiction in respect of any alleged act that constitutes an international crime within the mandate of the ICC. Even though various States parties have yet to enact implementing legislation, as this international system of criminal justice further strengthens, national governments will no longer be able to ignore the moral and legal imperative to recognise these crimes within their own national criminal justice systems.
For example, following ratification of the Rome Statute, the Australian Parliament enacted both the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth) which, among other things, provided for cooperation between the Court and the Australian Government and, more importantly, introduced the crimes defined in the Rome Statute into Australian domestic law.[25] Indeed, Australia has recently been approached by the Court with a request for cooperation in relation to the situation in the Democratic Republic of the Congo.
For Australia this legislation was both significant and symbolic, given that Parliament had previously failed to effectively implement the 1948 Genocide Convention into domestic law, with the result that it had been very difficult to assert that a crime of genocide existed under Australian law.[26] As such, the ratification of the Rome Statute placed Australia in a position where it had to accept – albeit perhaps for pragmatic reasons – the inevitability that crimes such as genocide and crimes against humanity are and should be recognised as fundamental elements of its domestic criminal code.
Actions such as this certainly do not impinge unacceptably on national sovereignty – instead the introduction of such domestic laws sends a signal to the international community that the relevant State is, and is seen to be, willing to accept its responsibilities to contribute in a positive way to the progress of international justice, as well as fulfilling its “duty… to exercise its [national] criminal jurisdiction over those responsible for national crimes”.[27]
This process of the internationalization of criminal justice, involving as it does a variety of international and national justice mechanisms, requires that the principles of international criminal law and the protection of fundamental human rights norms are implemented consistently. The Security Council has recently noted that such mechanisms:[28]
can promote not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of the victims.
If we are truly to achieve the realisation of these goals and move towards the end of impunity - an essential element “if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent future such abuses”[29] – then it is necessary that all judicial mechanisms within this process maintain and respect the universal norms that are involved.
The establishment of the ICC represents another – obviously important – component in the range of justice mechanisms that are intended to achieve these lofty goals. The specific international criminal norms that it is mandated to protect and enforce, serve to continue this process of the internationalization of criminal justice. This reinforces the determination of the international community that certain behaviour is unacceptable, irrespective of where it has been committed and by whom. Given the fact that the Court is the creation of a treaty (as opposed to the ad hoc Tribunals, which were established by United Nations Security Council Resolutions), certain limitations were, by necessity, imposed on its competence. Apart from a referral by the Security Council under article 13(b) of the Rome Statute or a declaration by a non-State party under article 12(3), the Court is generally limited in its jurisdiction to circumstances where one of the international crimes has been committed within the territory of, or by a national of, a State party.[30]
However, the inclusion of these jurisdictional limitations does not indicate that the norms that the Court seeks to apply are not universal; rather they reflect realpolitik in that they are in deference to the State sovereignty of those countries that, for whatever reason, have decided not to become a State party to the Rome Statute. As mentioned above, this does not, of course, relieve those States (or indeed any State) from applying these principles, even if this is done in an alternate forum, such as their respective domestic court systems. This is exactly what is contemplated by the complementarity principles that are an integral part of the Rome Statute.
In this context, it is appropriate to consider a parallel movement to the internationalization of justice – the movement towards regional enforcement mechanisms in other specific areas, particularly human rights. In theory, there is nothing to prevent fundamental international criminal justice norms from being applied at a regional level. Indeed, some may argue this may further reinforce the universal nature of these principles. Even if those assertions are correct, it is important to note that, as with national jurisdictions, the universal principles of international criminal justice must remain fundamental to any regional process that is established.
At the same time that we have been witnessing this internationalization process in criminal justice, we have seen the increased regionalization of human rights enforcement systems, at least in some parts of the world. In the European, American and African regions, well developed regional systems of human rights protection have emerged. Each of these regions has a widely accepted Convention or Charter on Human Rights and Fundamental Freedoms, reinforced with appropriately structured judicial enforcement mechanisms.[31] There is also an Arab Charter of Human Rights (albeit with minimal ratifications thus far).[32]
By contrast, matters regarding the protection of human rights and the prevention of human rights abuses in the Asian region are, in the main, largely left to national jurisdictions.[33] This lack of regional cooperation in the development of an appropriate human rights system is all the more glaring given that, over the past few decades, cooperation in the Asia Pacific region in many other matters, particularly involving issues of trade, has blossomed.
Alongside a regionalization of human rights enforcement mechanisms, we have also seen some ‘localized’ attempts to enforce international criminal justice. In a sense, some may consider the two ad hoc international criminal tribunals as ‘regional’ in nature, given that they both relate to events in a specific localized area.[34] Indeed, some local standards are relevant to particular aspects of the operation of those Tribunals. For example, when determining the appropriate penalty for a convicted accused, the Trial Chambers of the ICTY and ICTR are to “have recourse to the general practice regarding prison sentences in the courts of” the former Yugoslavia and Rwanda respectively.[35] It is clear, however, that those Tribunals have been established under international law and primarily apply universally accepted principles of international criminal law.
As part of the overall evolution of international criminal justice, we have also seen the emergence of ‘sole purpose’ internationalized tribunals. Some of these, for example the Special Court for Sierra Leone, appear thus far to be quite effective in the application of universal international criminal law norms, while at the same time also applying specific local law as appropriate.[36] As with the ad hoc Tribunals, although some of these localized tribunals – sometimes referred to as ‘internationalized’ or ‘hybrid’ courts - may have recourse to local laws, they continue to apply generally well accepted international norms to the complex factual circumstances with which they are faced.
Indeed, the jurisprudence of those tribunals established as part of a localized system of international criminal law will be of interest and potential relevance to the ongoing work of the ICC. This commonality of legal principles supports the view that the international criminal law norms with which localized tribunals are primarily (although perhaps not solely) concerned, representing as they do the values of the broader international community, should be applied in a consistent manner in those forums as reflecting their universal nature. Any underlying tensions that may exist between these universal standards and the temptation to compromise them by applying a localised ‘translation’ must be avoided at all costs.
Having noted the important role that national and localized courts play in the matrix of justice mechanisms that enforce the universal norms of international criminal law, it must be pointed out that those localized courts that have been established in Asia to address international crimes have not been particularly effective and perhaps may not represent the best mechanism to satisfactorily address the complex issues involved.[37] In this context, the question could be raised as to whether a regional system of international criminal justice might not be more effective in the Asia Pacific area, particularly given the low level of ratification of the Rome Statute by the countries of the region – as evidenced by the fact that the number of States parties from the region is currently only nine, with the last of those ratifications having taken place over three and a half years ago.[38]
The advantages and disadvantages of a process of regionalization of international criminal law will no doubt be addressed in detail by other commentators. I therefore only offer some brief thoughts in this regard. At the outset, it must be recognised that the plethora of existing regional legal systems that establish mechanisms or networks in a variety of areas are designed to achieve different goals and take various forms.[39] It has already been noted that we have seen a tendency towards the regionalising of human rights enforcement mechanisms (albeit not in all regions of the world). This trend is also seen in other areas of regional legal regulation, notably in the area of trade, which have been established to achieve economic growth and comparative advantage within a particular group of countries.
If regionalization were also to be considered as an appropriate step forward in the area of international criminal law, it is important that any specific goals implicit in the establishment of a particular system do not conflict with the global norms underpinning the regulation of international crimes. In addition, there are questions of cost, security and the need to guarantee the protection of the rights of the accused in a transparent judicial process, which will need to be taken into account. These are, of course, already issues relevant to the establishment of international and indeed local mechanisms of criminal justice.
Moreover, there may in fact be some advantages to the establishment of a regional criminal court system – perhaps operating in conjunction with a regional human rights system. This would not replace either the ICC or national criminal justice systems, but rather could provide a further alternate enforcement mechanism. There are important sensitivities associated with having a court process that is accessible – in terms not only of geography, but also language, culture and familiarity – to victims and their families, as well as the broader community. This is what is contemplated by trials within the national legal system of the affected State, which is perhaps the ideal situation, assuming that the process represents a credible and transparent attempt to deliver real justice in the circumstances. Where that might not be possible, it may be that, in certain circumstances, some of these sensitivities might better be served by a regional court system rather than a trial at the other end of the world in The Hague. Of course, these issues are presently the subject of significant discussion in relation to the decision, based primarily on security concerns, to relocate The Special Court for Sierra Leone to The Hague for the forthcoming trial of former Liberian President Charles Taylor.[40]
With the above observations in mind, the regionalization of international criminal law warrants careful consideration. It is already a reality to a certain degree – almost by stealth - in those regions that have well-established human rights enforcement mechanisms. Indeed, it is inevitable that enforcement of human rights norms and international criminal law norms will be inter-dependent in many circumstances. Although Europe, the Americas and Africa have not set up a regional criminal court, their respective human rights courts are sometimes confronted with situations where an international crime(s) may have been committed.
This is perhaps more evident within the Inter-American and African regional human rights systems than in the European system. In the Americas, for example, the Inter-American Court of Human Rights has often been confronted with facts arising under a self-proclaimed state of emergency declared by military governments, which have exploited the situation in an attempt to justify widespread practices such as torture, disappearances and extra-judicial executions.[41]
Likewise, it is also the case that fundamental norms of international human rights law are relevant to the work of international criminal tribunals. This is so both with respect to the substantive international criminal law that is to be applied,[42] as well as the procedural operation of the respective Tribunal.[43] The Appeals Chamber of the ICTR has stated, for example, that the 1966 International Covenant on Civil and Political Rights (ICCPR),[44] as a “part of general international law”, is one of the “sources of law for the Tribunal”.[45] In its first major substantive judgment, the Appeals Chamber of the ICC has recently confirmed that every article of the Rome Statute “must be interpreted and applied in accordance with internationally recognized human rights, as declared in article 21(3) of the Statute”.[46]
All of this is not to say that a ‘human rights court’ is the same as an ‘international criminal court’. Clearly they approach what might be similar factual circumstances from different standpoints – the former from the viewpoint of the (violation of the) rights of the victim(s) and the latter in relation to the actions of the perpetrator. Yet, it is undeniable that there is a cross-over of legal principles and that the norms that are involved are to be universally respected. The rights of victims that are emphasised (for the first time) in the Rome Statute to both participate as a party in proceedings before the ICC and be entitled to reparations[47] – recent developments in this evolving process of international criminal justice – serve to further reinforce the close connection between norms of international criminal law and those principles protecting the rights of the individual.
In this respect, it may well be the case that a regional criminal court system in the Asia Pacific region is not something that is likely to eventuate for a considerable period of time, given that we are still to see a formalised regional human rights system. Moreover there are even more fundamental difficulties for this part of the world. The geographical breadth of the standard United Nations regional grouping of ‘Asia’ – including, for example, countries in the Middle East – means that it is probably far more heterogenous than other regions.[48] This complicates any attempt to unify a system dealing with matters that are (either in reality or perceived to be) impacted by differing cultural values and beliefs. Indeed, it raises a broader question as to whether one can really talk about an Asia Pacific ‘region’ at all (apart from in the geographical sense). Nevertheless, there are arguments to suggest that the Pacific countries (with or without Australia and New Zealand) and many of the Asian countries, might be appropriate ‘units’[49] or ‘mini–regions’ for the creation of a cooperative human rights mechanism, perhaps in conjunction with a regional criminal justice mechanism. However, neither of these appears likely for the countries of Asia and the Pacific in the near future.
Even where it may be appropriate to regionalise international criminal law, it is one thing to create a regional system of enforcement, but something entirely different to argue that the applicable fundamental norms should somehow vary from the principles accepted at the ‘international’ level. The regionalization of human rights enforcement has not seen a dilution of the universal principles. Each regional system still applies those norms that stem from the “International Bill of Rights”,[50] even though they may also incorporate specific elements reflecting the unique characteristics of the particular region. Importantly, these ‘added features’ build upon, rather than detract from, the fundamental human rights norms encapsulated in the International Bill of Rights.
Similarly, any move to establish a regional criminal law enforcement mechanism in the Asia Pacific area (or indeed in any specific region) must not involve a watering down of those fundamental norms, upon which the whole basis of international criminal law is founded. Of course, it may be appropriate to add further legal rules to the competence of any such regional tribunal – as mentioned above, we have seen this with the addition of specific local law to the competence of internationalized tribunals like the Special Court for Sierra Leone. But the application of specific rules to accommodate regional values and cultures cannot be a justification for ignoring the universal nature of international criminal law norms.
To attempt to do so would ignore the heinous character of the international crimes that these norms seek to deter. When it comes to the commission of these crimes, there is no acceptable argument, even based on notions of cultural relativism, that would support an assertion that, for example, acts that constitute the crime of crimes against humanity in one region were justifiable or permitted in another. To the extent that differing regional – or indeed national - characteristics justify a variation of the applicable rules for any Tribunal, this is limited to a determination of what additional norms should also be included within that Tribunal’s mandate.
There are also more practical reasons why the uniform application of these fundamental norms of international criminal law must not be compromised by the establishment of various layers of criminal justice mechanisms, including possible regional criminal courts. If their application was not uniform, then the differing legal interpretations emanating from the proliferation of justice mechanisms – the ICC, special purpose internationalized courts, regional criminal courts and national courts – would ultimately lead to uncertainty as to the scope of these important legal principles. In essence, the idea that different courts would ‘duel’ as to the meaning and application of those fundamental notions that underpin international criminal law would muddy the waters, rather than clarifying and strengthening those standards that the international community has established and to which it now demands universal adherence.
We are, for example, already seeing some differences in important aspects of international law between the jurisprudence of the International Court of Justice and the ad hoc Tribunals, a development that creates an element of confusion with regard to fundamental principles.[51] While this is perhaps an unavoidable result of the increasing number of international judicial tribunals, similar contradictions in the principles of substantive international criminal law would be most unfortunate and would create problems in the determination of disputes and the process of accountability. Given the very nature of international criminal law, it is important not to undermine the authority and coherence of the international criminal justice system.
The ICC has jurisdiction in relation to several international crimes, each of which represents a gross violation of universal human rights norms. It is clear, however, that the ICC is only one element in the overall matrix of enforcement mechanisms designed and created to ensure that these norms are respected and adhered to. In addition to the ICC, a number of ‘sole purpose’ international and internationalized criminal tribunals have been established to deal ex post facto with crimes allegedly committed in specific armed conflicts. Although some of these localized tribunals may also have recourse to local laws, they continue to apply these universal international norms to the specific circumstances before them.
Likewise, another possible institutional method of protecting these norms may be through the establishment of regional criminal law mechanisms, perhaps following in the footsteps of the regionalization of human rights protection and enforcement that has taken place in various regions of the world. However, even though the establishment of a regional enforcement mechanism for international criminal law may be appropriate in certain circumstances – and may even further promote the effectiveness of this process of internationalization of justice – it does not mean that the very nature of international criminal justice is to be compromised.
The universal norms of international criminal law that have developed set absolute minimum standards of acceptable behaviour. Failure to observe these must not be tolerated, as this would represent a failure of the rule of law and thus undermine the very premise of existing (and emerging) legal responsibilities, such as the “responsibility to protect” populations from genocide, war crimes, ethnic cleansing and crimes against humanity endorsed at the World Summit[52] held in New York in September 2005 and recently reaffirmed by the Security Council.[53] The universal nature of international human rights and international criminal law norms forms the foundation of the international community’s continuing attempts to strengthen the effectiveness of the rule of law.
In certain instances, regionalization may even help to advance the development and enforcement of these international criminal norms. It may also contribute to the emergence of further norms, reflecting the international community’s ever-increasing awareness of the sanctity of an individual’s human rights and the importance of putting to an end “impunity for the perpetrators of [international crimes] and thus [contributing] to the prevention of such crimes”.[54] Regionalization cannot, however, be used as a means of turning our back on the important principles that have emerged out of the ashes of past conflicts.
[*] Associate Professor of International Law, University of Western Sydney, Australia; Visiting Professor of International Law, University of Copenhagen, Denmark; Visiting Professional at the International Criminal Court, The Hague, The Netherlands. The views expressed in this paper are the author’s alone.
[1] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’).
[2] See SC Res 1503, UN SCOR, 4817th mtg, UN Doc S/Res/1503 (2003), which refers in preambular paragraph 7 to the “ICTY Completion Strategy” and in preambular paragraph 8 to the “ICTR Completion Strategy”. Paragraph 3 of SC Res 1534, UN SCOR, 4935th mtg, UN Doc S/Res/1534 (2004) emphasizes the “importance” of each of the ad hoc Tribunals implementing their respective Completion Strategies and calls upon the Tribunals to “plan and act accordingly”.
[3] Rome Statute, art 1.
[4] Rome Statute, preambular para 4.
[5] See United Nations, ‘Facts: The International Criminal Court’, online: <www.un.org/
News/facts/iccfact.htm> (last accessed on 20 January 2002).
[6] SC Res 1674, UN SCOR, 5430th mtg, UN Doc S/Res/1674 (2006), preambular para 3.
[7] Having said this, there is certainly an argument to suggest that, by its very nature, criminal law is an appropriate area of law to be the subject of a gradual process of harmonization. This issue is, for example, the subject of much debate in the broader context of European integration within the European Union. There is much conjecture, however, as to what ‘harmonization’ means (and should mean) in this context: see, for example, Andre Klip, ‘European Integration and Harmonisation and Criminal Law’ in Deirdre M Curtin et al, European Integration and Law (Antwerp Publishers, 2006) 109-153.
[8] United Nations, International Law Commission texts, ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’ (adopted by the International Law Commission in its second session in 1950), online: <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf> (last accessed on 6 June 2006) principle II. In December 1946, the United Nations General Assembly had affirmed “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal” and had directed the International Law Commission to formulate those principles for the purposes of codification: GA Res 95(I), Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal, UN GAOR, 1st sess, 55th plen mtg, UN Doc A/Res/95(I) (1946).
[9] Judgment, ‘Judicial Decisions Involving Questions of International Law--International Military Tribunal (Nuremburg), Judgment and Sentences’ (1947) 41 American Journal of International Law 172, 220-221.
[10] Charter of the Nuremberg International Military Tribunal, annexed to the 1945 London Agreement for the Establishment of an International Military Tribunal (8 August 1945) (82 UNTS 279, 282).
[11] For example, the concept of a formalized crime of ‘crimes against humanity’ was introduced into the Nuremberg Charter (article 6(c)) and then applied to actions that took place at an earlier time. It is unclear whether such a crime existed coincidentally under customary international law: see, for example, the decision of the High Court of Australia in Polyukhovich v Commonwealth and Another [1991] HCA 32; (1991) 172 CLR 501, 587-590 (Brennan J) and 664-677 (Toohey J).
[12] United Nations Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc S/25704 (1993), para 34.
[13] The crimes for which the ICTY has jurisdiction are grave breaches of the Geneva Conventions of 1949 (art 2), violations of the laws or customs of war (art 3), genocide (art 4) and crimes against humanity (art 5): United Nations Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res 827, UN SCOR, 3217th mtg, UN Doc S/Res/827 (1993) (‘ICTY Statute’). The crimes for which the ICTR has jurisdiction are genocide (art 2), crimes against humanity (art 3) and violations of article 3 common to the Geneva Conventions and of Additional Protocol II (art 4): United Nations Security Council, Statute of the International Tribunal for Rwanda, SC Res 955, UN SCOR, 3453rd mtg, UN doc S/Res/955 (1994) (‘ICTR Statute’).
[14] The respective definitions of the crime of crimes against humanity in the ICTY and ICTR Statutes are different. However, with the provisions of the ICTR Statute and the Rome Statute (art 7(1)) in mind, the subsequent jurisprudence of the ICTY confirmed that it is necessary to prove inter alia that the actions took place within the context of a “widespread or systematic attack against any civilian population” for the crime to have been committed: see, for example, ICTY, Trial Chamber Judgement, Prosecutor v Tihomir Blaskic (3 March 2000) para 202.
[15] See the preamble to both the ICTY Statute and the ICTR Statute.
[16] These include the right of victims to participate “at stages of the proceedings determined to be appropriate by the Court” (Rome Statute, art 68(3)) and the formalization of principles of reparations “to, or in respect of, victims” (Rome Statute, art 75).
[17] For example, Professor Antonio Cassese believes that the definition of Crimes against Humanity in article 7 of the Rome Statute is in certain aspects narrower and in other aspects broader than under customary international law: see Antonio Cassese, International Criminal Law (Oxford University Press, 2003) 91-94.
[18] Preambular paragraph 6 of the Rome Statute recalls that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.
[19] Under the system of complementarity, a case is inadmissible before the Court where inter alia it “is being investigated or prosecuted by a State which has jurisdiction over it, unless that State is unwilling or unable genuinely to carry out the investigation or prosecution”: Rome Statute, art 17(1)(a).
[20] Separate Opinion of Judge Simma, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment of 19 December 2005), online: <http://www.icj-cij.org/icjwww/idocket/ico/icoframe.htm> (last accessed on 2 July 2006), para 39.
[21] Hamdan v Rumsfeld, 126 S. Ct. 2749 (2006) (Docket Number 05-184). On 29 June 2006, the United States Supreme Court, by a five to three majority, strongly limited the power of the Bush Administration to conduct trials in the Military Commissions. Speaking for the majority, Justice John Paul Stevens said that “[w]hether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed”, principally because its structure and procedures violated both the Uniform Code of Military Justice and the Geneva Conventions: Judgment, 49.
[22] Official Document, ‘United Nations General Assembly Definition of Aggression Resolution 3314 (XXIX)’ (1975) 69 American Journal of International Law 480.
[23] Rome Statute, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), art 5(2).
[24] Ibid.
[25] New Zealand has implemented the Rome Statute into its domestic laws through the International Crimes and International Criminal Court Act 2000.
[26] See, for example, Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621, where the Full Court of the Federal Court held, by majority, that rules of customary international law making genocide a crime were not part of Australian common law.
[27] Rome Statute, preambular para 6.
[28] SC Res 1674, UN SCOR, 5430th mtg, UN Doc S/Res/1674 (2006), para 7.
[29] Ibid.
[31] European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953); American Convention on Human Rights 1969, opened for signature 22 November 1969, 9 ILM 673 (entered into force 18 July 1978); and African Charter on Human and Peoples’ Rights 1981, opened for signature 27 June 1981, 21 ILM 58 (entered into force 21 October 1986).
[32] Arab Charter on Human Rights 1994, adopted by the Council of the League of Arab States on 15 September 1994.
[33] In 1997, largely due to pressure by a group of interested Non-Governmental Organisations, an Asian Charter of Human Rights was concluded. This instrument has, however, had little tangible effect in terms of ‘regionalizing’ human rights concerns. It should be noted, however, that 10 regional countries – Bangladesh, China, India, Indonesia, Japan, Malaysia, Pakistan, Philippines, Republic of Korea and Sri Lanka - were recently elected by the United Nations General Assembly onto the newly established Human Rights Council, which replaced the Human Rights Commission in March 2006.
[34] The territorial jurisdiction of the ICTY is “the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters”: ICTY Statute, SC Res 827, UN SCOR, 3217th mtg, UN Doc S/Res/827 (1993) art 8. The territorial jurisdiction of the ICTR is “the territory of Rwanda including its land surface and airspace as well as… the territory of neighbouring States in respect of serious violations of international humanitarian law committed by Rwandan citizens”: ICTR Statute, SC Res 955, UN SCOR, 3453rd mtg, UN doc S/Res/955 (1994) art 7.
[35] See article 24(1) of the ICTY Statute and article 23(1) of the ICTR Statute respectively.
[36] For a description of the competence of the Special Court for Sierra Leone, see Steven Freeland, ‘Child Soldiers and International Crimes – How Should International Law be Applied?’ (2005) 3 New Zealand Journal of Public and International Law 303.
[37] For a discussion of the ‘localized’ Asian approach to human rights and international criminal law enforcement mechanisms, see Steven Freeland, ‘Towards Universal Justice – Why Countries In The Asia / Pacific Region Should Embrace The International Criminal Court’ (Paper presented at the 14th Annual Conference of the Australian and New Zealand Society of International Law ‘Pacific Perspectives on International Law’, Wellington, New Zealand, 29 June – 1 July 2006).
[38] The States parties from the region, and the date of their ratification, are as follows:
Fiji (29 November 1999), New Zealand (7 September 2000), Marshall Islands (7 December 2000), Nauru (12 November 2001), Cambodia (11 April 2002), Australia (1 July 2002), Timor-Leste (6 September 2002), Samoa (16 September 2002) and Republic of Korea (13 November 2002). It should be noted that this list does not accord with the States parties in the broader United Nations grouping of Asian States, which does not include Australia and New Zealand, but does include Cyprus (7 March 2002), Mongolia (11 April 2002), Jordan (11 April 2002), Tajikistan (5 May 2002) and Afghanistan (10 February 2003).
[39] Gary Walter Florkowski, Managing Global Legal Systems: International Employment Regulation and Competitive Advantage (Routledge Publishers, 2006) 71.
[40] On 16 June 2006, the United Nations Security Council, acting under Chapter VII of the United Nations Charter, noted the decision of the President of The Special Court for Sierra Leone to transfer the trial of Mr Taylor from the seat of that court in Freetown to the Netherlands: SC Res 1688, UN SCOR, 5467th mtg, UN Doc S/RES/1688 (2006). The trial and any appeal remain within the jurisdiction of The Special Court for Sierra Leone, but will take place at the premises of the International Criminal Court in The Hague.
[41] A well known example was the landmark Velásquez Rodríguez Case (1988) before the Inter-American Court of Human Rights (Series C No 4, (1988) 9 Human Rights Law Journal 212), which dealt with the systematic practice of forced disappearances that occurred during a period of political turbulence, violence and repression in Honduras. In that case, the court applied various fundamental human rights – the right to life, humane treatment and liberty – to find that the Government of Honduras had breached the American Convention of Human Rights. The court was not competent to look at these actions from an international criminal law viewpoint – that is, to determine who might bear individual criminal responsibility for these actions – but it is clear from the circumstances that actions constituting an international crime(s) had also been committed in the implementation of the Government’s policies.
[42] See, for example, ICTY, Trial Chamber Judgment, Prosecutor v Milorad Krnojelac (15 March 2002) para 431, where the Tribunal confirmed that the actus reus of the crime of Persecution consists of an act or omission that “discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law”.
[43] See, for example, Separate Declaration of Judge Shahabuddeen in ICTY, Appeals Chamber Decision on Interlocutory Appeal by Momcilo Krajišnik, Prosecutor v Momcilo Krajišnik (14 February 2002) where the Judge confirms that the relevant human rights treaties may apply in addition to the minimum rights guaranteed to an accused by the ICTY Statute.
[44] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[45] ICTR, Appeals Chamber Decision, Jean-Bosco Barayagwiza v The Prosecutor (3 November 1999) para 40.
[46] ICC, Appeals Chamber, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Situation in the Democratic Republic of the Congo (13 July 2006) para 38. Article 21(3) of the Rome Statute provides: “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status”.
[47] Article 75(1) of the Rome Statute provides that the Court is to “establish principles relating to, or in respect of, victims, including restitution, compensation and rehabilitation”. The Court can make orders in relation to such reparations (Rome Statute, art 75(2)). Rule 89 of the Rules of Evidence and Procedure of the ICC provides for victims to be able to make an application to the Registrar of the Court to participate in proceedings before the Court. The precise scope of this right has been the subject of consideration by the Court, with the Prosecutor arguing unsuccessfully that it does not extend to the investigative phase of a situation: see, for example, ICC Pre-Trial Chamber 1, Prosecution’s Observations on the Applications of Applicants a/0001/06 to a/0003/06, Situation in the Democratic Republic of the Congo, 6 June 2006.
[48] As an illustration, the States Parties to the Rome Statute that are classified as ‘Asian States’ include such diverse States (both culturally and geographically) as Afghanistan, Cyprus, Jordan, Fiji, Mongolia, Republic of Korea and Samoa: Website of the International Criminal Court, online: <www.icc-cpi.int/region&id=4.html> (last accessed on 16 February 2007).
[49] See Henry J Steiner and Philip Alston, International Human Rights in Context (Oxford University Press, 2nd ed, 2000) 781.
[50] Many human rights scholars use this term to collectively describe the Universal Declaration of Human Rights 1948 (GA Res 217 (III), International Bill of Human Rights, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/217(III) (1948) at 71), the ICCPR and the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[51] See, for example, ICTY Appeals Chamber Judgement, Prosecutor v Dušco Tadić (15 July 1999) where the Tribunal in essence rejected the ‘direct control’ test outlined by the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 14 in relation to the question of attributability of actions by the Bosnian Serb armed forces to the Federal Republic of Yugoslavia, applying instead an ‘overall control’ test.
[52] See, for example, United Nations, ‘World Summit Achieved Concrete, Significant Gains in Human Rights, Rule of Law, Secretary-General Says in Address to Universidade Nova de Lisboa’ (Press Release SG/SM/10161, 12 October 2005), online: <http://www.un.org/ News/Press/docs/2005/sgsm10161.doc.htm> (last accessed on 14 June 2006).
[53] See SC Res 1674, UN SCOR, 5430th mtg, UN Doc S/Res/1674 (2006), para 4.
[54] Rome Statute, preambular para 5.
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