The Criminal Liability of Asterixia - Essay Example

International Criminal Law Introduction: The basic premise that underlies human rights law is the fact that they are universal1, and therefore transcend social, cultural and political barriers and differences2. An international crime cannot be left within the exclusive jurisdiction of the national authority that would normally exercise control over such instances.3 Included within the framework of such international crimes are war crimes, genocide, crimes against humanity, torture and aggression4 and international criminal law is the law that governs such crimes.5 As a result of the civil war that has broken out in Asterixia since 1999, there is evidence existing that gross human rights violations have taken place - “crimes against humanity”6 or crimes committed within the context of a war situation. In assessing the criminal liability that will accrue upon the state of Asterixia, the provisions of various international conventions must be considered while criminal liability of President Killinger and General Nipochet could arise under the ICTY which has clearly spelt out the liabilities of a Commander for atrocities committed by subordinates and be adjudicated through the ICC. The term “crimes against humanity” was first coined after the massacre of the Armenians by the Turks in 19157 however all such diplomatic initiatives after World War I to “act on behalf of humanity” proved inconclusive8. The International Military tribunal at Nuremberg was criticized on the basis of it being equivalent to implement of justice by the victor9 however it was the first step to the setting up of an international forum to question State immunity in the case of international crimes.10 But as deGuzman points out, it was only after the establishment of the ad hoc tribunals at Yugoslavia in 1993 and Rwanda in 1994 that international justice has been activated11. The ICTY12 was authorized to bring to justice and prosecute those persons accused of crimes against humanity “when ….directed against any civilian population.”13 The ICTR on the other hand, came into being to tackle the heinous criminal activity generated by the Rwandan conflict13a – however both these tribunals have made it possible to try individuals for their crimes in an international criminal forum. The International criminal Court which came into being in 2002, has jurisdiction over nationals for crimes occurring on the territory of all states that have ratified the Rome Statute.14 Article 98(2) of the Rome Statute is specifically meant to protect against the ICC being used as a basis for political persecution.15 The criminal liability of Asterixia: Within the sphere of international law, every State possesses an international legal personality, which implies that a State has certain rights and obligations. Asterixia is a signatory to the 1948 Universal declaration of Human Rights and the 1969 Vienna Convention on the Law of Treaties. Thus, by virtue of its identity as a legal personality, it is entitled to take up the case before international tribunals and courts for the human rights violations that have occurred within its borders – it is “in reality asserting its own rights” to ensure its’ “subjects respect for the rules of international law.”16 According to Article 34 of the ICJ statute, it is only the State that can be a party in cases that come up before it, although the criminal acts have been perpetrated by individuals. Therefore, Asterixia will be liable for the human rights violations of both its subjects, President Killinger and General Nipochet. In assessing the criminal liability of Asterixia, it must be noted that the State is not a signatory to the 1948 Genocide Convention, the 1973 Apartheid Convention, neither has it signed the 1998 Rome Statute of the International Criminal Court. As a result it cannot be bound by contractual obligations arising out of these treaties, since according to Article 34 of the Vienna Convention, the principle of Pacta Tertiis Nec Nocent Nec Prosunt will apply in this case, which makes it difficult to ensure that the State is brought to justice for specific violations such as the executions, religious violations and ethnic cleansing activities which would follow under the purview of the treaties mentioned above. For example, Kovacs has demonstrated the problems inherent in implementing the mandates of the United Nations which is a Universal body, in the field of terrorism through the application of the pacta tertiis principle.17 However, Milaninia has assessed the ramifications of this principle which would traditionally prevent the International criminal Court from modifying the rights of third parties18. She concludes that where non-parties to the Rome Statute are concerned, no state has exclusive jurisdiction and ICC’s jurisdictional base as the adjudicator of crimes against humanity could provide an exception to the pacta tartiis principle. Moreover, the Danzig Railway Officials case19 established that while international law governs the relations between independent States, as also spelt out in the Lotus case20, nevertheless an international agreement or treaty is also intended to establish certain rules and obligations on the part of individuals which are “enforceable by the national courts.”21 The complex interaction between politics of individual states and the execution of international criminal law within an international forum which has limited the scope of international justice, has been pointed out by Pham22, who however, is cautiously optimistic about the potential of the ICC to adjudicate international justice where crimes against humanity are concerned, such as those that have arisen in the case of Asterixia. As Mirceva explains, the constitution of the ICC is a significant development in international criminal law because it is a “multilateral, treaty based, permanent court with the status of an independent international organization.”23 On this basis therefore, the fact that Asterixia is not a signatory to the Rome Statute could limit the jurisdiction of the ICC in what may be construed as an inter-state political dispute between Asterixia and its neighbouring States. Moreover, Steiner points out that a State