THEORY OF INTERNATIONAL CRIMINAL LAW
1.4 ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW
Unlike the national legal systems, the international community predicates its rules not upon a preconceived hierarchical ladder, but on the basis of the principle of juridical equality among States. It is, therefore, a horizontal system of law making.
Since it does not possess a legislative body, a law enforcement agency, or a compulsory judicial jurisdiction, its primary subjects must necessarily premise their relations on a framework of mutual interdependence. International enforcement action against natural persons for violations of ICL takes two general forms: direct and indirect.
Direct enforcement implies Prosecutorial and judicial action against persons suspected of having committed an international offence. Although, in the past, a substantial number of quasi-judicial commissions were set up to investigate breaches of the laws of war alleged to have taken place in various armed conflicts, it was not until the establishment of the Nuremberg and Tokyo tribunals at the close of the Second World War that enforcement took place before an international forum and on the basis of international law. Two later conventions,Art VI of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and Art V of the 1973 Convention on the Prevention and Suppression of Apartheid,29 called for the creation of an international penal tribunal with authority to adjudicate violations of these Conventions. Similarly, on the basis of contractual obligations stemming from Art 25 of the 1945 United Nations (UN) Charter, which renders Security Council resolutions binding on UN Member States, the ad hoc tribunals for
27 G Schwarzenberger, ‘The Problem of an International Criminal Law’, 3CLP(1950), 263, p 274.
28 The much contested draft Art 19 of the ILCs Draft Articles on State Responsibility, which made reference to international offences giving rising to State responsibility, was removed from the ILC’s finalised Articles. See UN Doc A/CN4/L600 (21 August 2000).
29 1015 UNTS 243.
Yugoslavia30and Rwanda31were established under the process of Art 41 of the 1945 UN Charter (that is, measures authorised by the UN Security Council not involving the use of armed force). Unlike the two ad hoc tribunals, the ICC, whose Statute was adopted in 1998,32is not endowed with compulsory jurisdiction. Subject to an exception under Art 12(2) of its Statute, whereby the Court may assume jurisdiction where either the territorial State or the State of nationality of the accused submits to its jurisdiction, the ICC is generally empowered to adjudicate a case only after the concerned State has given its unequivocal consent.
It is not only international tribunals that possess the capacity to take direct enforcement action, but also domestic criminal courts. When domestic courts exercise wide-ranging extraterritorial jurisdiction, especially universal jurisdiction over piracyjure gentium,war crimes and crimes against humanity, they, too, are acting as international tribunals, since they are directly enforcing international law. The prosecution of cases subject to universal jurisdiction in particular, where the forum State does not have any connection to the elements of the offence, necessarily implies that domestic courts assume more than an international character; they are discharging that State’s obligation to the whole of the international community, in protecting and enforcing fundamental human rights (erga omnesobligations). As the International Court of Justice (ICJ) pointed out in theBarcelona Tractioncase, all States have a legal interest in the protection of fundamental rights worldwide.33This should subsequently give rise to anactio popularis. The non-contractual character of the 1948 Genocide Convention, for example, is premised on its capacity to create obligations, even vis-à-vis non-affected States, on the basis of its compelling humanitarian nature.
In the absence of international tribunals and general reluctance in the exercise of universal jurisdiction, States have found themselves compelled to reach minimum agreement on international co-operation in criminal matters. The various facets of this co-operation extend not only to purely domestic offences, but, more importantly, to international crimes with a view to preventing impunity. Most prominent among these measures is the insertion of a provision in ICL treaties obligating parties either to prosecute or extradite persons accused of having committed an offence stipulated by the relevant convention(aut dedere aut judicare). This clause, whose origin can be traced in the work of Hugo de Groot (Grotius), does not constitute an independent basis for extradition, but requires an additional agreement between the requesting and requested States. It does, nonetheless, serve as a deterrent to establishing safe havens for alleged criminals and forces parties to a convention to take responsible enforcement action. The mechanism of extradition itself also supplements indirect enforcement processes by enabling a more willing and better-equipped (in terms of evidence and proximity to the facts of the case) jurisdiction to investigate a particular case. Another complementary safeguard is the inclusion of broad jurisdictional competence in most international criminal treaties, thereby enabling national
30 SC Res 827 (25 May 1993).
31 SC Res 955 (8 November 1994).
32 37 ILM (1998), 999.
33 Belgium v Spain (Barcelona Traction Light and Power House Co Ltd)(1970) ICJ Reports 3, Second Phase, p 32.
prosecutorial authorities to assume direct action. Similarly, contemporary treaties have allowed few or no reservations34and have refused contracting States the ability to characterise offences within the framework of a convention as politically or ideologically motivated.35This has deprived States of the ability otherwise to refuse extradition and has created a large degree of uniformity as regards themens reaof international offences. Finally, through bilateral and multilateral mutual legal assistance agreements, it has become possible to communicate evidence and other documentation facilitating criminal prosecution between two or more States, as has the process of transferring judicial proceedings across two jurisdictions.
