Finnish Yearbook of International Law 2001 (Finnish Yearbook of International Law)

This page intentionally left blank

Volume XII, 2001

Ius Gentium Association

MARTINUS NIJHOFFPUBLISHERS

Publislzed by: Brill Academic Publishers PO. Box 9000,2300 PA Leiden, The Netherlands cs@brill .nl http://www. brill.nl Sold and distributed by: Turpin Distribution Services Limited Blackhorse Road Letchworth Herts SG6 l HN United Kingdom In North America: Brill Academic Publishers P.O. Box 605 Herndon, VA 20 172 USA [email protected]

A C.1.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper. lSBN 90 04 13755 6 O 2003 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprint Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Finnish Yearbook of International Law Martti Koskenniemi

Executive Editor Jarna Petman

Editors Petra Hagelstarn Katja Keinanen Kati Kulovesi Michael Mehhng Tapio Puurunen

Associate Editors Anna Esko Viljam Engstrijm Wilberforce Essandor Jutta Gras Arto Haapea

Virpi Koivu a Koskemaki P2vi Leino Taina Manninen Hanna-Mad Makinen W

Krista Oinonen Samuli Seppanen Anna Sotaniemi Jarnes Summers Katriina Viherma

We welcome unsolicited contributions related to international law. All manuscripts and editorial correspondence should be addressed to: Executive Editor Finnish Yearbook of International Law Faculty of Law P.O. Box 4 (Yhopistonkatu 3) FIN-00014 University of Helsinki, F d a n d You'll find general information for authors and a detailed p d e to our house style at the end of this book. -We look forward to hearing from you.

Editorial Advisory Board Chaiman Jan Klabbers Ruth Donner Kari Hakapaa Lauri Hannikainen PGvi Kaukoranta Esko Kiuru

Outi Korhonen Erkki Kourula Pirkko Kourula Raimo Lahti Marja Lehto

Ari-Matti Nuutila Esa Paasivirta Allan Rosas Martin Scheinin Markku Suksi

International Advisory Board Chaiman Bengt Broms Daniel Bardonnet Ove Bring James Crawford Vladimir D juro-Degan

Christian Domink6 Sir Robert Jennings Vladlmir Kopal Shabtai Rosenne Bruno Simrna

Sir Ian Sinclair Antti Suviranta Hugh W.A. Thirlway Holger R o h r c h

Honorary Board Chaiman I h i T. Takamaa Veijo Heiskanen Sirkku Hirvonen

Juhani Kortteinen Tuomas Kuokkanen Juhani Parkkari

Ritva Saario Matti Tupamaki

Contents Symposium

Jtlsticc witbont borders? Extmzali@ng criminalpnnirhmentforpast atrocities

Chandra Lekha Sriram & Brad R. Roth (symposium ehtors): Extemalixation ofJustice: What Does It Mean and What Is at ,Stake? Arny Ross: Ge0graphie.r ofJustice: International law, National Sovereign9 and Human Rights Brad R. Roth: Anti-Sovereigntism, Lberal Messianism, and Excems in the Drioe against Impuni9 Chandra Lekha Sriram: UniversalJurisdiction: Problem and Prospects ofExternah@ngJustice Jarnie Mayerfeld: The Mutual Dependence of External and Internal Justice: The Demoratic Achievement afthe International Criminal Court Madelme Morris: The Disturbing Demoratic Defect ofthe International Criminal Court Mark A. Drumbl: Juridical and Junidictional Disconnects Sirnon Chesterman: Justice tmhr International Administration: Kosovo, East T h o r and Afhanirtan Nehal Bhuta: Great Expectations - East Timor and the Vicssiitdes a f ExternalixedJastice

3

7

71 109 119 143 165

Articles Frddiric Mdgret: Three angersfor the International Criminal Court: A CmticalLook at a Consensual Prgect Jan Iaabbers: Just Revenge? The Deterrence Azument in International CriminalLaw Felix Herzog: How to Find the Propotlionate CriminalSentencef r C&es againrt H m a n i g Florian Jessberger: Prosecuting International Crimes in Domestic Courts: A Look Back Ahead V q i Koivu: Head-@State Iimmnig v. Individual Criminal Responsibility under International Ldw

193 249 269 28 1

Duncan Adrian French: The Interaction ofComzmi9 and International h: Similar, bzit Dzferent, or Jzift Dzferent? Christine Gray & Sirnon Olleson: The Limits ofthe LW on the Use $Force: Turkey, I r q and the &rdf

Book Reviews & Review Articles Hilary Charlesworth & Christine Chinkin, The Boundaries oflnternationallaw: A Feminist Anahsis (Merja Pentikihen & Anja Lindroos) Pieter H. F. Bekker (ed.), Commentaries on World Court Decisions (1987-1996) & Pieter H. F. Bekker, World Court Decisions at the T m ofthe Millennium (1997200 1) (Ruth Donner) Willram A. Schabas, Genocide in Internationallaw: The Crime ofcrimes (Marja Lehto) Eyassu Gayim, The Concept ofMinotity in Internationalhw: A CriticalStu@yofthe Vitaj Elements v i m 0 Koivurova) Mchael Hardt & Antonio N e p , Empire vommi Ralli) Nikolaos K. Tsagourias,Jurispmdence of Internationallaw: The Hmanitarian Dimension (Pi1 Wrange) Outi Korhonen, International Law Situated:A n Anahsis oftbe b y e r ' s Stance towards Culture, Histoy and Community (Susan Marks)

A New Finnish Doctoral Dissertation in International Law Tirno Koivurova (lectio praecursoria, 24 November 2001): Environmental Impact Assessment in the Arctic: A Stu& ofthe InternationalLegal Norms Applicable to the Planning Stage of Environmenta& Hamful Activities Review by Eric Franckx

In memoriam HeikkiJokeka (Timo Esko) KkriJoutzamo (Heikki Kulla & Kauko Wlkstrom) Frank Horn (Kari Hakapaa)

Recent Developments and State Practice Tirno Makkonen: ~ lizght.'Maa'e One Wrong the Case $JokeLa v. FinIand Case Note: W h e Two Anna Sotaniemi: Elements of Finnish Practice 2001 Genera1 Information for Authors Ius Gentium Association

479

Symposium Justice without borders? Externalizing criminal punishment for past atrocities

This page intentionally left blank

Introduction:

Externalization of Justice What Does It Mean and What Is at Stake? Chandra Lekha Sriram & Brad R. Roth, symposium editors

Over the last decade, with the development of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, the establishment of the International Criminal Court (ICC), and the increased use of universal jurislction to bring cases against defendants having no h k to the prosecuting state, the processes of retributive justice have been increasingly internationalized. T h s symposium will address one feature of this internationalization: the extemakpation ofjkstice. T h ~ s phenomenon includes not only prosecution of defendants in courts far from the state and society where the crime occurred, but also local prosecution through institutions and procedures developed far from the location of a crime - what might be referred to as mlt~ralextemalipation. The articles below identify several virtues and vices in the increasing internationalization and externhation of justice, and indeed in the use of judicial proceedmgs as such, to address serious human rights violations. The apparent virtues of pursuing accountability through any of these juridical methods are several: that pursuit of these cases wherever they might be raised re-affirms a collective commitment of the international community to key human rights standards; that specific institutions, such as the ICC, contribute to strengthening new democracies that sign on by enabling them to pre-commit to certain standards; that pursuit of former leaders accused of serious violations can help to strengthen nascent democracies; that, quite simply, in the absence of such proceedings perpetrators of atrocities might go free. Many of the pieces in this symposium, however, also strike a note of caution. Critics note that outside actors, be they other states or international tribunals, can have vested interests that may or may not align with the needs of the society where the crimes occurred. Furthermore, extraterritorial prosecution, even where undertaken with the best of intentions, may be insufficiently attentive to the needs of states in transition from conditions of civil war or dictatorship, and may thereby, for example, miss an opportunity to develop domestic legal institutions, undermine

4

Finnish Yearbook ofIntemational Lazv (Vol. XII, 2001)

the legtirnacy of existing domestic institutions, or strengthen the hand of recalcitrant supporters of the former regime who seek to characterize any convictions as unjust foreign impositions. The authors in h s collection address different forms of internationalization - the international tribunals, the ICC, mixed tribunals, and universal jurisdiction employmg a range of disciphary approaches: law, political science, geography, and philosophy. The basic query, however, remains the same: what are the implications, good

re.ponsibiZi9 for human rights vioLations by exteml processes, and ill, of adjzdicating cmcmminal frequentb taking place farfrom the loctls o f the mime, and governed by institutions and oficials general& not drawn from the society where the cmcmmes ocmwed? T h s theme gives rise to a complex set of questions, empirical and normative, to be examined in each article in this collection. Amy Ross gives an overview of the phenomenon of the increased prosecution 'elsewhere' of gross violations of human rights, emphasizing the use of international courts and tribunals as well as the exercise of universal jurisdiction. She examines this phenomenon within the analytical framework of critical legal geographres, askmg what spatial aspects of international criminal tribunals and the doctrine of universal jurisdiction make them particularly useful for the prosecution of crimes against humanity. She argues that this 'spatial fix' is the strategy of choice of a certain element of a flourishg global civil society and a growing network of human rights activists. She suggests that the growth of this network depends upon an international culture and infrastructure, and that the development of international law, in m,draws from the activity of this global network. Brad R. Roth argues that although there is much to be said for international efforts to bring to justice the perpetrators of wanton atrocities, there are also risks. The most ambitious approach to retrospective and extraterritorial prosecutions of human rights violators reflects a theoretical framework -which he terms 'antisovereigntism' - that obscures countemailing moral considerations, and therefore potentially gves rise to serious excesses. Anti-sovereigntism has inspired a jurisprudence of international criminal justice that disparages the irnmunities once conferred by positive law and acts of state, and that exalts a universalist morality over the particularism of local political projects. The resulting excesses, he argues, would (paradoxically) compromise the same liberal principles on which the efforts purport to be based. Chandra Lekha Sriram addresses the potential ramifications for transitional societies of the exercise of universal jurisdiction. The two most frequently cited justifications for the use of universal jurisdiction point to normative and pragmatic concerns of the international community, rather than the needs of transitional societies. Begmmng with several strands of political theory, she articulates potentially important normative goals that may be sought in addressing accountabhty in transition. She argues that there are several reasons to be cautious

Extemalixation OfJustice: What Does It Mean and What L r at Stake?

5

about the use of universal jurisdiction. First, trials frequently fail to achieve their putative goals, even when they take place in the society where the crimes occurred; distant justice may have an even more limited impact. Second, distant justice may be counterproductive, running the risk of undermining key needs of transitional societies. This risk may be compounded where the exercise gives rise to inconsistency of practice or competing jurisdictions. Tlvs does not mean that the exercise of universal jurisdiction is never appropriate, but rather that it must be engaged in with great care. Jamie Mayerfeld argues that when states prove un-g or unable to prosecute grave human rights violations committed on their territory, justice must be sought elsewhere. The ICC is one response to the problem of states too enfeebled or corrupt to uphold human rights; it represents a form of 'external justice'. Yet the Court's function as an external enforcement agent can be understood in two very different ways. On the 'democratic insurance' model, the Court is the creation of states seeking an added protection against the emergence of tyranny at home. On the korld sheriff model, the Court reflects the right and obligation of states under natural law to punish grave violations of human rights anywhere in the world. The difference between these two models carries implications for the jurisdiction, character, and composition of the Court, as well as its relation to national institutions. Although the world sheriff model provided the initial inspiration for the ICC, the Court's greatest value and most lasting impact will derive from its role as an insurance policy for democratic states. It is by exercising this role that the Court will allow external justice to contribute most substantially to internal justice, and vice versa. Madeline Morris argues that the jurisdictional structure of the ICC poses a tension between two sorts of accountability: the legal accountab&ty of the perpetrators of international crimes, on the one hand, and the democratic accountabhty of the ICC itself, on the other. The ICC Treaty solves the problem of colluding regimes' shelding perpetrators from justice by providmg that, under some conditions, the ICC may exercise jurisdiction over defendants even if their states of nationality are not parties to the treaty and have not otherwise consented to jurisdiction. In so doing, Morris observes, the treaty invites the court to assert authority - law-mahg authority as well as law-enforcement authority- over populations with which the ICC has no relationship of representative governance. Within t h s solution to the problem of colluding regimes, Morris contends, lies a deep democratic defect. Morris places this critique of the democratic legtimacy of the ICC within the context of the broader debate on the democratic deficit of a range of international institutions. Mark Drumbl argues that there is a disconnect between trials, in particular those undertaken extraterritorially, and the attainment of their avowed goals. Creating a presumption in favour of criminal prosecution has dampened the need to

6

Finnish Yearbook: of International Ldw (Vol. XII, 200 1)

carefully explore whether such trials actually are suitable for the afflicted society. A countervailing paradigm would base policy responses to mass atrocity upon contextual inquiries, not globalitarian or legalistic agendas, thereby leading to a preference for flexible, polycentric responses. Drurnbl takes Rwanda as the major case study for this analysis; a secondary analysis is made of prospective efforts to hold al-Qaeda and Taliban operatives responsible for alleged terrorist crimes and human rights abuses. His socio-cultural legal analysis suggests that both Rwanda and Afghanistan may be places where multi-variegated responses to conflict may be most apt. Potential Taliban involvement (whether passive or active) with terrorism -which could amount to a crime against humanity- makes t h s &scussion particularly topical. Simon Chesterman examines the externalization of justice in the context of international admmstration of a post-conflict territory. In such circumstances, where the institutions of state are being exercised on an interim basis by a benevolently despotic power (such as the United Nations), it may be argued that justice is already internationalized. Nevertheless, experience in this area has been improvisational rather than principled. What law should be enforced? By whom? And, crucially, how should one resolve the potential dilemma between building capacity for sustainable local institutions and maintaining respect for intemational standards of justice? The article explores these questions through the experiences of United Nations adrrrrmstrations in Kosovo (1999 onwards) and East Timor (19992002) and the assistance mission in Afghanistan (2002 onwards). Nehal Bhuta considers East Timor's experience with the 'mixed tribunal' model of international justice, and reflects on the reasons for which this experiment is widely regarded as a fdure by both East Timorese stakeholders and internationals. He then considers the East Timorese demand for an international criminal tribunal, and the high expectations placed on such an institution, generated in part by misperception and a lack of detded knowledge of the experience of the ICTR and ICTY. Whde it is unlikely that an international criminal tribunal d hlfd all the expectations that its East Timorese proponents have of it, it is argued that the demand for an international criminal tribunal is legitimate, and is rightly perceived as having a greater chance than existing methods to actually achieve accountability for the crimes of twenty-five years of belligerent occupation. However, in light of the slim prospects of establishing such a tribunal in the current context, the piece ends with a reflection on the &fficult and unsatisfjmg prospects for justice for the East Timorese. The articles in t h ~ ssymposium highlight the need for systematic examination of a burgeoning phenomenon in international human rights enforcement. The arguments presented are at times diametrically opposed, at times mutually reinforcing and interwoven. Taken together, they help to illuminate the problems of - and the prospects for - the externalization of justice.

Geographies of Justice: International Law, National Sovereignty and Human Rights Amy Ross*

Introduction T h s article uses the analpc lens of geography to explore the contemporary phenomenon of the prosecution of abuses of human rights, often committed by the powerful. This phenomenon has received considerable attention, especially by lawyers, political scientists and human rights activists. I seek here to contribute to the discussion with an exploration of the geographical dunensions of the phenomenon. Specifically, I explore the way that the current acceleration of jubcial proceedings against state actors for human rights abuses relies upon a spatial 'fix,' that is, the pursuit of justice in a state other than where the crimes occurred.' T h s spatial fur is in a sense the 'externalization' of justice referred to elsewhere in this collection of articles. The spatial fix is a further step in the progressive development of international legal norms, once largely relegated to regulating relations between states but increasingly having effect on activities w i h states. I begm with the problem of impunity, and how the difficulty of bringing powerful perpetrators to justice at home has led to the use (and creation) of jurisdictions elsewhere. I then turn to the historical relationship between international law and state sovereignty,with individuals affected even where they did not have standmg. I focus on the growth of the 'human rights regime,' and its impact on local, national and international transformations. I argue that human rights activists and others acting in an increasingly global network navigate multiple

* Assistant Professor, Department of Geography, University of Georgia

Elsewhere, I have developed the concept of 'the spatial fix of justice' more extensively (see A. Ross, 'The Spatial Fix of Justice: International Law and the Prosecution of the Powerful,' manuscript submitted to Urban Geograpb, 2002). In that essay, I draw on geographer David Harvey's notion of 'the spatial fm' to analysis the role of space in these struggles concerning justice and power. See, for example, D. Harvey, The Limits to Capital (Oxford University Press, 1982) and Spaces ofHope (Edinburgh University Press, 2000). 1

8

Finnish Yearbook ofInternational ltzv (Vol. X I , 200 1)

geographical 'levels,' in pursuit of receptive jurisdictions. In doing so, the activities associated with the 'externalization' of justice transform places and spaces.

The Problem: Prosecuting the Powerful The observation that 'A person stands a greater chance of being tried and convicted for the murder of one than for the murder of a hundred thousand'2 highhghts the ddemrna of justice in the wake of mass atrocity. While it is the powerful that are in a position to commit massive abuses, their very power often protects against prosecution. This problem, often referred to as 'impunity,' has been recognized as the central obstacle to redressing abuses by the powerful. Despite substantial developments in international law concerning the protection of human rights (particularly since the end of World War II), those state actors in a position to commit grave atrocities often enjoy impunity at home. Local efforts to achieve justice have generally failed when confronted by resistance from the powerful w i b the nations. Particularly in those nations that have experienced intense conflict and the widespread violation of human rights, judicial proceedings against those considered responsible have been rare. Indeed, truth commissions (often accompanied by amnesties) have been far more plentiful that trials.3 However, whlle many powerful rights abusers have avoided prosecution at home, they now face increasing risk of prosecution abroad. A number of individuals thought to be responsible for human rights abuses are being served indtctments, and (occasionally but increasingly) brought before judicial bodies. The arrest in 1998 in London of Chlle's former ruler, Augusto Pinochet Ugarte, brought the exercise of externalized justice to the world's attention. That same year, Jean Kambanda, the former prime minister of Rwanda, was charged with genocide by the International Criminal Tribunal for Rwanda, located in Tanzania. Hissene Habre, the ruler of Chad from 1982-1990, was indicted in 2000 in Senegal on charges of torture and political killings. Slobodan Milosevic, former president of Yugoslavia, was transferred to The Netherlands to face charges of crimes against humanity and genocide at the International Criminal Tribunal for the former Yugoslavia in The Hague in 2001. A key feature of all of these cases is the fact that the proceedings occur in a place other than where the crimes occurred. Transnational activists have increasingly Attributed to Josi Ayala Lasso, United Nations Krgh Commissioner for Human Rights (1996), as quoted in V. Morris and M. Scharf, The International C i h n a l T i b m a l f o r Rwanda pransnational Publishers: New York, 1998). 3 See A. Ross, 'The Body of the Truth: Truth Commissions in Guatemala and South Africa,' PhD thesis, University of California, Berkeley (1999). 2

Geogvapbies OfJustice: International Lzw, National Sovereignty and Hzmzan Rights

9

utilized the opportunities provided by jurisdictions receptive to cases involving crimes of international concern. The cases mentioned above are among the most famous; there are dozens of cases before courts today involving the principle of universal jurisdiction.4 Some of these cases involve persons thought to be beyond the reach of the law. Henry Kissinger, for example, while touring Europe in 2001, ducked a summons by a French judge to provide information on the Pinochet case, leaving Paris in haste.5 Following the filing of a suit in Brussels against Prime Minister Ariel Sharon: the government of Israel issued a travel advisory to its highranking officials, alerting them to foreign countries that might be keen to exercise universal jurisdiction. The list includes many of the western liberal democracies. Particularly since the arrest of Pinochet in London in 1998, there has been an acceleration of activity concerning lawsuits brought in foreign jurisdictions. Within the considerable debates associated with these cases, the consensus is that such cases are becoming more common. This phenomenon has been described as 'justice without borders,' 'doing justice elsewhere,' and, in this collection, as the 'externalization of justice.' And yet why are certain juris&ctions considered more appropriate than others? What is the proper jurisdiction in which to prosecute the so-called 'crimes of international concern,' i.e. genocide, war crimes, and crimes agmst humanity? Should such crimes be tried in an international court, or are national jurisdictions the appropriate venue? If the latter, which national jurisdictions are most appropriate? Although questions of jurisdiction are often highly contested, there is a predisposition to award national territories preeminence. In the Pinocbet case, for example, a central argument against his arrest in London (and possible extradition to Spain) was that it was up to Chile to decide how to prosecute or pardon Pinochet. National sovereignty was presented as a legal trump card. The current phenomenon of prosecutions for crimes of international concern (genocide, crimes against humanity and war crimes) in a place other than where the crimes occurred offers an opportunity to rethink the geography of justice. The

4 For more on the varieties and extent of recent cases that invoke universal jurisdiction, see C. L.Sriram, 'Beyond the Famous Cases: the unevenly expanding scope of universal jurisdiction,' unpublished ms (2001); and Sriram, 'Contemporary practice of universal jurisdiction: disjointed and disparate, yet developing,' 6 InternationalJo~rnalofHman Rzghts (forthcoming fall 2002). 5 See B. Broomhall, 'Criminal Justice on a Global Scale,' New York Times (13 July 2001) at Al. More recently, Kissinger cancelled a trip to Brazil out of similar concerns. For an extensive discussion of Henry Kissinger's association with war crimes, see C. Hitchens, The TtialofHeny Kissinger (Verso: New York, 2001). Kissinger's objections to the use of universal jurisdiction are articulated in Henry Kissinger, T h e Pitfalls of Universal Jurisdiction,' 80:4 Foreign Afairs (July/August 2001.) 86-96. 6 The suit was filed by Lebanese and Palestinian plaintiffs, who accuse Sharon of responsibility for crimes against humanity in the 1982 massacres in Sabra and Shatila refugee camps by Israeli-backed Lebanese militia.

Finnish Yearbook OfIntemationalLaw (Vol. XI1; 2001)

violence of a 'human rights abuse' happens 'locally;' i.e. to a particular body, and to entire communities. Yet these acts and experiences of violence have ramifications for national and international politics. Geographer David Harvey has observed that "'globalization" is the most "macro" of all discourses, while that of "the body" is the most ''micro" . . . these two discursive regmes - globalization and the body operate at opposite ends of the spectrum in the scalar we might use to understand social and political life. But little or no systematic attempt has been made to integrate "body talk" with ''globaluation talk". The only strong connections to have emerged in recent years concern individual and human rights7.7 Globalization is often depicted as existing in a zero-sum relationship to state sovereignty: increases in (what is understood as) globalization necessarily entail relative decreases in the powers conferred to states. Others argue that nation-states can in fact grow stronger through the development of global norms and regulations. That both theories hold sway over numerous observers testifies to the mutually constituted nature of the 'national,' and 'international.' The historical development of international law illustrates these contralctory dynamics.

International Law, State Sovereignty and the Protection of Bodies International law has tradtionally served to a f f m state sovereignty. As modem states formed, they increasingly sought codes, agreements and regulations for their dealings with one another. The Peace of Westphalia, with it agreements to regulate conduct between states, is generally seen as foundational to the contemporary state system and international law8 precisely because the need to protect states (and state sovereignty) rested on the establishment of an international order. This is particularly evident in the treaties and agreements reached in order to ensure safe passage on the high seas for the colonial powers. In general, states expressed little concern for what another state did to its own people. States attended to what occurred inside another state only when these actions affected their political-economic interests. International law in its early stages of development correspondingly addressed the relations between states and only rarely addressed what another state could do to human bodies w i b states. Statehood, and the principle of sovereignty, was a cloak that served to protect against the intervention of other states. International law, in its early incarnations, Harvey, Spaces ofHope, sqra note 1, at 15. 8 HJ. Steiner and P. Alston (eds.), IntemationaL H m a n Rzghts in Context: LW, Podtics, Morab (Clarendon Press: Oxford, 1996) at 148-160. 7

Ge0gmpbie.r OfJustice: Intemdtional LW, National Sovereignty and H ~ m a nRights

11

generally did not address the rights and welfare of human beings;g rather it reinforced the sovereignty of nation-states. A growing concern for the treatment of solders during wartime contributed to a new direction in international law, one more expressly concerned with the fate of particular human bodies. By the late 19th century, public awareness concerning the treatment of sick and wounded bodes of solders contributed to legal regulations and social movements. Many scholars10 attribute this development to the advent of the war correspondent in the mid 19th century War became simultaneously more visible, and more savage. With the invention of Morse code and advances in photography, war correspondents generated war reports. Previously, reports from battlefields were submitted by a general, who tended to depict acts of heroism and glory. The dead rarely had the opportunity to share their stories. The war correspondent shifted this equation slightly, and the public reacted. In response to this new public exposure to the horrors of the battlefield, President Abraharn Lincoln passed legislation (the Lieber Code for Armies in the Field, 1863) governing the conduct of soldiers. In the same period, the Red Cross was established, grounded in part upon the rising concern over the fate of bodies in war. Jean-Henri Dunant, a wealthy Swiss national, witnessed the Battle of Solferino in 1859. Although the rest of Europe was celebrating the battle, Dunant was obsessed with the images he had seen of the war dead and wounded. Writing about his experiences, he described the horrors of the battlefield, the ground dark with blood, severed body parts, splintered bone fragments, wounded men desperately flailing about, and local peasants harvesting the corpses for boots and other spoils of war. Dunant began to lobby for an international convention that would allow for first-aid societies to care for the wounded (from both sides) in battle. The Red Cross (so named due to the association with the Swiss flag) was soon formed in Geneva. In 1901 Dunant, the founder of the (then renamed) International Committee of the Red Cross, was awarded the first Nobel Peace Prize. International humanitarian law departs from early norms and ideologes concerning warfare in two critical ways. First, international humanitarian law attempts to limit the damage a state can inflict during war - even if that war is

Certainly, the ideas of the individual 'rights of man' impacted the powers of the state. Prior to the 20th century, these ideas were linked to the relationship between 'man' as citizen, and the sovereign. See Y. Beigbeder, Jndgig War C72;mnah: The Pobtics of International Jnstice (St. Martin's Press: New York, 1999); A. Neier, War Cbmes: Bmtahp, Genocide) Terror and the Stmglefor Justice (Times Books: New York, 1998); G. Robertson, Cbmes Against Hnmanip: The Stmglefor GlobalJnstice, (The New Press: New York, 1999). 10 See Neier, War Crimes) strpra note 9, as well as M. Ignatieff, The Warrior's Honor: EEthc War and the Modem Conscioz/sness(Henry Holt: New York, 1997) and L. Weschler, 'International Humanitarian Law: An Overview' in R. Gutman and D. Reiff (eds.), Crimes of War.- Wbat the Public Sbodd Know (W.W.Noaon and Co.: New York, 1999). 9

12

Finnish Yearbook $International

Lazv (Vol. X11,2001)

considered just in cause.11 As such, international humanitarian law impinges on sovereignty in precisely the way that earlier aspects of international law reinforced the autonomy of states. Second, international humanitarian law recognized distinct human identities, with violence against certain bodies considered abhorrent- again, even in the conduct of a just war. International humanitarian law addressed the treatment of wounded and captured soldiers, and later, addressed the treatment for the protection of those bodies identified as 'civilian'. These developments in international humanitarian law reflected and created evolving tensions between the body of the individual and the actions of nations. Geneva, and later The Hague in the Netherlands, became centers of a series of initiatives that increasingly codified international humanitarian law. The f ~ s t 'Geneva Convention' (1864) was the product of a meeting of representatives from sixteen countries, including the United States, to discuss ways to improve medical services on the battlefield. A series of agreements followed ('the Geneva Conventions'). The Geneva Conventions, The Hague Conventions (1899, 1907) and other elements of international humanitarian law have acquired the status of customary international law, recogmed as binding due to the 'general and consistent practice followed by states from a sense of legal obligatiod.12 All c i d z e d peoples were to abide by these conventions: recogn&on of these laws was a precondition for membership in a civilized community. These developments in international humanitarian law reflect and create evolving tensions between the body of the individual and the actions of nations.

The Human Rights Era A global human rights regime began to emerge at the end of World War 11. The prosecution of Nazis, the drafting and debate of the Universal Declaration of Human Rights and other treaties aimed at the protection of human security, and the establishment of the United Nations were key events in the development of human rights norms and law. The prosecution of defeated Germans in Nuremberg marked a sipficant development in the formation of international human rights law. The Nuremberg trials were innovative in two ways. First, individuals could be held accountable for actions taken as officials of the state. Second, individuals could be judged guilty for 'crimes against humanity' for actions against citizens of their own state. Whereas war Hence the distinction between jus ad bello and jus in bellum. N. Roht-Arriaza (ed.), Impunio and Haman Rzghts in Intemastiona/ La2v and Practice (Oxford University Press, 1995) at 24, more generally G. Robertson, Cn'mes against Hamanio, szpa note 9. 11

12

Geograpbies $]zt.rtice: Internationalb, National Sovereignty and Hzsman Rights

I3

crimes addressed actions by combatants in the pursuit of warfare, 'crimes against humanity' concerned the actions of civilians (including leaders of state), even outside the context of warfare. Despite the caveats and complaints regarding thrs form of 'victor's justice3,l3what is clear is that these trials represented a shft: the security of 'humanity' (existing everywhere) was the domain and concern of international law (again, existing everywhere). The Charter of the United Nations (1945) established that certain crimes relating to war would be crimes of international concern. The immediate post-war period generated a series of norms and conventions concerned with the treatment of human rights, including the Universal Declaration of Human Rights14 and the Convention on the Prevention and Punishment of Genocide (hereafter the Genocide Convention), which began to assert the supremacy of international law over domestic law and state soveregnty. The Genocide Convention established that perpetrators of the crime of genocide could be held accountable under international law, even in the absence of applicable domestic law. The Genocide Convention further provided that an individual acting in his/her capacity as head of state would be accountable under international law. A series of treaties and conventions followed in the next several decades, and the Geneva Conventions were extended. These initiatives were a sqpficant development in that human rights law limted governments in a sensitive area - their exercise of power over their own citizens. The view that individual human beings have rights, as humans, gained credbility. Further, these rights were increasingly treated as of international concern, rather than as rights to be protected (or not) by national governments. The Universal Declaration of Human Rights brought together the global and the 'microscale of the body and the political person' in a powerful combination.15 The emergence of a social recogmtion of 'planetary problems'l6 contributed to the call for international oversight. The threat of nuclear weapons and environmental degradation required the engagement of nation-states in multdateral cooperation and agreements and submission to new legal h t a t i o n s . Shared planetary problems demanded attention beyond the private treaties between states,

13 'Victors' justice' refers to the notion that the trials were an example of justice as an execution of authority; see more generally M. Foucault, Discipline and P~nish:The Birth ofthe Prison, (Vintage Books: New York, 1979). 14 Critics have noted that the Universal Declaration of Human Rghts was consciously more of a wishlist than a statement of existing laws/practices, or a commitment by its authors to respect such norms. Both the Soviet Union and the United States had a tempered tolerance for proclamations of 'rights' in the f ~ splace: t 'Everyone had something to be ashamed of; M. Ignatieff, 'Human Rghts: The Midlife Crisis,' 46 The New York Reuiew ofBooks (1999) at 58. '5 Harvey, Spaces ofHope, supra note 1 , at 90. ' 6 M. Waters, Globalixation (Routledge: New York, 2001) at 101.

14

Finnish Yearbook ofInternational h(Vol. X11,200 l )

and were deemed too serious to be left to the 'dubious intentions of any one hegemonic power'." A key result was the growth of international norms, institutions and networks. Social and political energies were redirected toward global mechanisms as solutions for these problems. Human rights norms developed along with a host of other international norms. The subject of human rights has been 'internationahzed beyond all expectationsYl8and the protection of human rights has been elevated to a central feature of the discourse of indwidual nations, international organizations and a huge network of other organizations.19 The existence of the United Nations enabled a communicative and normative framework; human rights norms have developed greatly within (and beyond) the UN system. The post- World War I1 era witnessed the growth of a web of nongovernment organizations (NGOs); some estimates place the number at more than 15,000. Individually, such organizations may cover as few as two national societies, but in their operations together they create what scholars have termed a 'global network'.20 NGOs can be powerful in their capacity to h k diverse people in relation to common causes and interests. The example of the international human rights group Amnesty Intemational illustrates the experience of a human rights organization's relationship to local, national and international activities. Founded in 1961, Amnesty International originated with a newspaper appeal by a British lawyer, Peter Benenson, entitled 'The Forgotten Prisoners'. That first year, Amnesty International investigated 210 cases, and operated on a budget of less than $10,000. The organization grew quickly, drawing membershp from more than 100 countries and conducting investigations throughout the world.21 Local human rights movements were stimulated by the existence of the international NGO, which (sometimes) provided effective protection. As an international NGO, Amnesty International was in a position to lobby the United Nations, based on cases from particular locales, and directly impact the status of particular nation-states. For example, the United Nations' Human Rights Commission experienced difficulty in 'naming' Argentina as a human rights abuser; '7 18

Ibid. T. Buergenthal, International H m n Rights in a Nutshefl (West Publishing CO: St. Paul, 1995) at 20.

' T h e 50th anniversary of the Universal Declaration of Human Rights in 1998 generated wide-spread discussion about the 'human rights era,' see generally Ignatieff, 'the Mid-life Crisis,' stcpra note 14; D. Manasian, 'Survey: human rights law,' The Economist (5 December 1998); D. Reiff, 'The precarious triumph of human rights,' The New York Times (8 August 1999); T. Risse, S. Ropp and K. Sikkink (eds.), The POW o f H m a n Rzghts: International Norms and Domestic Change (Cambridge University Press, 1999). 20 M. Keck and K. Sikkink (eds.), Activists byond borders Transnatonaf Advocay Network in Internationai Pollitics (Cornell University Press, 1998). 21 'About Amnesty International,' <www.amnesty.org> (accessed 4 August 2002).

Geographies OfJztstice: International h, National Jovere&ng and H z t a n Rights

I5

certain members were reluctant to establish a precedent, lest they be subjected to the same sanctions. Amnesty International persisted with the presentation of information, forcing members to address the problem." During this debate, Argentina attempted to block Amnesty International's presentation of information on the disappeared, but the United Nations Human Rghts Commission ruled that NGOs could submit such materials. As such, local human rights issues gained access to a global audience.

Conclusion: Geography and Justice Globalization provides a 'political opportunity structure7= in which social movements can operate at multiple levels. Scholars have described a 'boomerang effect . . . in which national human rights (or other) movements can bypass their own target state and rely on international pressure from other states and the transnational human rights movement to help accomplish goals at home7.24It seems likely that without the application of external justice through the cases brought in Spain and elsewhere, Pinochet would have continued to enjoy impunity in Chde.25 But upon returning to Chile in March 2000, Pinochet faced dozens of cases alleging h s responsibdity for human rights abuses. The 'externalization of justice' involves the geographical expansion to new territories; in the Phochet case, and those before the Belgian courts, through the use of jurisdictions other than that of the territory where the crimes occurred. Human rights activists have increasingly sought out foreign jurisdictions w i h g to exercise universal jurisdiction to pursue cases that have been stymied by impunity in national arenas. In those instances, the national jurisdiction that hosts the case involving crimes of international concern is transformed into an international arena. T h ~ sis one aspect of the transformative nature of the contemporary 'externalization' of justice. Another is the creation of entirely new spaces and places. The International Criminal Tribunal for the former Yugoslavia (ICTY), established in 1993, is an example of this aspect of the extemahzation of justice. W e in its infancy, the Tribunal lacked material and human resources, the political will of the international community to support its efforts, and even (for the first two years) a

I. Guest, Behind the Disappearances: Argentina? D i q F u r Against Human Rights and the United Nations (University of Pennsylvania Press: Philadelphia, 1990). 23 J. Guirdy, M. Kennedy and M. Zald (eds.), Globadxation and Sokal Movements: Culture, Power and the TransnationalPubdc Sphere (University of Michigan Press: Ann Arbor, 2000). 24 Keck and Sikkink, Activists bgond borders, sszcpra note 20. 25 See R. Falk, 'The pursuit of international justice: present dilemmas and an imagined future' and N. Roht-Arriaza, 'Institutions of international justice' in 52 Journal oflnternationalAfairs (1999). 22

I6

Finnish Yearbook ofInternational Ldzv (Vol. XII, 200 1)

suspect in custody to try.26 Critics have argued that the United Nations established the Tribunal as 'the right thing for the wrong reasons7-it is generally thought to have been established by member states out of shame at the failure of membernations to act more aggressively in curtailing the violence in the Balkans.27 But the Tribunal aggressively pursued its mandate, pushing member nations into compliance. Perhaps the most salient example is the case of Slobodan Milosevic, who might never have been arrested and brought to The Hague but for the pressure (and the use of aid as leverage) of key Western governments upon the new government of President Vojislav Kostunica. These governments had themselves been heavily lobbied by the ICTY's prosecutor, Carla del Ponte, in a move symbolic of the Tribunal's increased activism. Despite objections by some Serb nationalists that the constitution prohbited the transfer of a national to a foreign state, officials of the federal Republic of Yugoslavia bypassed these objections by arguing that the Tribunal was an international institution rather than a foreign state. Milosevic's trajectory, from politician, to president, to international human rights law precedent, highlights the complex and evolving powers of global justice. The question of jurisdxtion in Mr Mdosevic's case points to the evolving nature of international space, as it plays host to an increasingly forceful network of human rights activists organized around efforts to prosecute those responsible for mass atrocity. Achieving limited and highly chfferentiated success in nations around the world, the activities surroundmg the 'externalization of justice' operate at several levels, as part of a transformed, and transformative, politics.

See R. Goldstone, For Hmanip: ReJections of a War C h e s Prosemtor (Verso: New York, 1999) and G.J. Bass, J t g the Hand of Vengeance: the Pobtics of War Cn'mes Tn'b~nah(Princeton University Press, 2000). 27 See Neier, War Cn'mes, sstcpra note 9. 26

Anti-Sovereigntism, Liberal Messianism, and Excesses in the Drive against Impunity Brad R. ROW

Introduction A half-century ago, J.L. Talmon traced the o r i p s of modem totalitarianism to a tendency in political thought that was based on the assumption of a sole and exclusive truth in politics. It may be called political Messianism in the sense that it postulates a preordained, harmonious and perfect scheme of things, to which men are irresistibly driven, and at which they are bound to arrive.'

Talmon located the roots of extremism in a misguided c a h g to conquer contingency itself. He ascribed this catastrophic mission to an all-too-human urge 'for a final resolution of all contradictions and conflicts in a state of total harmony', an 'inability to face the fact that life is a perpetual and never resolved crisis? A half century later, there has come into prominence a trend in political and legal thought that exhibits the same habits of mind, though tending concretely in a reverse direction. The political messianism represented by totahtarianism embraced the state as a vehicle of social transformation, and exalted exertions of political will; the new political messianism disparages the state, and seeks to subordinate all exertions of political will to an everywhere-and-always-applicable body of law. The old political messianism saw the realization of freedom 'only in the pursuit and attainment of an absolute collective purposey$ the new political messianism sees freedom in the negation of collective purpose. The old political messianism, while * Associate Professor of Political Science and Law, Wayne State University. J.D., Harvard Law School,

1987; LL.M., Columbia Law School, 1992; Ph.D., University of California, Berkeley, 1996. Thanks are owed to Michael Byers, Madeline Morris, Elizabeth Kiss, Jeremy Waldron, Chandra Sriram, and Jamie Mayerfeld for their helpful comments and provocations. 1 J.L. Talmon, The 0tz;gn.rofTotadtan'an Demomay (Secker & Warburg: London, 1952) at 1-2. Ibid. at 254-55. 3 Ibid. at 2.

18

Finnish Yearbook of International LW (Vol. X I , 200 1)

exalting human liberation and popular power, was a radical rejection of liberahsm; the new political messianism is an extreme formulation of liberalism itself. Liberal messianism is manifest in the trend among international human rights advocates toward what I will call 'anti-sovereigntism'. In the post-Cold War era, many in the international law field see a hitherto unknown opportunity to extend the reach of settled legal principles -principles of human rights and liberal constitutionalism - into areas once dominated by the contingencies of politics.4 For anti-sovereigntists, it is hgh time that international legal norms acquire sufficient determinacy to overcome political, ideologcal, and cultural resistance to their animating purposes, that these norms apply to individuals and not merely to abstract entities, and that those bound to obey law be compelled to comply.5 One of the most popular - and most facially attractive - applications of antisovereigntism is the dnve to bring about 'an end to impunity' for alleged human rights violations. If human rights norms are thought to have real legal existence only insofar as they are demonstrably vindicated by exercises of power, criminal prosecution of human rights violators d be perceived as a crucial element of the effort to get human rights to be taken seriously. The notorious ineffectiveness of treaties that obligate states to implement criminal sanctions against officiallysponsored violators has led some activists, judges, and scholars to an almost unrestrained enthusiasm for retrospective and extraterritorial prosecutions - that is, prosecutions carried out by a legal order other than that in effect at the time and place of the acts in question. Consequently disparaged are the legal and political considerations, typically associated with one or another aspect of sovereignty, that tend to impede such prosecutions: stringent interpretations of the principle of n d h mimen et nullapoena silze lege; limitations on the exercise of extraterritorial jurisdiction; immunity h o n e matem'ae of persons operating wihm national territory pursuant to authentic acts of state; immunity rationepersonae of sitting officials responsible for a state's foreign relations; amnesties and tacit assurances resulting from negotiated conflict settlements. Although there is much to be said for international efforts to bring to justice the perpetrators of wanton atrocities, the anti-sovereigntists' drive against impunity invokes a theoretical framework that obscures countervailing moral considerations, and therefore potentially gves rise to serious excesses. These excesses, Susan Marks has coined the term liberal millenarianism' for the excesses of liberal internationalism, though she focuses on other aspects of the same phenomenon. See Marks, 'International Law, Democracy, and the End of History' in Gregory H. Fox & Brad R. Roth (eds.), Democratic Governance and Internationallazv (Cambridge University Press, 2000) 532-66. 5 For an examination and critique of efforts of international lawyers and legal scholars to erode sovereignty-based limitations on norm recognition and implementation, see Brad R. Roth, 'What Ever Happened to Sovereignty?' in Charlotte Ku & Thomas G. Weiss, eds., Toward Understana2ng Global Governance (Providence, R.I.: Academic Council on the United Nations System, 1998), 69-107.

4

Anti-Jovereigntism, liberal Messiranism, and Excesses in the Drive against Impztnity

19

paradoxically, would compromise the same liberal principles on which the efforts purport to be based. The sources of these excesses are the fadure to acknowledge radical disagreement about justice as an enduring part of the human condition, and the consequent fdure to acknowledge the extent of human reliance on - and therefore, reasoned loyalty to - political projects that successfully, if controvertibly, set the terms of social coordination for particular times and places. Such acknowledgments would allow that the collective, not just the individual, enterprises of human beings have a d p t y , and that strangers to those enterprises owe respect -in certain realms and w i h a certain range - even to those systems of collective ordering that they deem to be unjust.6 The consequence of this conclusion is not a sweeping rejection of recent developments in international criminal law, many of which properly reflect the limits to any dignity-based plurahm in regard to systems of public order. Genocide, crimes against humanity, and gross and systematic violations of the laws and customs of war are appropriately 'beyond the pale' of international tolerance. Impunity for violators may have intolerable costs for the intemational system as well as for particular societies. Nonetheless, the breadth of the emergmg licenses for the unilateral implementation of supposedly universal norms (e.g., universal jurisdiction), and of the rhetoric of the drive against impunity more generally (e.g., repudiating all forms of sovereign immunity), necessitates lookmg beyond the most outrageous and clearcut instances of international crime. Less spectacular violent measures are endemic to real-world political confict; because these measures are directed against threats to what a particular project of public order characterizes as the community's vital interests, the criminality vel non of those measures is frequently open to partisan assessment. Broad licenses for retrospective and extraterritorial prosecutions increase the scope for such partisan assessments to operate in the name of international legahty, at the expense of those indviduals unlucky enough to find themselves subject to the jurisdction of an unfriendly court. Moreover, such broad licenses may undermine the pursuit of peace - whch is, on the whole, well served by an intemational legal framework that, rather than embracing a particular vision of a just public order, embodies a respectfbl accommodation among conficting visions. That accommodation includes, to be sure, elements of overlapping moral consensus, but that consensus should not be overestimated.

6 The theme of this essay is inspired by Michael Walzer's landmark defense of the principle of nonintervention, 'The Moral Standing of States', 9 Pbdosapb & Pgbh Afairs (1980) 209. The present argument, however, seeks to root the conclusion more f d y in liberal-individualist philosophical premises, as opposed to Walzer's more 'communitarian' account of the presumptive 'fit' between political communities and their governments. See ibid. at 212. It also extends the argument for the nonintervention norm to cover related norms limiting retrospective and extraterritorialprosecution.

20

Finnish Yearbook ofIntemationa1l a w (Vol. XI, 2001)

This article's affirmation of the legitimacy of moral diversity in the international arena is not, as some would charge, a surrender to moral skepticism or relativism. It is, rather, a sound application of the most essential liberal premises about morality, in light of a sober recognition of the limitations of moral absolutes in international politics.

Theoretical Defects of Anti-Sovereigntism Deontological Liberalism and the Moral Devaluation of the State Anti-sovereigntism strains against tradtional limitations on the reach of international law and international institutions. Its justifications for doing so are based on a denial that the state is an entity, or a project, worthy of special deference. Reacting against the dubious anthropomorphic conceptuahzations of the state that are characteristic of traditional approaches to international law, anti-sovereigntism embraces the opposite extreme, seeking to reduce the state qzka political community to the sum of the individuals who make it up, and the state p a ruling apparatus to a resource-allocation and dispute-resolution mechanism at the disposal of those inhviduals. This anti-sovereigntist view of the state is traceable to the deontological, or neutralist, variant of contemporary liberal political thought.7 Deontological liberalism gives categorical priority to the imperative of respect for the human subject as a rational chooser of its own ends. T h s approach is in contrast to teleologcal approaches to liberal political morality that seek to maximize the reahation of criteria of social well-being, whether such criteria reflect aggregated subjective preferences (utilitarianism) or an authoritative conception of the good life (perfectionism). Deontologcal liberalism is the leading secular basis for regarding rights as inherent in the human person; whereas uthtarian and perfectionist liberals (as well as those who reject liberalism's individuahstic ontological premises) may assert moral grounds on which political institutions ought to create liberal legal rights, deontologists consider that liberal rights have an independent 'existence' as a

The starting point for discussions of 'deontology' in contemporary political theory is John Rawls, A Theoy ofJzlstice (Harvard University Press: Cambridge, Mass., 1971) at 30. The associated issues have been extensively debated. See, e.g., Michael Sandel, Liberalism and the Limits of Jzlstice (Cambridge University Press: New York, 1982); William Galston, LiberalPzlgoses (Cambridge University Press: New York, 1991); Ronald Beiner, What's the Matter mth Liberahsm? (University of California Press: Berkeley, 1992); George Sher, Bgond Nezdrahp: Pefectionism and Politics (Cambridge University Press: New York, 1997). An excellent summary of the issues is contained in Will Kymlicka, Liberalism, Cornmunip, and CuIture.(Oxford University Press: New York, 1989), 9-99. 7

Anti-Sovereigntism, Lzberal Messianism, and Excesses in the Drive against Impztnity

21

matter of deduction from h s t principles, and that the role of political institutions regarding such rights is, at best, to recognize and to implement them.* Deontologcal liberalism has direct implications for the appropriate role of politics in social life, and thus for moral status of the state. Deontologists divide the universe of moral issues into two realms: matters of 'the right' and matters of 'the good'. The right' is understood to include questions of justice, in the peculiar sense of fairness in weighing the legtimately-competing claims of end-choosing human subjects; it is associated with a standard list of liberal rights that are deemed to be universally applicable and neutrally protective of end-choosing subjects. 'The good' is understood to include questions of the nature of the good life and the proper objects of human striving, answers to which must be derived from one of many competing 'comprehensive doctrines of human flourishing'; as these doctrines are deemed to be hopelessly controversial, the conflicting versions of 'the good' that they generate are subordinated to a transcendent conception of 'the right7.9 The result is moral absolutism as to 'the right' and moral subjectivism as to 'the goo8.10 All liberal political thought seeks to de-mystify the state - to debunk, as Femando Tes6n puts it, the 'Hegelian myth' of the state's existence as an organic entity," and to condition the state's authority on rational justification from the standpoint of every individual subject to it. The deontological version, however, goes beyond this to deny that the collective enterprise may legitimately aim to transform the ends of its participants. Thts brand of liberalism does not envisage the mission of political life as the breaking down of diverse interests to forge a common

8 Although

Rawls is a crucial figure in the development of this deontological approach to human rights, his own work since A Theory OfJtlstice has developed in a divergent direction. The natural-law overtones of the early work have since been replaced by much more contingent formulations, especially as applied expressly to international political morality. See Rawls, The Law of Peoples (Harvard University Press: Cambridge, Mass., 1999). As a result, Rawls-inspired anti-sovereigntists have found themselves sharply at odds with their mentor. See, e.g., Fernando Tesbn, T h e Rawlsian Theory of International Law', 9 Ethics & Internationa/Afairs (1995) 79 at 98 (complaining that the later work has 'embraced a more relativistic, context-based conception of justice and political morality, in which rights and liberties no longer had a foundation in higher principles or liberal views of human nature'). 9 See, e.g., Ronald A. Dworkin, A Matter ofPzinn)le (Harvard University Press: Cambridge, Mass., 1985) 181-204, (controvertibly) defining liberalism in neutralist terms. Dworkin contrasts liberalism with the view that 'the treatment government owes citizens is at least partly determined by some conception of the good life', a view he associates with both 'American conservatism and various forms of socialism or Marxism'. Ibid at 192. '0 Deontologists typically deny that their neutrality is rooted in skepticism, asserting rather that even objectively valid judgments about the good life can produce 'the good' only when the individuals in question voluntarily embrace them. See Kyrnlicka, Liberaksm, sqra note 7 , at 12. Fernando Tesbn, Hzrmanitarian Intervention: A n Inqtliry into Law and Morakg (Transnational Publishers: Ardsley-on-Hudson, N.Y., 1988).

Finnish Yearbook of InternationalLazv (Vol. Xld; 200 7)

good; rather, it imagines the common good to consist precisely in making society safe for the pursuit of diverse interests.12 The liberal belief in 'limited government' thus takes on a dual meaning: it is not merely that governmental organs should be subject to substantive and procedural h t a t i o n s (i.e., individual legal rights and institutional checks and balances) to prevent all exercise of absolute and arbitrary power, but that the mission of governance itself should be narrowed to resolution of a limited set of 'collective action problems' that individuals and voluntary associations are structurally incapable of solving, such as the provision of dispute adjudication, law enforcement, national defense, economic infrastructure, and other 'neutrally' justified public goods. This is to say, not that deontological liberalism rejects an activist (or even a sharply redistributive) state, but that it confines the activism of the state to 'neutral' pursuits that do not encroach upon the individuality of the human person p a rational end-chooser. Compulsion is deemed unjust where predicated on grounds that presuppose a state-preferred conception of the good. A potential implication of the deontological scheme is that politics has no legitimate role in determinations of either the right or the good: just as questions of the good are to be decided in a realm below politics -by the independent deterrninations of individuals, alone or in freely chosen association - questions of the right are to be decided in a realm above politics, by deduction from first principles. Logic does not compel &us move. The deontologcal scheme, per se, concerns the substantive grounds, not the procedural rules, for determinations about justice; it may thus serve solely to inform participants in a properly rarnbunctious and open-ended political process, rather than to justifY imposing authority from outside that process. However, the assertion that 'the right' is independent of, rather than dependent on, a necessarily controversial judgment about 'the good' suggests an objectivity and a universality of 'the right' that weigh against deference to political processes in this realm. The deontologcal approach naturally encourages, even if it does not formally justify, the dsparagement of politics. The widespread popularity of judicial review of legislation among deontological liberals c o n f m s this tendency.13 If justice is universal (at least in its 'fundamentals'), rather than the product of a decision at a particular time and place, and if the good life is purely a matter of individual prerogative, then the enterprise of politics is appropriately confmed to a h t e d and subordinate set of purposes. The project of the state, it follows, is of 12 This approach to political life has special resonance in the United States, having been eloquently articulated by James Madison in Federalist 10 (1787), reproduced in Michael Kamrnen (ed.), The Origins oftbe American Constit~~tion (Penguin Books: New York, 1986) 145-52. '3 For an atypical deontological approach that embraces politics (and rejects judicial review), see Jeremy Waidron, La2v and Disagreement (Oxford University Press, 1999).

Anti-Sovere&ntism, L b e d Messianism, and Excesses in the Drive against Inapzinip

23

h t e d and subordinate moral significance, as is the positive law that derives from that project.14 At the turn of the twenty-first century, h s unromantic view of the state has a special appeal. The strong state is widely associated with totalitarian experiments, ethno-nationalist warfare, arbitrary traditional hierarchies, the imposition of the religious and cultural preferences of the politically powerful upon the rest, and a failure of universal concern for human beings as such. Freedom has never been so widely conceptuahzed as freedom from the state, and more generally as freedom to opt out of all relationships and roles not attributable to voluntary consent. Globalization has loosened the bonds of place and called into question the efficacy of national policymakmg in all realms, from economy to culture. Persistent and intensifying immigration trends have rendered at once unfeasible and dysfunctional the strong sense of national identity that once derived from common ethnicity and common religious and cultural values. The philosophical roots of anti-sovereigntism lie in an overreaction to the fetishization of local community and culture. In properly denying that the d i p t y of a human being can be reduced to the d i p t y of his or her assigned role in a corporative entity, and that his or her interests can be lightly sacrificed in the name of the supposed health of the social whole, many liberals (often inspired by, though not necessarily well-educated in, the deontological approach) go so far as to exalt the prerogatives of the individual at the expense of the collective enterprises that are calculated to secure the conditions of individual flourislung. The result is akin to the dogmatism that, in the name of freedom, champions the associational right of individual workers to resist membershp in labor unions, to the detriment of the workers as a whole. Notwithstanding the need to affirm the individual as the ultimate referent of moral value, many human ends can be pursued only by means of compulsory collective decisions. Consequently, respect for individuals frequently requires respect for the decisions of the collectivities of which they are a part. This is often true even where the decisions in question can reasonably be characterized as unjust (as to both their substance and the processes by which they were taken), especially if one allows that assessments of 'the right' cannot be isolated from the wide-rangmg clash of ideas about 'the good'.

'4 Once again, such a conclusion assumes away, or at least judges unworthy of moral regard, the prevalence of fundamental disagreement about justice. Positive law serves as a working resolution of that disagreement for a particular time and place. See Jeremy Waldron, The Dignip of hgishtion (Cambridge University Press, 1999).

24

Finnish Yearbook: $International

LW(C/ol. XIT, 2001)

Compulsory Collective Decisions and the Conditions of Human Flourishing Liberalism justifiably seeks to empower individuals to pursue their own conceptions of the good life, but such pursuits - indeed, even such conceptions - do not arise in a vacuum. Most human pursuits are not even imapable without a context generated by highly contingent social processes. (To take a random example, an individual can scarcely aspire to become a cellist in a symphony orchestra in the absence of complex processes that bring forth fellow musicians, composers, instrument makers, orchestra halls, and much more.) One's capacity to engage in particular pursuits depends largely on which public goods (some tangible, like highways, and some intangible, like tolerance) one's society has decided to produce, and whch to forsake. The production of those public goods, in turn, largely depends - directly and indirectly - on exercises of the coercive power of the state. The characteristic liberal celebration of freedom of choice frequently obscures the complexity of freedom's relationship to coercion and the centrality of state power to the liberal project. In particular, liberals frequently fad (again, more by &position than by deduction) to recognize that increasing the choices of the well-positioned - that is to say, those possessed of material resources, marketable S U S ,and so on- can empower them to opt out of relationshps beneficial to the less well-positioned. (For example: landowners who are set free to engage in mechanized export apculture may throw sharecroppers off of their land, simultaneouslyproducing unemployment and increasing the local price of food; the opportunity for urban-based businesses and residents to relocate to the suburbs may deplete a city's tax base and its core of civic participants, leadmg to dapidation and despair; the option to send the most motivated and talented pupils to private schools may deprive the public schools of their sources of dynamism and morale, as well as of their political base of influential and engaged parents.) The result is that the least well off find their essential life choices diminished by what appears, at first glance, to be an increase in societal freedom. The creation and maintenance of the conchtions of genuinely meaningful choice (a category that eludes value-neutral specification) for the greater part of the society may require that the choices of the strong be coercively constrained. Moreover, the civic institutions that provide the context for meaningful choices can be sustained only in the presence of civic virtue. Not even administrative and market mechanisms elaborately designed to make 'ambition counteract ambition' can withstand a general breakdown of public-spiritedness and

Anti-Sovereigntism, Lzberal Messianism, and Excesses in the Drive against Impunig

25

personal rectitude.15 The needed civic virtue can arguably be eroded by the ready availability of opportunities for instant gratification (everythitlg from promiscuity, gambhg, and drugs to rampant consumerism) and by the free expression of antisocial ideas (such as speech that incites hatred and dscrirnination against ethnic minorities, pornographic images that demean or objectify women, and music that romanticizes or normalizes criminal gang activity). The requisites of civic virtue can be seen in different ways in different places at different times, and reasonable minds will often differ as to whether repression lunits or furthers the empowerment of individuals to make meaningful choices. By no means does deontological liberalism altogether neglect the need to subject individuals to compulsory collective decisions. Indeed, all variants of liberalism take as their project the remaking of state coercion as a component of 'ordered liberty'. Deontologcal liberalism nonetheless asserts that 'ordered liberty' can be specified independent of a collective adoption of a comprehensive doctrine of human flourishing (or collective adoption of a particular accommodation among some such doctrines to the exclusion of others), and therefore that universal rights can fully transcend the decisions of particular political communities about the nature of the good society wherein the good life is pursued.16 By all accounts, individual pursuit of the good life requires the existence of certain nondmisible public goods, the creation of which is burdened by collective action problems (e.g., the temptation to be a free rider), the solution to whch frequently requires collective decisions authorizing coercive implementation. Deontologcal liberals believe that such collective decisions can be limited to those that can be justified 'neutrally', without reference to a contentious conception of 'the good'; since human equality entails, from the deontologcal perspective, equal prerogative of each individual to pursue his or her own conception of the good life, justice entails freedom from all 'nonneutral' compulsion. This model assumes, though, that public goods are a relatively m a r p a l and exceptional ingredient in the pursuit of the good life, and thus that there is no real need for collective decisions about the ends that individuals ought to pursue. Although deontological liberals are frequently in the forefront of egalitarian economic redistribution, their -preferred device of social coordination remains the market -wherein social decisions, even if coercive in their own way, arise from an aggregation of individual preferences, thereby maintaining neutrality. Indmiduals are I

15 See, e.g., Charles Taylor, 'Cross-Purposes: The Liberal-Communitarian Debate' in Nancy L. Rosenblum (ed.), Liberadsm and the MoralLife (Harvard University Press: Cambridge, Mass., 1989), 15982 (arguing that 'republican solidarity underpins freedom'). 16 For a related line of criticism, pointing out that liberalism encompasses rival freedoms, see John Gray, Two Faces ofliberaksm (The New Press: New York, 2000) at 69-104.

26

Finnish Yearbook of International Law (Vol. X11,ZOO 1)

imagmed to pursue the good life, not as participants in official institutions, but either alone or in associations freely chosen from time to time. But what if the barring of collective decisions in certain realms leads necessarily to an atomization that precludes pursuit of many plausible conceptions of the good? What if the requirement of neutrality on matters of 'the good' debilitates the state from serving as the instrument of a needed social transformation? What if the suppression of distracting and corrupting influences is indispensable to the creation and maintenance of the institutions on which the good life for many heavily depends? What if the very existence of a common social endeavor, quite independent of its that endeavor's specification, is crucial to the cohesiveness of the community, and therefore to the structures that sustain the crucial life options of its members? Such theses and their policy implications will inevitably be controversial on their merits, but there is no obvious incompatibility between such positions and essential liberal premises about the nature of political life. The state's task in effectuating core freedoms can thus legtimately be imagmed not as the acknowledgment and implementation of an abstractly deducible set of rights, but as the making of hard political choices that determine the content of rights in a particular society. If 'the right' is dependent on a contingent, political conclusion about 'the good' (or if it is fairly controvertible for other reasons, such as internal ambiguities and tensions), then its valid specifications will vary from political community to political community and from time to time, though not limitlessly. Tustice' will stdl be a transcendent value, but it will have to be reconceived as entailing creation of the appropriate conditions for the individual pursuit, on an acceptably equal basis, of those ends that a collectivity has reasonably decided ought to be pursued. This is not an illiberal standard, but rather one that takes seriously the selfdetermination of peoples as extending to fundamental choices of political, economic, social, and cultural systems (as provided for in numerous authoritative international instruments),l7 notwithstandmg the ontological primacy of the individual and the universality of certain basic principles of human equality. This standard allows that the collective capacity to make fundamental decisions, and to have outside actors acknowledge their status as governing law, has a moral value independent of the justice or injustice of the decisions themselves (albeit a moral l7 See, e.g., Declaration on Principles of Intemational Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res. 2625 24 October 1970 ('Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.'); International Covenant on Civil and Political Rights, 999 United Nations Treap Sm'es (1967) 171, Art. l(1) ('Allpeoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.').

o,

Anti-Sovereigntism, liberal Messianism7and Excesses in the Drive against Impunip

27

value that may be trumped where that capacity is egregiously abused). It is a standard that assigns to statecraft, and therefore to positive law, a moral standmg that deontologcal liberalism tends to repudate. Moreover, whereas the deontology-inspired human rights camp concedes the permissibility of harsh measures only in direct defense of universal, abstractlydeduced rights of the individual, the foregoing approach allows that such measures may reasonably be entertained in defense of a political program that emboQes a debatable and contested conception of human flourishing. Bearers of differing substantive conceptions of a just public order -even those operating from common premises about human d p t y - can be expected to disagree radically on the permksibhty of uses of coercion and force in particular contexts. States tasked with creating and preserving the social conditions that underlie valued ways of life will take such measures as they deem exigent to protect a favorable, or to block an unfavorable, process of social transformation. Those loyal to the project, includmg persons of good faith and sound intelligence, can be expected to participate in these repressive measures pursuant to the prerogatives and dictates of (domestically) lawful authority. Although an appreciation of this plurality of political projects in no way precludes strong censure of such measures (or the ends that animate them), it weighs strongly against the anti-pluralist invocation of universal standards to nullify, retrospectively or extraterritorially, the legal authority underlymg them. Such extravagant assertions of universalism ignore the role that political projects, in all of their contingency, play in securing the bases of human flourishing.

Proliferating Rights, Clashing Duties, and Political Decisions The 'right-good distinction' is not the only source of deontological liberalism's deprecation of the moral status of political decisions. Deontologcal liberalism further tends to posit a set of categorical priorities among universal human interests, emphasizing interests that depend on holding the state at bay (i.e., negative rights connected to negative state duties, such as freedom from arbitrary arrest or from censorship) over interests that depend for their f u l f h e n t on the vigorous exercise of state power to create the needed social conditions (i.e., negative and affmative rights connected to affirmative state duties, such as protection from crime and subversion or provision of adequate food, shelter, health care, and education). Even those deontological liberals most committed to the latter set of interests rule out furthering them in ways that compromise the former set.18 It is not clear that these categorical priorities can be justified. 18 Rawls thus famously posits a 'lexical' priority of his first principle of justice (civil and political liberty) over his second principle (equity of distribution). Rawls, A Theor ofJtlsstice, ybra note 7, at 60-65, 30203. He does, however, condition that priority on the satisfaction of basic material needs. Ibid. at 542-43.

Finnish Yearbook ofIntemationaZlaw (Vol. XII, 2001)

At the core of the human rights movement is the quest to bring about the conditions of a dignified human existence. Human rights thus entail not merely duties to avoid violating human dignity by discrete and direct acts of violence, but further duties affirmatively to protect the right-bearer from violence and from analogous inflictions with similarly dehumanizing effects. Beyond those lie duties to take all necessary measures to secure for all right-bearers (within the limits of what is materially feasible) the conditions that permit human potentialities to be r e h e d . The proliferation of internationally-certified human rights - now encompassing 'first-generation' civil and political rights well beyond inviolabihty of the physical integrity of the person, 'second-generation' economic and social rights, and ' h d generation' collective rights to the minimal conditions of societal flourishingrepresents a series of efforts to correct for the manifest inadequacy of simple negative imperatives. It is currently fashionable to argue, given the patent abuse of arguments to the contrary by tyrannical r e p e s , that there are no systematic clashes among the internationally-recoped nghts. But unless one has a deep-seated (and suprarational) faith in a morally ordered universe in which all virtues are mutually reinforcing, it can hardly be denied that the question of their clash is an empirical one in every given instance, and that reasonable minds will differ on priorities. The argument would not be that civil and political rights interfere with economic and social rights as a general matter (the straw position that is typically posed for refutation), but rather that in a given instance, respect for certain negative rights will unjustifiably block the f u l f h e n t of other vital human interests that can equally be expressed in the language of rights.19 Once again, the deontological error lies in the dismissing of contingency. The more holistically rights claims address human d i p t y , the more inexorably and expansively do they appropriate the space of politics. Invocation of the term % m a n rights' altogether fads to pre-empt political contestation, because competing views of how to prioritize and how to accomplish the posited ends constitute the very core of politics.20 The application of universal principles in real-life situations requires decisions, which political entities are in the position of having to make. These decisions, embodied in positive law, provisionally resolve the question of justice for the purposes of that political community at that time.

19 As will be noted below, f u l f h e n t of human rights is an outcome gauged by the condition of the right-bearer, and ought not to be confused with a very different kind of 'deontological' concern having to do with the moral quality of the agent's acts per se; if the duty to respect rights has categorical priority over the duty to protect or to ensure them, it is for some reason other than concern for human rights as such. 20 Ronald Beiner explores the consequences of this reality for 'rights talk' in What's the Matter with Liberadsm? (University of California Press: Berkeley, 1992) at 80-97.

Anti-Sovere&ntism,LzberalMessianism, and Excesses in the Drive against Imp~nity 29

One can, and should, second-guess those decisions, even from afar. But to treat them as morally insignificant is a serious error. It is this error that antisovereigntism embodies. The error lies not in affirming that there are right answers to questions of justice, nor in denouncing collectivities and individuals who have gotten these answers wrong. It lies rather in treating collectivities as though they have no right to arrive at their own answers, and individuals as though they have no right to implement the answers their collectivities arrive at, unless those answers are deemed -in hindsight or from a distant perspective- to be the right ones. International law's traditional limitations on coercive intervention in the internal affairs of states and on retrospective and extraterritorial prosecutions are rooted, not in moral relativism or skepticism, nor in the sacrifice of the indwidual to the collective, but in a moral appreciation of the role of collectivities in the lives of individuals.

Physical Integrity of the Person, Political Conflict, and Retributive Justice The foregoing discussion argues generally against the invocation of universal rights to nullify sovereign prerogative and positive law. It may seem not to pertain, however, to rights involving the physical integrity of the person, which are precisely the ones that underlie the most familiar recent developments in international criminal law. On the surface, these rights appear to represent something approaching an empirical consensus (at least in the sense that no one dares openly to disavow them), thereby grounding standards of criminal responsibility that are independent of the variables of political order. The supposed consensus appears to render actors chargeable with knowledge of the existence, validity, and applicabdity of these standards, whatever the political context. However robust its pluralism, a decent international order must be committed to ensuring respect for human digmty, and violation of the physical integrity of the person is, it would seem, incompatible with such respect. There is much to be conceded to this view. First, gross and systematic violations of the integnty of the person, of such a nature as to reflect ends that are incompatible with respect for human dgmty (e.g., violence manifestly disproportionate to any plausible beneficent objective, or directed against a particular racial, ethnic, or religious community), contradict the very basis upon which an international order that respects sovereignty considerations is most compellingly justified. To proclaim, for example, 'Hutu Powery (the ideology of the Rwandan genociddires) as an admissible answer to the question of public order would be a grotesque parody of the pro-sovereignty argument advanced above.21 Second, For a chilling account, see Philip Gourevitch, We Wish to Infoorm Yozl that Tomorrow We Will be Killed with Ozlr Families: Ston'esf.om Rwanda (Picador USA: New York, 1998). 21

Finnish Yearbook oflntemational law (Vol. XIT, 2001) as a matter of positive intemational law, many standards regardmg physical integrity of the person provide directly for individual criminal responsibility - in some instances, even without a threshold finding of a pattern of gross violation. Such criminal responsibility attaches irrespective of domestic law or superior orders, and sometimes irrespective of otherwise-applicable immunities and hitations on extraterritorial jurisdiction. Thus, the standards regarding physical integrity of the person unquestionably have some special claim to universality. Nonetheless, it warrants noticing that when abstract propositions are applied to concrete conditions of violent confhct, a meaningful universality of standards is far less empirically evident. Participants on both sides of conflicts typically fight in the name of ends associated with human d i p t y . The d d y sufferings of those denied the requisites of a d p f i e d existence are frequently seen to justify 'bringmg home the cost' of those sufferings to the comfortable and influential. The security of the many is just as frequently seen to depend upon the infliction of immobilizing fear upon the potentially treacherous few. Acts understood to be presumptively wrongful are widely accepted as valid in deterrent retaliation for similar or analogous wrongs supposedly committed by the other side." These rationales are not pathologies of the depraved; they are routinely articulated by informed persons of good faith and sound intelligence. Moreover, denunciations of that whole class of rationales too often emanate from the comfortable sidelines. Where societies experience a breakdown of shared normative premises and institutional processes, partisan considerations take on an urgency not fully anticipated in the calm of the remote assembly chamber or seminar room. That an outside observer roundly condemns, however ingenuously, others' transgressions in defense of their perceived vital interests is little evidence that the observer would exercise forbearance if similarly situated. What appears 'disproportionate' to someone else's cause, however just, frequently appears exigent in the service of one's own. These discomforting realities are, arguably, just as 'universal' as the abstract affmations of the intemational standards in question. Thus, in the context of violent confict, universal standards on the physical integrity of the person have to be seen as at least partly aspirational. Even where international law undisputedly provides the tools for retrospective or extraterritorial prosecution of individuals acting within the scope of an authoritative political decision (whether of a sovereign state or a well-established insurgent movement), such tools should not be used without takmg due account of the plausible hurnandignity-oriented claims of the collective project that those individuals served.

22 For a concise rendering of this argument, see Brad R. Roth, 'Peaceful Transition and Retrospective Justice: Some Reservations. A Response to Juan E. Mendez', 15 Ethics & IntemationalAJairs (2001)4550.

Anti-Sovere&ntism, