The International Criminal Court and the Legal Principles Developed by the Ad Hoc Tribunal - Assignment Example

The International Criminal Court and the Legal Principles Developed by the Ad Hoc Tribunal’s for the Former Yugoslavia and Rwanda. Introduction The UN Security Council set up the ad hoc International War Crimes Tribunal for the Former Yugoslavia (ICTY) and Rwanda (ICTR) with the intention of individualizing guilt. The idea was to hold both leaders and individual offenders responsible for crimes against humanity as opposed to entire communities. The UN Security Council had hoped that by taking this approach to culpability, the Former Yugoslavia and Rwanda would find peace.1 Ultimately the ICTY and the ICTR were formed to prosecute humanitarian atrocities that occurred during times of conflict. The establishment of the International Criminal Court (ICC) follows from these legal principles and carries over to the administering of justice to those who commit international crimes of a serious nature and to ensure that victims as well as survivors achieved some measure of satisfaction.2 In other words, the establishment of the ad hoc tribunals of the ICTY and the ICTR are perceived as the “impetus” for the establishment of the ICC which is in turn set up for enforcing the Nuremberg principles of individual accountability regardless of office for violating international law.3 This research is intended to investigate the legal principles developed by the ICTY and the ICTR and the extent to which those principles have been progressed by the ICC. In order to achieve this goal, the legal principles developed by the ICTY and the ICTR will first be analyzed. In the second part of this research the establishment of the ICC and its contribution and expansion of these legal principles will be analyzed. II. The Ad Hoc Tribunals of the ICTY and the ICTR A. Background International law consists of both human rights law and international humanitarian laws which are different but connected. They are connected because both branches of international law involve protecting the individual. International humanitarian laws are necessary for both advancing State responsibility and enforcing “individual criminal responsibility through either domestic courts or international tribunals”.4 Following the Second World War, the establishment of the International Military Tribunals as Tokyo and Nuremberg gave expression to accepted definitions of international crimes such as war crimes, crimes against humanity and crimes against the peace. 5 As a result of a number of contraventions of international humanitarian laws and human rights, the UN Security Council under the authority of the UN Charter 1945 (as amended) set up the ICTY in 1993 and the ICTR in 1994.6 The main purpose of these ad hoc tribunals was for the prosecution of war criminals.7 Both the ICTY and the ICTR were set up under vastly similar conditions and circumstances. The ICTY was set up in 1993 for the prosecution of individuals alleged to have committed war crimes, crimes against humanity and genocide after 1991 in the former Yugoslavia. The UN Security Council also established the ICTR in 1994 for the prosecution of individuals who allegedly committed crimes of genocide, war crimes and crimes against humanity in Rwanda in 1994. 8 Political instability in the Socialist Republic of Yugoslavia during the decade of the 1980s gave way to a collapse via a series of armed disturbances that began in 1991. These disturbances were marked by “large-scale violations of international criminal law” particularly targeting civilians and “most notably sexual offences and the practice of ‘ethnic cleansing’”.9 Having established the ICTY, the UN Security Council Resolution 927 (1993) explained that having regard to the copious reports of “flagrant violations of interntional humanitarian law” in the former Yugoslavia”, the purpose of the ICTY was for the ad hoc Tribunal to : Put an end to such crimes and take effective measures to bring to justice the persons who are responsible for them…the establishment of an international tribunal and the prosecution of persons…will contribute to ensuring that such violations are halted and effectively redressed.10 Reports of genocide in Rwanda in 1994 likewise invoked the UN Security Council’s attention and passage of Resolutions for the creation of the ICTR.11 The ICTR and the ICTY are similarly constituted with a Prosecutor’s office, a Registry and three individual Trial Chambers. Both the ICTR and the ICTY share the same appellate Chamber which is located at The Hague. The shared Appeals Chamber is to ensure that the jurisprudence of both ad hoc tribunals is consittent.12 Each of the ad hoc tribunals are governed by each of their statutes and are attached as annexes to the UN Security Council Resolutions authorizing their creation. The law applicable to both the ICTY and the ICTR is international law which prevails over state courts. The ad hoc tribunals are located outside of both jurisdictions and are operated by “international “professionals”. 13 It was anticipated that the ad hoc tribunals would not only do justice for the victims, but also for the international community.14 In any event both the ICTY and the ICTR have statutes that codify international law and its decisions have created authority for “clarifying international legal principles”.15 Both the ICTY and the ICTR have influenced the administration of international criminal justice in both the ICC and the International Court of Justice (ICJ).16 Ultimately, the ad hoc tribunals of the ICTY and the ICTR are said to have substantially contributed to the “substantive content” of international criminal law and its enforcement.17 B. Legal Principles of the ICTY and the ICTR The judgments in the national war crimes trials arising out the Nuremberg and Tokyo Military Tribunals produced the world’s first adjudication of international war crimes as well as crimes against humanity. National courts elaborated on and developed those judgments in the years that followed. Once the ICTY and the ICTR began to hear international crimes’ cases, the paucity of these judgments became obvious. The fact is, the ICTY and the ICTR have successfully developed a body of law that defines and identifies the range of war crimes, genocide and crimes against humanity. These ad hoc tribunals have also widened the scope of liability, the available defenses, justifications and excuses and have explored the scope of procedure, protection of the accused and what amounts to an appropriate punishment.18 It is important to note that international criminal tribunals and their founding statutes typically identify offences but fail to establish what elements constitutes these offences. As Cassesse explaihns: The crimes were not enumerated as in a criminal code, but simply as specification of the jurisdictional authority of the relevant court. The value and scope of those enumerations was therefore only germane to the court’s jurisdiction and did not purport to have a general reach.19 It is therefore left to the ad hoc tribunals to build and develop legal principles that could reflect a body of substantive law. The Statutes of the ICTY and the ICTR, like other international criminal tribunals, do not set forth the specific elements of international crimes. Instead they rely on different sources of law including international conventions, customs and the principles enunciated by “civilized nations.”20 Even so, the ICTY and the ICTR’s statutes and jurisprudence reflect or suggest the crystallization of the customary international criminal law.21 This is evidenced by the introduction of the legal principle of mullum crimen lege which require that the tribunal apply the rules relative to international humanitarian law.22 There are two generally accepted requirements that must be satisfied in order to determine what amounts to customary international law. First the conduct prohibited must be such that the prohibition is firmly established in state practice and the state practice must be such that it is well recognized and founded on the legal principle of opinio juris.23 In the event the legality principle is applicable to the ad hoc tribunals, the criminal elements that are essentially opinio juris and are part of customary international law practices at the time of the offence ought to apply.24 In other words, if there is a specific rule under customary international law, a Trial Change ought to only convict if that specific rule is consistent with the legality principle, or is sufficiently defined so as to be adequate notice to the offender.25 In this regard, the Trial Chamber is required to look to several jurisdictions and deduce a common jurisprudence prior to defining a crime under the specificity principle.26 Moreover, when relying on customary international law, the relevant Trial Chamber should only look to state practice that was in effect at the time of the relevant offence.27 The first case brought to a completion by the ICTY sets out the conditions to be satisfied for prosecution of an offence by the Tribunal under Article 3 of the International Tribunal.28 First the offence must be “an infringement of a rule of international humanitarian law”.29 Secondly, the rule is required to “customary in nature’ or if it emanates from a treaty, the treaty’s “conditions must be met”.30 Thirdly, the offence must be of a serious nature in that it contravenes a “rule protecting important values” and has “grave consequences for the victim”.31 Finally, the offence must provide for individual culpability under either a rule of “customary or conventional law”.32 The Trial Chamber in the first case completed by the ICTY also explained how individual criminal responsibility can be substantiated. The Trial Chamber began by referring to the Trial of Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg (1950). It was establishing during these proceedings that even if a treaty failed to make provisions for individual criminal responsibility, it did not mean that such a prosecution was not possible.33 It was also determined by the Nuremberg Tribunal that individuals who committed violations of the war time rules can incur personal liability because in both these rules and state practice there is a: Clear and unequivocal intention to criminalize the prohibition, including statements by government officials and international organizations, as well as punishment of violations by national courts and military tribunals. 34 Moreover, the Nuremberg Military Tribunal articulated the presumption that violations of international law are authored by individuals. Only when these individuals are made accountable can international law be enforced.35 The reasoning of the ICTY in its first completed case was adopted by the ICTR. 36 Ultimately, the inclusion of command responsibility in Article 7 of the ICTY Statute and Article 6 of the ICTR Statute and the interpretation of command responsibility according to customary international law is a manifestation of the development of legal principles by the ad hoc tribunals for the definition of international criminal law and its enforcement via individual criminal responsibility.37 Among the ICTY and ICTR’s most significant contributions to international criminal jurisprudence is that these ad hoc tribunals have developed a legal path for the ICC and other international tribunals to follow. These ad hoc tribunals have introduced into the international criminal regime a modernized international humanitarian law that can be applied judicially and further demonstrates that accountability and liability can function to restore peace and the rule of law in worn torn nations.38 II. The ICC and the Legal Principles Developed by the ICTY and the ICTR A. The Creation of the ICC The ICC was established by the Rome Statue of the ICC 2002 which was a result of a UN General Assembly conference held in Rome in June 1998.39 Unlike the ad hoc tribunals of the ICTY and the ICTR which were established by the UN Security Council and the Military Tribunals of Nuremberg and Tokyo which were established by allies of the Second World War, the ICC was established by an international treaty requiring “strong support” for validation.40 The popular perception was that the previous tribunals were forced on states. By having states support the creation of the ICC it would have greater legitimacy than its predecessors. 41 In relying on ratification of the Rome Statute creating the ICC, Member States would become duty bound to accept the ICC’s jurisdiction “over their nationals and territories”.42 It also meant that Member States would cooperate with requests by the ICC and would implement corresponding legislation. In this regard the ICC needed to have a Statute (treaty) for meeting two goals. First the ICC “had to be robust enough to achieve States’ desire for a strong institution” with the ability to “effectively” address the “most serious crimes of concern to the international community”.43 Secondly, the Statute had to respond to specific concerns “including the view that the Court” should not intervene in the domestic affairs of the contracting states.44 The ICC was not established to usurp the criminal jurisdiction of domestic criminal justice systems. States take primary responsibility for the prosecution and punishment of crimes. The ICC was established to prosecute in cases where national courts were either unwilling or unable to prosecute and/or punish. In this regard, the ICC serves a similar function as other tribunals that came before it. However, what distinguishes the ICC from previously established international criminal tribunals was that they were created in response to a specific event or episode of international law violations. The ICC however was retroactive rather than reactive.45 Given the unique factors involved in the creation of the ICC there are certain specific circumstances that follow. For instance, the ICC’s jurisdiction is entirely limited. It cannot exercise universal jurisdiction in that it will only have jurisdiction over matters referred to it by the UN Security Council or over individuals who are from jurisdictions or commit offences in jurisdictions that are contracting states.46 Another consequence of the unique nature of the creation of the ICC is that it compliments and supports “national jurisdictions” and is characterized as a “court of last resort”.47 It can only assume jurisdiction where state are either “unwilling or unable genuinely to investigate or prosecute offences”.48 It will be for the ICC to determine if the state is genuinely unable or unwilling to prosecute. 