The threefold objective of ICL, that is, to prevent, prosecute and punish offenders, must ultimately be beneficial to all people. If international criminal justice does not serve this purpose, it will have failed.Although the UN has persistently taken a contrary view,36should an independent and impartial Truth and Reconciliation Commission that has the potential to restore trust and facilitate redevelopment in a shattered community be used as an alternative to criminal prosecutions? If there is even one such instance available, it must not be denied to fulfil that perspective. Since the aim of criminal justice is not only to punish the culprit, but to restore law and order, other supplementary mechanisms should be allowed to function alongside. In thePlavsic case, the accused was co-President of the Serbian Republic of Bosnia and Herzegovina between February and May 1992, occupying thereafter other significant posts within the Bosnian Serb leadership. Having been informed of an indictment against her, she surrendered to the ICTY and entered a guilty plea with regard to a wide range of crimes against humanity.A number of mitigating factors were set out by Plavsic, among which was that her unequivocal guilty plea, surrender and acceptance of responsibility contributed to the establishment of truth and was a significant effort towards the advancement of reconciliation. The Trial Chamber went to great pains to demonstrate that the process of reconciliation was one of its primary aims, besides retribution, and that the accused’s full disclosure and acceptance of responsibility facilitates the purpose and processes of reconciliation, thus indeed constituting a mitigating factor.37
As will become evident in other chapters, the UN is opposed to blanket immunities and not to truth commissions in general. Moreover, the aforementioned threefold objective of ICL is served not only through State action, but also through the efforts of private organisations. These efforts relate solely to preventive action, since prosecution and punishment constitute exclusively public functions. Private
34 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Art 22, 32 ILM (1993), 804; 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Art 19, 320 IRRC (1997), 563; 1998 ICC Statute, Art 120.
35 See, eg, 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, Art 8, 860 UNTS 105;
1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Art 8, 974 UNTS 177; 1998 UN Convention for the Suppression of Terrorist Bombings, Arts 5 and 9, 37 ILM (1998), 249.
36 The negotiations leading to the adoption of the Statute of the 2002 Sierra Leone Special Court, after agreement between the UN and the Government of Sierra Leone, vigorously reflected the position of the Secretary General that the granting of amnesties would not bar prosecutions.Report of the Secretary General on the Establishment of a Special Court for Sierra Leone,UN Doc S/2000/915 (4 October 2000), para 22.
37 ICTY Prosecutor v Plavsic,Sentencing Judgment (27 February 2003), Case Nos IT-00–39 and 40/1-S, paras 79–81.
organisations such as the International Committee of the Red Cross (ICRC), the Piracy Reporting Centre, established by the International Chamber of Commerce, and the International Cable Protection Committee, established by corporations active in that industry, undertake a range of preventive measures to minimise the risk of offences associated with their field of interest. This is welcome and unavoidable to a large extent, as in the case of piracy, for example, most developing States do not have the resources to patrol their coastlines, let alone the adjacent high seas. Moreover, these organisations have, in the past, been the protagonist instigators for the evolution of international norms in a certain field, such as the development of international humanitarian law through the efforts of the ICRC.
The process of ICL enforcement, however, may also involve State entities, in the sense that they may be responsible for the perpetration of an international offence, or because they have transgressed their international obligations by failing to co-operate with other States or international organisations in the suppression of particular criminal activity. A State that breaches any of its international obligations commits an internationally wrongful act and bears responsibility vis-à-vis injured States. Some wrongful acts, however, especially those relating to gross violations of human rights within one country and against that country’s nationals, do not produce harm to any particular State. They do, nonetheless, breach obligations owed to the international community as a whole and, as such, every country possesses a legal interest in their termination and satisfaction of the victims. In both aforementioned cases (that is, direct injury and obligationserga omnes) recourse is available to the ICJ or other interstate judicial bodies, although no case has so far been entertained by the ICJ on account of a non-injured party alleging breach of ajus cogensnorm.38Increasingly, natural persons have been granted legal standing before international judicial bodies with compulsory jurisdiction, capable of rendering binding judgments, such as the European Court of Human Rights. Judgments and non-binding rulings emanating from other quasi- judicial bodies, such as the Human Rights Committee, have in recent years been respected and complied with by a large number of States that have been found to breach particular human rights provisions in the 1966 International Covenant on Civil and Political Rights (ICCPR), although levels of compliance are far from perfect.39 Moreover, Security Council resolutions are binding upon all States, thus rendering any recalcitrant State subject to possible Council countermeasures on account of its refusal to comply. The Security Council may even authorise the use of armed force in accordance with Art 42 of the 1945 UN Charter, where it is convinced, and its members are capable of deciding, that such action would best counter a particular breach or threat to the peace, or an act of aggression.40This was amply exemplified in the case of Iraqi aggression against Kuwait in 1990, where the Council authorised a coalition of allied States to use force in order to restore not only Kuwaiti independence, but also
38 The European Court and Commission of Human Rights has had a chance to examine interstate complaints alleging human rights violations taking place solely on the territory and against the nationals of a single State. SeeDenmark, Norway, Sweden and The Netherlands v Greece(Greekcase) (1969) 12 ECHR Yearbook 134.
39 D McGoldrick,The Human Rights Committee,1994, Oxford: Clarendon, pp 202–04.
40 See C Gray,International Law and the Use of Force,2000, Oxford: OUR
international peace and security in the region.41Sanctions can also be imposed by regional organisations and this is usually decided and executed in co-operation, or in execution of, relevant Security Council resolutions.42Finally, recalcitrant States may also suffer adverse consequences on the basis of particular treaty regimes and the obligations contained therein.43Inevitably, all the aforementioned means relating to measures against States, as part of the ICL process, are premised on political considerations as to whether a judicial or other confrontational avenue should be followed, except where this involves individual claimants.