can resist international law through the “persistent objector doctrine” which is likely to be invoked more with developments in international law24 and Lau corroborates this view by highlighting the fact that unless the universalist nature of human rights law and human rights violations are enforced as jus cogens, they may become susceptible to the persistent objector dioctrine25. However, in view of the fact that Asterixia is a signatory to the Universal declaration of Human Rights and must also enforce individual obligations through its national Courts, it can be held liable. The jurisdictional nature of the ICC is such as to ensure that it complements national jurisdictions, therefore such jurisdiction may be applicable in the case of the crimes that have occurred in connection with the civil war in Asterixia. Moreover, as stated by Lauterpacht, international judicial law making may require that a national Court adapt its laws in order to comply with the requirements and framework of international law in order to ensure equity in adjudication and law making.26 Applying this criterion, it may therefore be noted that the Popeyien arrest of President Killinger in accordance with its own laws may be justified in the interest of equity and doing justice to its citizens, since its citizens have been victims of the atrocities within Titinia which was earlier a part of Asterixia before their declaration of independence. Article VIII of the Genocide Convention allows any of the contracting parties to press for action against genocide to be implemented by the competent United Nations body under the Charter. The atrocities perpetrated by Asterixia have occurred within the territory of Tintinia which is an independent state and a signatory to the Genocide Convention. Therefore, Tintinia can put forth its case in an international forum, utilizing the principles of the genocide Convention. For example, since President Killinger has been arrested by Popeiya and will be tried in the Popeyian Court, the Tintinians can bring against and press for charges against the President for the genocide of Muslims and their ethnic cleansing from Asterixia into Tintinia. In a similar manner, action can also be taken against the President of the State of Asterixia for the human rights violations occurring through the murder of leaders from the opposing political party who are Muslims. General Nipochet in particular, is to be tried in an international Court. Despite the fact that Asterixia is not a signatory to the Apartheid Convention, all of its neighboring states, including Tintinia, are signatories to this Convention. The murder of Muslims under Nipochet’s command has been carried out in Tintinia and Article 2(a)(ii) of the Apartheid Convention clearly stipulates that any infringement of the freedom of ethnic groups or “degrading treatment” will be in violation of the Convention. Thus, the forced sterilization of Muslims, the denial of their religious rights and the execution of Muslim prisoners would all constitute apartheid as defined under this Act, which is deemed to be an international crime, for which Asterixia will be liable. Obelexia may also be deemed liable for criminal acts under the two Conventions mentioned above. Since it has aided Asterixia through the provision of financial support, which has been utilized against ethnic minorities and is also a signatory to the Conventions, it may be held liable, since states may be expected to comply with international laws and Conventions in the interest of equity. The criminal liability of General Nipochet and President Killinger: In assessing the criminal liability of the General and the President and the legality of the Popeyian arrest of President Killinger, there has been a direct abuse of power by the President which has mandated his arrest. The establishment of the International Criminal Court therefore sends out a signal to all those who are in a position of power and are tempted to abuse that power without exercising the concordant responsibility, that they may have to face punishment for their actions and face trial and conviction in courts outside their own turf where they are rulers . For example, despite the desperate efforts of dictator Pinochet to avoid extradition to Spain to avoid trial27, he was finally brought before the Courts of justice and sentenced for his crimes, just as the President of Yugoslavia, Slobodan Milosevic28 spent his last days in prison in the Hague, finally being forced to face the punishment for his crimes. General Nipochet has ordered the rape of Tintinian women, the murder of Tintinian leaders and forcible sterilization of Tintinian Muslims. In so far as international crimes are concerned, General Nipochet will be deemed responsible for the crimes committed by his subordinates because he has directly ordered these acts to take place and will therefore have to assume liability through the phenomenon of Direct Command responsibility. Direct responsibility arises when a leader has actively taken steps to bring about the commission of crimes, such as by issuing direct orders for his subordinates to engage in criminal activity. Article 7(1) of the ICTY statute articulates these parameters as one who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation, or execution of a crime.”29 The distinction between direct responsibility for criminal acts as carried out by General Nipochet and indirect acts as carried out by the President has been spelt out in the case of Prosecutor v Mucic.30 President Killinger will be held liable on the basis of on the basis of an accessorial liability arising by virtue of a position of power, as set out in Article 7(3) of the ICTY: “The fact that any of the acts . . . was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” The indirect liability of the President may therefore be clearly established through the public executions that have taken place, as well as the fact that it was Killinger’s supporters who transported political opponents in Government jeeps to the place where they were killed. This was also the criterion that used in the case of Tadic31 where the Appeals Court held that allegiance to a particular Party and the control exercised by the Party over the persons responsible for criminal acts would be the “crucial test”. Since the President is the leader of the Party, he will be liable. The case of Tadic also laid out that the Statute of the International tribunal as framed for criminal violations within the territory of Yugoslavia is to be interpreted as an international treaty, hence its provisions will be applicable in the case of all States. Moreover, Article 2 and 3 of the Statute specifically deal with human rights violations through criminal actions that arise in a war situation, as is the case in Asterixia and Tintinia, where it can be established that (a) armed conflict exists (b) a sufficient causal link between the crimes and the armed conflict situation can be demonstrated (c) mens rea can be also be established since the intent to execute Muslims and Tintinian freedom fighters can be shown and (d)the actus reus, which is the act of death of the individuals is also a reality – all of these aspects were clearly spelt out in the case of Kordic and Cerkez32 and will therefore be applicable in the context of the crimes against the Tintintians and Popeyians. Conclusion: The role of the State in the conflict and the human rights violations that have taken place will be validated through the criterion established in the Tadic case, since through leadership by President Killinger and General Nipochet, the State of Asterixia has had a role in “organising, coordinating or planning the military actions” and the two leaders will be regarded as de facto organs of the State in so far as the crimes are concerned. There are significant political implications of individual sovereignty of States that need to be considered in this situation and Asterixia is not a direct signatory to the Rome Statute which would make it answerable to the ICC and allow its citizens to be prosecuted in this international Court. However, as laid out in the cases of Tadic and Kordic and Cerkez, it is likely that the provisions of Articles 2 and 3 of the ICTY statute will apply in this situation, since the criminal violations have occurred within the framework of an armed conflict. This international tribunal will therefore be in a position to try the two individuals, Killinger and Nipochet on the bases of the Command responsibility theory wherein they have to accept direct and/or indirect responsibility for the criminal actions of their subordinates. Moreover, since the jurisdiction of the International criminal Court is also complementary to national jurisdictions and the authority of the ICC in the international forum is increasingly being recognized and validated as evidenced in the convictions of several dictators including Saddam Hussein, it appears very likely that the leaders of Asterixia will be held accountable for their crimes and will face judgment and trial. The fact that Popeyia has arrested President Killinger will therefore not be deemed to be a violation of State immunity or sovereignty, since there have been human rights violations against Popeyian citizens and the President is responsible for them. Bibliography Books/Journal Articles: * Binder, Guyora, 1999. “Cultural relativism and Cultural Imperialism in Human Rights Law.” 5 Buff.Hum.Rts.L. review, 211 * Cassase, Antonio, 2003. “International Criminal Law” Oxford University Press * de Guzman, Margaret M, 2000, “The Road from Rome: The Developing Law of Crimes against Humanity”, Human Rights Quarterly, 22(2): 335-403 at 336 * Kittichaisaree, 2001.”International criminal law” Oxford University Press * Kovacs, Peter, 2004. “The United Nations in the Fight against International terrorism.” Miskolc Journal of International Law, 1(1): 9-18 * Lau, Holning, 2005. “Rethinking the Persistent Objector Doctrine in International Human Rights Law.” Chicago Journal of International law, 6(1): 495-511 * Lauterpacht, 1933. “The function of the law in the international community” * Magnarella, Paul, 2001. “Justice in Africa : Rwandas genocide, its courts, and the UN Criminal Tribunal” * Milaninia, Nema, 2007. “One step forward, two step backwards: Addressing Objections to the ICC’s Prescriptive and Adjudicative Powers.” International Studies Journal, 3(11): 31 * Mirceva, Stojanka, 2004. “Why the International Criminal Court is different.” Peace and Conflict Monitor, January 26. [online] available at: www.monitor.upeace.org/archive.cfm?id_article=133 * Pham, Peter J, 2004. “Politics and International Justice in a World of States.” IN “War crimes and realpolitik: International justice from World War I to the 21st Century (Jackson Nyamuga Maogoto edn) Boulder: Lynne Reinner Publishers. * Ratner, Steven R. and Jason S. Abrams, 2001. “Accountability for Human Rights Atrocities in International Law – Beyond the Nuremburg Legacy.” Oxford: Oxford University Press * Steiner, Henry J and Alston, Philip, 1996. “International Human Rights in context: Law, Politics, Morals.” Oxford, at pp 187 * Steiner, Ted, L, 1985. “The approach of the different drummer: The principle of the persistent objector in international law.” 26 Harvard International law Journal 457 at 463. * USA maneuvers to weaken international Court [online] available at: http://web.amnesty.org/wire/October2002/ICC * Wilson, Richard J, 2006. “The Pinochet Effect: Transnational Justice in the age of Human Rights.” Human Rights Quarterly, 28(2): 528-544 Cases: * Danzig Railway officials Case (1928) PCIJ * Kordic and Cerkez Case (Trial Chamber), 26 February 2001 * Mavrommatis Palestine Concessions case (1924) PCIJ * Prosecutor v Mucic, ICTY Appeals Chamber , Case no: IT-96-21-Abis at para 34. * Prosecutor v Milosevic, ICTY, No: IT-02-54-T * Tadic Case (Appeals Chamber), 15 July 1999 * The Lotus Case (1927) PCIJ Treaties: * International Military tribunal at Nuremberg, Article 10 [online] available at: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art10 * Statute of the International Criminal Tribunal for the Former Yugoslavia, established on 25th May 1993 and amended in 1998 [online] available at: http://www.icls.de/dokumente/icty_statut.pdf * 1973 Apartheid Convention * 1948 Genocide Convention * 1998 Rome Statute of the International Criminal Court * 1948 Universal Declaration of Human Rights * 1969 Vienna Convention on the Law of Treaties Read More