Section E.1. The International Criminal Tribunal for the Former Yugoslavia (ICTY)

 

Since publication of the Coursebook there have been several developments with respect to the International Criminal Tribunal for the Former Yugoslavia (ICTY) that raise broader issues.

 

Appellate Reversal of a Conviction by the ICTY

 

In October 2001, the five-member appeals panel of the ICTY unanimously quashed the convictions of three Croatians and reduced the sentences of two others after a 14-month long trial.  According to the court, there was a “miscarriage of justice� when the prosecutors omitted critical details in an amendment of the indictment and when the trial judges placed too much weight on an identification witness.  This case marked the first time that convictions had been overturned by the Tribunal. The case was Prosecutor v. Zoran Kupreskic and others, Case No. IT-95-16-A, full text available at <http://www.un.org/icty/kupreskic/appeal/judgement/index.htm> (last visited March 31, 2003). A summary of the decision is available at <http://www.un.org/icty/pressreal/kup-sum011023e.htm> (last visited April 30, 2003).

 

Decision on Whether Journalists can be Compelled to Testify at Trials Before the ICTY

 

In June 2002 the ICTY upheld a subpoena to a U.S. journalist to testify at a war crimes trial about an interview with the Bosnian Serb defendant nine years earlier in which the defendant had said that non-Serbs should be expelled from Bosnia.  In so doing, the Tribunal rejected the journalist’s objection that the subpoena impinged on the freedom of the press and had a chilling effect on wartime journalists.[1]

 

The Appeals panel of the ICTY reviewed the decision.  The journalist’s appeal, accompanied by an amicus brief from 34 international news organizations, requested the establishment of a qualified journalist privilege:  the journalist could testify only when the testimony was critical to the case, when other sources could not provide similar evidence, and when the journalist would not be endangered.

 

On October 4, 2002, a five-judge Appeals panel held a four-hour hearing with respect to the subpoena to the U.S. journalist. Despite fears that the panel would decline to rule on the issue on the ground of mootness because the attorney for the defendant indicated he no longer intended to call the journalist, the Appeals panel addressed the issue directly and quashed the subpoena. The Appeals panel decided “that compelling war correspondents to testify before the International Tribunal on a routine basis may have a significant impact upon their ability to obtain information and thus their ability to inform the public on issues of general concern.� [2]  The panel created a balancing test such that “only when the Trial Chamber finds that the evidence sought by the party seeking the subpoena is direct and important to the core issues of the case . . . [may it] compel a war correspondent to testify before the International Tribunal.� [3]  The full text of the Appeals panel decision is available at <http://www.un.org/icty/brdjanin/appeal/decision-e/randall021211.htm> (last visited April 30, 2003).

 

Section E.4. Development of New Tribunals

 

The Special Court for Sierra Leone

 

 Resolution 1315 of the U.N. Security Council [4] authorized the Secretary-General to negotiate an agreement with the government of Sierra Leone on the establishment of a special court to deal with crimes against humanity, war crimes, serious violations of international law, and violations of the relevant law of Sierra Leone. After some initial funding problems and a brief relapse into armed conflict the Special Court for Sierra Leone (SCSL) was finally established. On January 16, 2002, after over a year of negotiations, the U.N. and the government of Sierra Leone signed an agreement, which created the legal framework for the court, which is based in Freetown and has both international and Sierra Leonean judges, prosecutors, and staff. The court has limited temporal jurisdiction, reaching back only as far as November 30, 1996. The SCSL announced its first seven indictments in March 2003 and is intended to prosecute a total of between 20 and 30 people. [5]  It is funded exclusively through the voluntary contributions of states. The website for the SCSL is <http://www.sc-sl.org/> (last visited November 17, 2003)

 

 Sierra Leone has also established a Truth and Reconciliation Commission (TRC), [6] which began public hearings on April 14, 2003. [7]  The concurrent operation of both an international tribunal and a TRC is unusual and raises issues about the relationship between the two, especially with respect to the power of the SCSL to subpoena confidential witness information from the TRC. Human Rights Watch has put forward a policy paper outlining its vision of the relationship, which is available at <http://www.hrw.org/press/2002/04/sierraleoneTRC0418.htm> (last visited April 30, 2003).  While there is no formal agreement between the two bodies, they are expected to be complementary and cooperative.

 

For further discussion of the relationship between truth commissions and international criminal proceedings, see, e.g., Ben Chigara, Amnesty in International Law:  The Legality under International Law of National Amnesty Laws (2002); Andreas O’Shea, Amnesty for Crime in International Law and Practice (2002) Post Conflict Justice (M. Cherif Bassiouni ed., 2002); Impunity and Human Rights in International Law and Practice (Naomi Roht-Arriaza, ed. 1995); Angelika Schlunck, Amnesty Versus Accountability:  Third Party Intervention Dealing with Gross Human Rights Violations in Internal and International Conflicts (2000); Ruth G. Teitel, Transitional Justice (2000); Transitional Justice:  How emerging Democracies Reckon with Former Regimes (Neil J. Kritz, ed.1995); Transitional Justice and the Rule of Law in New Democracies (James McAdams, ed. 1997); Mahnoush H. Arsanjani, The International Criminal Court and National Amnesty Laws,  93 Am. Soc’y Int’l L. Proc. 65 (1999); Andrew S. Brown, Adios Amnesty:  Prosecutorial Discretion and Military Trials in Argentina, 37 Tex. Int’l L.J. 203 (2002); William W. Burke-White, Reframing Impunity:  Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv. Int’l L.J. 467 (2001); Douglass Cassel, Accountability for International Crime and Serious Violation of Fundamental Human Rights, Lessons from the Americas:  Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp. Probs. 197 (1996); Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court, 51 Int’l & Comp. L.Q. 91 (2002); Oren Gross, Book Review, 9 Constellations 286 (2002) (reviewing Ruth G. Teitel, Transitional Justice (2000)); Heinz Klug, Amnesty, Amnesi,a and Remembrance:  International Obligations and the Need to Prevent the Repetition of Gross Violations of Human Rights (South Africa)(Transitional Justice:  Amnesties, Truth Commissions, and Beyond), 92 Am. Soc’y Int’l L. Proc. 313 (1998); Daniel J. Macaluso, Absolute and Free Pardon:  The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone, 27 Brook. J. Int’l L. 347 (2001); Naomi Roht-Arriaza, Truth Commissions and Amnesties in Latin America:  The Second Generation (Transitional Justice:  Amnesties, Truth Commissions and Beyond), 92 Am. Soc’y Int’l L. Proc. 313 (1998); Naomi Roht-Arriaza and Lauren Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843 (1998); Emily W. Schabacker, Reconciliation or Justice and Ashes:  Amnesty Commissions and the Duty to Punish Human Rights Offenses, 12 N.Y. Int’l L. Rev. 1 (1999); Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507 (1999); Michael P. Scharf, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations, 33 Cornell Int’l L.J. 297 (2000); Ronald C. Slye, The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law:  Is a Legitimate Amnesty Possible?, 43 Va. J. Int’l L. 173 (2002); Symposium on Enforcing International Human Rights Law, Addressing Human Rights Abuses:  Truth Commissions and the Value of Amnesty, 19 Whittier L. Rev. 325 (1997); David Weissbrodt & Paul W. Fraser, Book Review, 14 Hum. Rts. Q. 601 (1992) (reviewing National Commission on Truth and Reconciliation, Report of the Chilean National Commission on Truth and Reconciliation (1991)); Gwen K. Young, Amnesty and Accountability, 35 UC Davis L. Rev. 427 (2002).

 

The Cambodian Tribunal on the Khmer Rouge

 

After six years of negotiations the U.N. and the Cambodian government reached a draft agreement on the creation of a tribunal to try Khmer Rouge atrocities in March 2003.[8] 

On March 31, 2003, the Secretary-General of the U.N. reported to the General Assembly on the draft agreement, outlining the history of the negotiations and the structures that the U.N. and Cambodia envisage.[9]  The draft agreement calls for a court composed of international and Cambodian judges.  The Trial Chamber is to have two international and three Cambodian judges, and the Supreme Court Chamber is to have three international and four Cambodian judges.[10]  The decisions are to be taken by simple majority vote.[11]  There are two chief prosecutors—one Cambodian and one non-Cambodian—and two chief investigators—one Cambodian and one non-Cambodian.[12]  The subject matter jurisdiction of the court is limited to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the Rome Statute of the International Criminal Court, and grave breaches of the 1949 Geneva Conventions, as well as such other crimes as defined by Cambodian law.[13]  The rules of procedure are to be drawn primarily from Cambodian law, not international law.[14]  Fair trial guarantees are limited to Articles 14 and 15 of the International Covenant on Civil and Political Rights as well as Cambodian law.[15]

Some international human rights groups have expressed concern about the proposed structure of the tribunal.  Amnesty International has published a preliminary report covering several issues:

-         insufficient guarantees for international fair trial standards;

-         insufficient guarantees for an independent and impartial court;

-         failure to incorporate the strongest principles of criminal responsibility and law on defenses; and

-         inadequate victim and witness protection.