49 Obviously, the ICC’s mandate requires that it has the cooperation of its member states to succeed. For instance, the ICC relies on states for the arrest or surrender of individual suspects or for gaining access to “their territories”.50 By subscribing to the treaty creating the ICC, states undertake to cooperate with the ICC. B. The Substantive Law of the ICC By virtue of Article 5(1) of the Rome Statue of the ICC 2002 the ICC has jurisdiction to hear “the serious crimes of international concern” including genocide, crimes against humanity, aggression and war crimes.51 However, by virtue of Article 5(2) the ICC will not be able to hear cases of aggression until such time as the offense is defined and sets conditions for the ICC’s jurisdiction.52 Unlike the ICTY and the ICTR Statutes, the Rome Statue of the ICC provides what is characterized as “unprecedented” detailed definitions of crimes against humanity and war crimes.53 When negotiating the definition of these crimes, participants wanted there to be certainty and did not want to grant too much creative license to judicial interpretation of the applicable crimes.54 In this regard, Article 22(2) cautions that the definitions provided in the 2002 Statute “shall be strictly construed and shall not be extended by analogy”.55 Cryer et al also note that the definitions provided for in the Statute must also be read together with the “principles of liability” contained in Part 3 of the Statute and: are further elaborated in the Elements of Crimes which are used by the Court in the interpretation and application of the provisions of offenses.56 These definitions however, can be viewed as the ICC’s progression of the legal principles developed by the ICTY and the ICTR. For instance it is perceived that the definitions of crimes in the Rome Statute represent a codification of pre-existing customary international criminal law. In other words, the Rome Statute crystalizes and clarifies what was previously an unwritten law and as such “mover the law along”.57 Although the Statute goes beyond merely codifying some of the laws, it has nonetheless “contributed to the development of customary law”.58 There are also some provisions in the Rome Statute that do not go as far as customary law goes. The point is addressed by Article 10 of the Rome Statute which provides that the Statute does not constrain or stifle current or developing principles of international law other than for the Statute’s purposes.59 As Cryer et al explains: This both mitigates the concern that the Statute will in some way freeze the development of customary international law and confirms that so far as the Court is concerned it must apply the provisions in the Statute even if customary law creates wider offences.60 The ICTY noted in Furundzija ICTY T. Ch. II 10.12 1998 that by and large, the Rome Statute may be looked upon as “indicative of legal views, i.e. opionio juris of a great may of States”. 61 The ICTY went on to note that: Depending on the matter at issue, the Rome Statute may be taken restate, reflect or clarify customary rules or crystallize them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.62 Even so, the ICC is constructed around a legal system that relies on state compliance to sustain its standing as a global institution. The independence and autonomy of the prosecutor in being able to decide who and what to prosecute is already problematic for obtaining state compliance. The US in particular is not amenable to the idea of trusting an institution that it is unable to control in a direct way.63 Although there are limitations on the prosecution’s powers such as requiring permission of the Pre-trial Chamber for preferring a charge, the US is not entirely convinced that the Prosecution is sufficiently accountable or answerable.64 The US has systematically refused to join the ICC because it is satisfied that it threatens the US’s sovereignty and is entirely inconsistent with its adherence to a system of “checks and balances”.65 The fact is, the US as leader of the free world and its refusal to subscribe to the ICC for fear of its challenge to the legitimacy of its own leadership is only symptomatic of the challenges that the ICC may face in the years ahead in sustaining its legitimacy and obtaining individual state compliance and cooperation. As of 2008, the ICC’s prosecutor has not yet requested authorization from the Pre-Triam Chambers to investigate any of the 2500 complaints received. These complaints primarily came from private parties. A majority of these complaints have been found to be outside the ICC’s jurisdiction either because of the nature of the offences alleged, the time when the offence was alleged to have been committed or the lack of either territorial or personal jurisdiction. In other words, the ICC has not addressed the merits of any of the offences which indicates its limited jurisdiction and its “complimentary” relationship to states.66 At this point it would appear that aside from codifying the legal principles advanced by the ICTY and the ICTR, the ICC