The International Tribunal for Yugoslavia - Research Paper Example

Prosecutor v Kuprekic et al (Case No. IT-95-16 T) Judgment 14 January 2000 and Customary International Law The International Tribunal for Yugoslavia (ICTY) is credited with having established the world’s first international criminal tribunal for prosecuting those who have contravened the more serious aspects of humanitarian laws.1 The problem is, defining what amounts to the most serious humanitarian laws under customary international law. Be that as it may, the ICTY is described as a “bold experiment” as it is said to have three significant goals: dealing with international crimes, creating and building on international humanitarian law and documenting the horrors and advances in international jurisprudence.2 Adding to the international regime for humanitarian international laws, the International Criminal Court (ICC) incorporated the draft Elements of Crimes which sets out the definition of humanitarian laws such as genocide, crimes against humanity and war crimes as provided for in the ICC Statute.3 The resulting body of international case law demonstrates that the international judiciary have developed a penchant for judicial creativity which sits somewhere between state practice and opinio juris and ultimately forms the foundations of international customary law.4 In Prosecutor v Kuprekic et al (Case No. IT-95-16 T) the ICTY determined that in determining the appropriate line of customary international law, reference must be had to domestic codes as well as case law.5 Essentially, the ICTY has used as demonstrated in Kuprekic et al national judgments for interpreting and applying treaties as well as customary international law and principles of international law.6 Taking the concept of state practice a step further, the ICTY in Kuprekic et al identified what is referred to as the concept of jus cogens in customary international law.7 Jus cogens takes the position that it is not necessary to conduct a protracted search of national laws for evidence that states are conducting themselves “out of a sense of obligation”.8 In other words certain human rights and concepts of humanity are taken for granted in customary international law. For instance the ICTY in the Prosecutor v Furundfija IT-95-17/I-T (December 10, 1998) ruled that the prohibitions and intolerance of torture are rules of jus cogens as well as the judgments contained in the International Court of Justice and the principles of the Martens Clause are concepts that lead jurisprudence or opinion juris.9 The Martens Clause therefore takes on a significant role in the development of international customary law in that it guides judicial conscience. It is often described as a “norm-creating” instrument of customary international law.10 In this regard the Martens Clause is the Preamble to the Hague Convention on the Laws and Customs of War on Land 1907.11 Ultimately the Martens Clause states that civilians and belligerents “remain under the protection and the rule of principles of law of nations” emanating from “laws of humanity, and the dictates of the public conscience”.12 The preamble has been immortalized in customary international law in that it has been repeated in the Geneva Conventions for the protection of Victims of War 1949, Additional Protocols to the Geneva Conventions 1977 and other international treaties. The Preamble has also been rephrased in the Tehran Conference of Human Rights 1968 and has been referred to in a number of domestic military guidelines including Germany, the US and the UK’s military literature.13 The ICTY reiterated in Martic Case No. IT-95-11-R61 (1996) that prohibitions against assaults on civilians together with principles placing constraints relative to the manner in which warfare may be conducted are creatures of the Martens Clause.14In an advisory opinion of the International Court of Justice it was held that prohibitions and restraints on the use of nuclear weapons are also derived from the operation of the Martens Clause, since the use of nuclear weapons generally causes excessive harm to civilians, something the Martens Clause seeks to prevent.15 Essentially, the Martens Clause engages judicial interpretation of norms to fill in gaps quite simply because there is no “complete code of laws” defining the rules of warfare and humanitarian conduct.16 It therefore comes as no surprise that the ICTY ruled in Prosecutor v Tadic Case No. IT-94-1-T (October 2, 1995), that it was a firmly established principle of international customary law that crimes against humanity were not confined to atrocities committed in the course of a conflict.17 What can be gleaned from this deference to the Martens Clause is an acknowledgement of the concept of the crystallization of generally accepted standards of conduct in the context of human rights and humanitarian concepts. In fact, customary international law is generally described as “the crystallization of past uniform state practice into normative behavior”.18 More importantly, crystallization occurs when a state develops patterns of conduct which “generates a certain threshold of understanding about the content of a rule,” and there is a large consensus among the international community that states should be bound by the threshold under what becomes a “sense of obligation” referred to as the opinio juris.19 The point was made by the ICTY in Kuprekic et al and simplified by the Restatement (Third) of the Foreign Relations Law of the U.S 1987 which states that customary international law is derived: From a general and consistent practice of states which is followed by them from a sense of legal obligation.20 The ICTY stated in Kuprekic et al that the Martens Clause demonstrates in an unambiguous way: …that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or disputes of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystallizing as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.21 The difficulty with the concept of crystallization of customary international law and the reliance on opinio juris and the norms of jus cogens places far too much stock in interpretations by diverse jurisdictions among the international community. The fact is, judicial discretion which can be interpreted and applied differently defines the rules and the norms of international customary laws. This will not only lead to different interpretations of offenses, but will also lead to uncertainty and inconsistency in customary international law. Additionally, there are conflicts and tensions emerging in customary international law as attempts are being made to amalgamate state practices between civil law countries and common law countries.22 Another difficulty with appealing to national norms and practices emanates from the fact that the atrocities typically prosecuted under customary international law are entirely different from those prosecuted at the state level. As Danner and Martinez explain, those crimes committed at the international level are significantly greater in gravity than those committed at the domestic level.23 It is therefore difficult, if not impossible to deduce a norm or a realm of public conscience from among the national environments that might be conducive to the offences of genocide and other atrocities at the international level. In addition, the operation of the doctrine of persistent objector may place constraints on the effectiveness and efficiency of customary international law. The doctrine of persistent objector dictates that when a state consistently registers objections to customary international law, it may not be bound by that law when the customs develops.24 As it is, persistent objection is a viable defence save and except for instances where the norm is qualified as jus cogens. However, very few norms in customary international law qualify as jus cogens.25 Even where norms are qualified as jus cogens they are more effective when fortified by international treaties and conventions. In this regard they provide a more specific definition of the offence and permit a greater opportunity for interpretation and application by domestic courts. For example, although prohibitions against torture are considered to be jus cogens, the international community has indorsed its seriousness and enforceability by virtue of the Declaration of Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment 1975. The 1975 declaration provided the “building blocks” for the United Nations’ Convention Against Torture 1987. The fact is, although prohibitions against torture have been widely accepted as an essential feature of customary law, it was codified by the UN.26 The Convention Against Torture however, does more than simply codify customary laws, it goes so far as to define torture and it sets up an international body for ensuring compliance with the Convention.27 The implications are therefore that, while it is fine to derive customary international laws from the idea of crystallization and international norms and conscience as envisaged by the Martens Clause, enforceability and consistency cannot be taken for granted. In order for customary international law to have the force of law, it must first be consistent across diverse states. In relying on the public conscience and the amalgamation of domestic norms, there is no real defence against changing norms and standards across borders. When standards of conduct changes modifications in international law will not automatically follow. A process of change in terms of domestic practices and norms will have to occur. This will take time. However, when international laws are promulgated via treaties and conventions, they can be changed more efficiently and more effectively. Additionally, international treaties and conventions will avoid the inconsistencies that ordinarily follow from a collection of customs, practices and norms over a diverse international community. Essentially, these international treaties and conventions will define what is unacceptable conduct, the prescribed punishment for that conduct and will lay out the procedures for bringing those offenders to justice. It will also ensure that states bound to these conventions cannot avail themselves of the doctrine of persistent objector. The fact is, once a state becomes a party to a treaty and/or convention, those contracting states are bound to the obligations contained therein. In the final analysis, it is entirely impractical to rely on the creation and development of international law in the manner described by the ICTY in Kuprekic et al. While the public conscience and norms might reflect a general consensus they are not capable of definitive interpretation and are merely reflective of and drawn from domestic experiences for the most part. Since these experiences differ from one state to another, they cannot form a cogent and consistent body of law. What occurs is an automatic fragmentation of laws in that there is “the conflicting interpretation of general law” that necessarily arises from the interplay between different legal systems.28 The correct approach is therefore to formulate international instruments that will call for a more consistent approach to construction of norms and state practices. Although the ICC Statute defines the applicable crimes, international jurisprudence leaves it to concepts of opinio juris to interpret and apply those laws. The more practical approach would be to rely on the international treaties and conventions for the interpretation and application of international crimes against humanity. Bibliography Articles/Journals Cassese, A. ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 European Journal of International Law, 187-216. Danner, A. and Martinez, J. ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law,’ (March 2004) Stanford Law School Public Law and Legal Theory Working Paper Series, Research Paper No. 87, 1-87. Gills, R. ‘The Federalization of the Crime of Torture: An Analysis of the Constitutional and International Issues.’ cited in S. Yee (ed) International Crime and Punishment: Selected Issues, (University Press of America 2004). Kohen, M. and Caffisch, L. Promoting Justice, Human Rights and Conflict Resolution Through International Law. (Martinus Nijhoff Publishers 2007). Lau, H. ‘Rethinking the Persistent Objector Doctrine in International Human Rights Law’. (2005) 6 Chicago Journal of International Law, 495-510. Meron, T. ‘War Crimes in Yugoslavia and the Development of International Law’. (1994) 88(1) The American Journal of International Law, 78-87. Meron, T. ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’.(Jan. 2000) 94(1) The American Journal of International law, 78-89. Orakhelashvili, A.‘The Interaction Between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?’ (2008) 19(1) The European Journal of International Law, 161-182. Page, M.‘Article 29 of the Rome Statute as a Crystallization of Customary International law.’ Cited in S. Yee, (ed) International Crime and Punishment: Selected Issues, (University Press of America 2004). Wald, P. ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court.’ (2001)5 Journal of Law and Policy, 87-123. Books Boas, G. and Schabas, W. International Criminal Law Developments in the Case Law of the ICTY. (Martinus Nijhoff Publishers 2003). Doria, J.; Grasser, H. and Bassiouni, M. The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko. (BRILL 2009). Dormann, K. Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary. (Cambridge University Press, 2003). May, L. Crimes Against Humanity: A Normative Account. (Cambridge University Press 2005). Cases Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. Martic Case No. IT-95-11-R61 (1996). Prosecutor v Kuprekic et al Case No. IT-95-16 T (January 14, 2000). Prosecutor v Furundfija IT-95-17/I-T (December 10, 1998). Prosecutor v Tadic Case No. IT-94-1-T (October 2, 1995). Statutory Instruments Convention Against Torture 1987. Declaration of Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment 1975. Geneva Conventions for the protection of Victims of War 1949. Additional Protocols to the Geneva Conventions 1977. Hague Convention on the Laws and Customs of War on Land 1907. Restatement (Third) of the Foreign Relations Law of the U.S 1987. Read More