The full report is available at <http://web.amnesty.org/library/Index/ENGASA230032003?open&of=ENG-KHM> (last visited November 17, 2003).

 

Section F. The International Criminal Court

 

            The current Bush Administration, building on the concerns expressed by the Clinton administration about the special vulnerability of U.S. military forces to “frivolous� and “politicized prosecution� decided against remaining a State party to the Rome Statute International Criminal Court (ICC).  The administration has several objections, which the Coursebook covers, along with responses to those objections.[16]

 

The U.S. has taken several steps to try to insulate U.S. military personnel from being subject to the jurisdiction of the ICC.  The primary tool for accomplishing this objective has been Article 98 of the ICC Statute, which the U.S. has used to conclude bilateral agreements exempting U.S. citizens from rendition to the jurisdiction of the ICC.  Article 98(2) of the ICC Statute reads “The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.�  The U.S. interpretation has met with considerable opposition, as has its pursuit of the bilateral agreements.[17] As of November 2003, 60 countries had signed such agreements.[18]

 

In addition, the U.S. unsuccessfully encouraged the U.N. Security Council to exempt U.N. peacekeepers permanently from the ICC’s jurisdiction.  When that effort failed, the U.S.  vetoed a Security Council resolution to extend the U.N. peacekeeping mission in Bosnia on June 30, 2003.[19]  On July 12, 2002, the Security Council reached a compromise that extended the mission,[20] and passed Resolution 1422, which provided that all U.N. peacekeepers from non-ICC State parties (i.e. the U.S.) would be exempt from ICC investigation or prosecution for one year, renewable yearly for as long as necessary.[21]  The Security Council took the authority to grant such an exemption from Article16 of the ICC Statute, which states that the Security Council may defer or suspend an investigation based on its determination of a threat to international security under Chapter VII of the U.N. Charter.  There exists some question as to whether the U.S. veto was the kind of threat envisaged under Chapter VII.  Hence, it is possible that in providing the exemption, the Security Council acted outside the scope of its authority as outlined in Article 16 and contrary to the intentions of the States parties to the ICC Statute.  Article 16 may also leave room for the ICC to examine whether the U.N. Security Council request was properly made under a resolution adopted under Chapter VII.

 

Section G. Democratic Republic of the Congo v. Belgium: Universal Jurisdiction over Human Rights Abuses

History of the Case

In 1993, the Belgian Parliament passed a law authorizing Belgian courts to exercise jurisdiction over anyone accused of genocide, war crimes, and crimes against humanity.[22]  Prosecutions could take place in Belgian courts regardless of the nationality of the individual or the territory in which the act took place.[23]  The universal jurisdiction law has been the source of controversy and continuing litigation.  The most significant case to date followed the British case of General Augusto Pinochet, former President of Chile, that ended with a decision that jurisdiction over former heads of state could be exercised for acts committed while they were in office.[24]  Belgian authorities issued an international arrest warrant in April 2000 for the Minister of Foreign Affairs for the Democratic Republic of the Congo (“the Congo�), Abdulaye Yerodia Ndombasi.  The warrant requested all other states to detain the Foreign Minister and render him to Belgian authorities.  In this particular case, the Belgian authorities were attempting to extend their jurisdiction to sitting office holders and to acts committed while in office.

In October 2000, the Congo brought a contentious proceeding against Belgium in the International Court of Justice (ICJ) arguing:  that Belgium was attempting to exercise its jurisdiction on Congolese territory, contrary to international principles; that the arrest warrant violated sovereign equality as defined by Article 2 of the U.N. Charter; and that the action violated customary law as codified in Article 41 of the Vienna Convention on Diplomatic Relations, regarding the diplomatic immunity of foreign representatives.[25]  The Congo requested the annulment of the arrest warrant.[26]

Initial arguments in the case concerned the effect of the removal of the Foreign Minister from office in April 2001.  Belgium first contended that no legal controversy existed, an argument that the court rejected.  The ICJ then rejected Belgium’s argument that the case was moot because the diplomatic immunity of an incumbent was no longer at issue.  The ICJ did not consider the issue to be moot since the arrest warrant, not the Foreign Minister himself, was the alleged cause of the injury and the warrant was still in effect.[27]

The Decision

The ICJ rendered a decision on the case in February 2002, primarily on the basis that Belgium’s exercise of jurisdiction was in violation of the right and necessity of diplomatic immunity for incumbent office-holders like the Foreign Minister.

While the final Congolese application did not include the issue of whether universal jurisdiction was proper, the ICJ did conclude that for a full and proper determination, such jurisdiction would have to be addressed if the court found that diplomatic immunity did not apply.  Since it found that diplomatic immunity applied, the court did not find it necessary to address whether Belgium’s exercise of universal jurisdiction for war crimes and crimes against humanity was proper.  Almost all the concurring opinions, however, stated that universal jurisdiction is proper.  There existed some disagreement among the judges as to whether universal jurisdiction in absentia was proper.[28] 

The ICJ decision begins by noting that “it is firmly established [in international law] that . . . certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.�[29]  While international conventions guided the court, it used international customary law as the primary source for deciding the immunity of Foreign Ministers.[30]  The ICJ examined the circumstances necessary for a Foreign Minister to function properly.  The ICJ outlined some of the relevant considerations:

-         the Foreign Minister is the highest international representative of the government, in the absence of the Head of State;

-         there is a presumption that he or she is empowered to act on behalf of and bind the State represented;

-         such duties require constant international travel and the Foreign Minister must be in a position to do so freely and without hindrance;

-         recognition of his or her status comes solely by virtue of the office rather than by any presentation of credentials, in the same manner as the Head of State or Head of Government.[31]

The ICJ concluded that full criminal and civil immunity is necessary for carrying out such duties since any exercise of jurisdiction would limit the function of the office.  The functional perspective of the court led it to conclude that no distinction can be made between acts carried out in an official capacity and acts carried out in a private capacity.[32]  This immunity extends even to acts committed before assumption of office.  The court maintained that even the mere risk of arrest would interfere with the functioning of the office.[33]

The court rejected Belgium’s contentions that war crimes and crimes against humanity are qualitatively different crimes from which international law provides no immunities.  The ICJ noted the Pinochet case and concluded that it does not address the issue of immunity for incumbent Heads of State or Foreign Ministers.  It found no support for making an exception to immunity in the case of incumbents under international law or in the practice of national courts.[34] 

In concluding that Belgium lacked jurisdiction over the Congolese Foreign Minister, the court made a distinction between jurisdictional immunity and actual criminal responsibility.  Jurisdictional immunity may be limited in duration, or another venue can be found that does not function under the same constraints as national courts.  It outlined several circumstances under which the Foreign Minister could still be tried:

-         trial in his own country for violation of international human rights;

-         waiver of such jurisdictional immunity by the State which he represented;

-         trial after a person ceases to hold office.  “Provided that it has jurisdiction under international law, a court of one State may try a former Minister of Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacityâ€?[35]; or

-         incumbents or former Foreign Ministers could be brought before international criminal tribunals that had jurisdiction over the crimes.

The court held by, thirteen votes to three, that the issuance of the arrest warrant was a violation of Belgium’s international legal obligation to respect the immunity from criminal jurisdiction of the Foreign Minister of the Congo.[36]  The three dissenters each appended a dissenting opinion to the main judgment.[37]

Developments Since the Decision

There was also an attempt to bring Ariel Sharon, incumbent Prime Minister of Israel, to trial for what have been called the Sabra and Chatila refugee camp massacres of 1982 in Lebanon by Israeli-allied militia.  In June 2001 the survivors filed a complaint before a Belgian court and a prosecutor began an investigation.  There followed several pre-trial motions on the admissibility of the complaint.  The latest pre-trial decision by the Belgian Appeals Court, in June 2002, rejected the application as inadmissible on the grounds that the Belgian law was not intended to give Belgian authorities the power to extend jurisdiction to persons who were not present in Belgium.  This same principle was the basis on which the domestic Belgian case against the former Foreign Minister of the Congo had been dismissed.[38]  Faced with a U.S. threat to remove NATO headquarters from Belgium, the Belgian parliament responded by passing an interpretive law in January 2003 stating that they had intended that such power be given to authorities. 

The Sabra and Chatila survivors appealed the case to the Supreme Court of Belgium.[39]  In February 2003 the Belgian Supreme Court decided against the survivors on the grounds that Sharon was an incumbent Prime Minister.  The court made it clear that after he left office, Sharon could be brought under the jurisdiction of the Belgian courts (as could former U.S. Secretary of State Henry Kissinger).[40]

            In response to the bringing of suits against incumbent and former officials, the government of Belgium amended the law in April 2003.  Where the person is not in Belgium, the amendment allows the prosecutor to refuse prosecution in favor of the home state of the accused or an international tribunal with the appropriate jurisdiction.[41]  On May 14, 2003, a group of 17 Iraqis filed a case charging war crimes against General Tommy Franks, military commander during the U.S. led invasion of Iraq.  On May 21, the Belgian government used the amended law to refer the case to the U.S. Department of Justice which has received the referral but has taken no further action.[42]

 In reaction to further US demands, as well as pressure from some of it NATO and EU allies, the Belgium government decided, in June 2003, to amend the law. The changes mean that the law will apply only if the plaintiff is Belgian or has lived in Belgium for at least three years, the alleged criminal is Belgian or a resident for more than three years and the complaint will be heard only if the country in which the alleged crimes were committed had no legislation to condemn them or cannot guarantee a fair trial. The decision to hear the complaint will be made by the First President of the Brussels Appeal Court. [43]  

 

ADDITIONAL READINGS:

 

Cambodia and Human Rights:

 

Kenton Clymer, Jimmy Carter, Human Rights, and Cambodia, 27 Diplomatic History 245 (2003).

 

Universal Jurisdiction:

 

Anthony Sammons, The “Under-Theorization� of Universal Jurisdiction:  Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int’l L. 111 (2003).

 

International Criminal Tribunal for the Former Yugoslavia

 

Cecile Tournaye, Genocidal Intent Before the ICTY, 52 Int’l & Comp. L. Qrt. 447 (2003).

 

International Criminal Court:

 

Sabine von Schorlemer, Human Rights:  Substantive and Institutional Implications of the War Against Terrorism, 14 Eur. J. Int’l L. 265 (2003).  This article provides a post-September 11^th look at both sides of the possible effects of the War on Terrorism on human rights.  First, it assesses whether acts of terrorism are violations of human rights and asks what the proper venues or international mechanisms are for dealing with terrorism.  Terrorists and their organizations are non-state actors and international law has generally developed to protect individuals and groups from violations perpetrated by states.  But von Schorlemer argues that international law has recognized non-state actors as having some status when their goals include self-determination.  Hence, non-state actors may be held responsible for human rights violations.  She also argues that the ICC and other international courts (not the ICTY) provide mechanisms for trying individuals for acts outside of actual combat and apart from state sanction.  Terrorists might be tried before the ICC for crimes against humanity.  The second half of the article looks at counter terrorist responses and outlines the demands of international law on states that take antiterrorist measures.

 

Diane Marie Amann, American Law in Time of Global Interdependence: U.S. National Reports to the XVIth International Congress of Comparative Law: Section IV: The United States and the International Criminal Court, 50 Am. J. Comp. L. 381 (2002);

 

Remigius Chibueze, United States Objection to the International Criminal Court:  A Paradox of “Operation Enduring Freedom�, 9 Ann. Surv. Int’l & Comp. L. 19 (2003);

 

Benjamin B. Ferencz, Misguided Fears About the International Criminal Court, 15 Pace Int’l L. Rev. 223 (2003);

 

Jean Galbraith, The Bush Administration’s Response to the International Criminal Court, 21 Berkeley J. Int’l L. 683 (2003);

 

Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003);

 

Richard J. Goldstone & Janine Simpson, Evaluating the Role of the International Criminal Court as a Legal response to Terrorism,16 Harv. Hum. Rts. J. 13 (2003);

 

Regina Horton, The Long Road to Hypocrisy:  The United States and the International Criminal Court, 24 Whittier L. Rev. 1041 (2003);

 

Madeline Morris, Democracy and Punishment:  The Democratic Dilemma of the International Criminal Court, 5 Buff. Crim. L. R. 591 (2002);

 

Mary Margaret Penrose, No Badges, No Bars:  A Conspicuous Oversight in the Development of an International Criminal Court, 38 Tex. Int’l L. J. 621 (2003);

 

Darryl Robinson, Serving the Interests of Justice:  Amnesties, Truth Commissions, and the International Criminal Court, 14 Eur. J. Int’l L. 481 (2003). (Outlines the tensions between the responsibility of the ICC to prosecute international crimes and state actions regarding amnesties, including those granted by truth commissions); 

 

Eric P. Schwartz, TheUnited States and the International Criminal Court:  The Case for “Dexterous Multilateralism,� 4 Chi. J. Int’l L. 223 (2003).

 

Other Courts:

 

Dustin N. Sharp, Prosecutions, Development, and Justice:  The Trial of Hissein Habre, 16 Harv. Hum. Rts. J. 147 (2003).