has not yet had an opportunity to put those legal principles to practice. As of 2003, the ICC’s prosecutor was investigating three matters that were referred to the ICC. These matters are related to Uganda, the Democratic Republic of Congo and Darfur in Sudan. In addition the ICC prosecutor is examining a matter related to the Central African Republic to discern whether or not to conduct an investigation. As for the Uganda matter, the ICC issued arrest warrants but those arrest warrants have not been executed. Unless states and international organizations cooperate with these warrants, “there can be no trials.67 The matter under investigation in the Democratic Republic of Congo is progressing more satisfactorily. This is the first case where national authorities surrendered the accused persons to the ICC. The Darfur matter was referred to the ICC by the Security Council.68 Thus far the trial of one accused person has been stayed to permit the prosecutor to appeal a ruling by the Trial Chamber.69 The other cases have also not proceeded to trial as yet as preliminary issues have delayed trials on the merits.70 Sudan is not a member state to the ICC and although three arrest warrants were issued, officials in Sudan have been entirely uncooperative to the extent that the warrants have not been executed.71 Despite questions concerning its legitimacy with respect to the tenuous reliance on state compliance and cooperation, the ICC, like the ICTY and the ICTR builds on the legal principle that “general principles of law” is a “subsidiary source of international law”.72 The ICTY has stated this legal principle in unequivocal terms. For instance in Prosecutor v Kupreskic et al. Judgement Case No. IT-95-16-T. Ch. II 14 January 2000 the ICTY stated that it had the authority to rely on general principles of law when there were gaps in either conventional or customary international law relative to specific legal questions.73 Article 21 of the ICC Statute 2002 provides for the application of general principles of law in much the same manner as the ICTY enunciated in Prosecutor v Kupreskic et al. Article 21 provides that the court shall first apply the ICC Statute, criminal elements and the ICC Statute’s evidence and procedural rules.74 Secondly, the court, where relevant will apply treaties and international law principles and rules “including the established principles of the international law of armed conflict”.75 Article 21(c) reflecting the legal principle enunciated by the ICTY in Prosecutor v Kupreskic et al provides as follows: Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.76 The sharing of this legal principle by both the ad hoc tribunals of the ICTY and the ICTR and the ICC demonstrates the fact that accountability and enforcement have become enshrined in global institutions by virtue of perceptions of global standards. Article 21 clearly reflects that any serious crime with grave consequences will not go unchecked for want of an adequate definition. Any gaps in international law will be filled by reference to shared abhorrence among the international community. The ICC has progressed the legal principles advanced by the ICTR and the ICTY by expressly making provision for them in the text of the ICC Statute. Article 21 ensures that where these legal principles are not codified in the text, general principles of law will be used. In other words, while the ICTY and the ICTR rely on the principle of opinio juris in terms of an unwritten law, the legal principles have been codified by the ICC Statute. Conclusion Unfortunately, in attempting to offset a balance between universal jurisdiction and the integrity of state sovereignty, the ICC has constrained its ability to develop the legal principles advanced by the ICTY and the ICTR. In trying to be complimentary, the ICC has not yet been able to demonstrate that it can foster accountability. Accountability is arguably the primary motivation behind the development of international criminal law and the legal principles put forth for developing it. The international community is convinced that without accountability the atrocities that undermine global peace and security will not be contained. Thus far state cooperation has undermined the ICC’s ability to apply the legal principles enunciated in its statutes If and when the cases set for trial are finally heard, it is anticipated that the complimentary and accountability mandate of the ICC will be effective. At this point Article 18 of the ICC Statute is relatively meaningless in progressing the legal principle of accountability.77 Article 18 provides states with the opportunity to investigate a matter before the ICC prosecutor commences an investigation. If a state refuses to investigate a matter, it is highly unlikely that it will cooperate with the ICC if and when it assumes the investigation. Complicating matters, it will be interesting how the ICC will determine whether or not a state is either unwilling or unable to conduct an investigation of a serious international crime within its jurisdiction. In the final analysis, the ICC Statute has managed to define serious international crimes and this may be the only way that the ICC has progressed the legal principles developed by the ICTY and the ICTR. Only when the ICC has finally heard a case on the merits will it be possible to know just how well those principles can be applied in practice. Bibliography Textbooks Aksar, Y. Implementing International Humanitarian Law. (Psychology Press, 2004). Bassiouni, M. Crimes Against Humanity in International Criminal Law. (Martinus Nijhoff 1999). Cassese, A. International Criminal Law. (Oxford University Press 2008). Cryer, R.; Friman, H.; Robinson, D. and Wilmshurst, E. An Introduction to International Criminal Law and Procedure. (Cambridge University Press 2010). Damgaard, C. Individual Criminal Responsibility for Core International Crimes. (Springer Publications 2008). Malone, L. International Law. (Aspen Publications 2008). Roper, S. and Barria, L. Designing Criminal Tribunals, (Ashgate Publishing 2006). Schabas, W. The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone. (Cambridge University Press, 2006). Articles/Journals Bolton, ‘The United States and the International Criminal Court: Remarks to the Federalist Society Washington D.C. November 14, 2002’. Cited in J. Zompetti and S. Zompetti (eds) The International Criminal Court: Global Politics and Quest for Justice. (IDEA Publishing 2004). Chiam, M. ‘Different Models of Tribunals’, cited in D. Blumenthal and T. McCormack (Eds) The Legacy of Nuremberg: Institutional Vengeance? (Martinus Nijhoff Publishers 2008). Danner, A. ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003)97 The American Journal of International Law, 510-552. Karnavas, M. ‘Is the Emerging Jurisprudence on Complicity in Genocide before the International As Hoc Tribunals a Moving Target in Conflict with the Principle of Legality?’ cited in R. Henham and P. Behrens, (eds) The Criminal Law of Genocide: International, Comparative and Contextual Aspects. (Ashgate Publishing 2007). Kirsch, P.‘Introductory Remarks’ cited in M. Politi and F. Gioia (Eds) The International Criminal Court and National Jurisdictions, Vol. 2007. (Ashgate Publishng 2008). Knight, W. ‘Legal Issues.’ cited in J. Tessitore and S. Woolfson (Eds) A Global Agenda: Issues before the 52nd General Assembly of the United Nations.(Rowman and Littlefield, 1997). Mundis, D. ‘The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals’. (2005) 99(1) The American Journal of International Law, 142-158. Mundis, D. ‘Crimes of the Commander: Superior Responsibility under Article 7(3) of the ICTY Statute’. Cited in G. Boas and W. Schabas (Eds) International Criminal Law Developments in the Case Law of the ICTY. (Martinus Nijhoff 2002). Ramiondo, F. General Principles of Law and the Decisions of International Criminal Courts. (BRILL 2008). Scharf, M.‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’. (2000) 49 DePaul Law Review, 925-980. United Nations, ‘Yearbook of the International Law Commission’ A/CN.4/SER.A/1998/Add.1 (Part 1) United Nations Publications. UN Secretary-General , ‘Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808’ (1993) S/25704. van Bowen, T. ‘Victims’ Rights and Interests in the International Criminal Court.’ cited in J. Doria; H. Gasser and M. Bassiouni (Eds) The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko. (BRLL 2009). Williams, S. ‘The Completion Strategy of the ICTY and the ICTR’. cited in M. Bohlander (Ed) International Criminal Justice. (Cameron May 2007). Table of Cases Furundzija ICTY T. Ch. II 10.12 1998. Prosecutor v AKayeau, Judgment 2 September 1999. Prosecutor v Dusko Tadic a/k/a ‘Dule’. Opinion and Judgment of the Trial Chamber, 7 May 1997. Case No. IT-94-1-T. Prosecutor v Furundzija, Case No. IT-95-17/1 Trial Judgment, 10 December 1998. Prosecutor v Kordic and Cerkex, Case No. IT-95-14/2-PT Decision on Joint Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdiction Reach of Articles 2 and 3, 2 March 1999. Prosecutor v Kupreskic et al. Judgement Case No. IT-95-16-T. Ch. II 14 January 2000. The Prosecutor v Thomas Lubanga Dyilo ICC-01/04/01/06 8 October 2010. Prosecutor v Vasiljevic, Case No. IT-98-32-T, Trial Judgment 29 November 2002. Table of Statutes Rome Statue of the ICC 2002. UN Security Resolution 827 (1983). Internet Sources Amnesty International 2007-2008 Fact Sheet Three. http://www.amnestyusa.org/international_justice/pdf/InternationalTribunalsfactsheet.pdf (Retrieved November 2, 2010). Coalition for the International Criminal Court, ‘Media Advisory’ 10 June 2010. http://www.iccnow.org/documents/CICC_MA10June2010.pdf (Retrieved November 3, 2010). ICC Situations and Cases. http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0107/Transcripts/Appeals+Chamber/ (Retrieved November 3, 2010). Read More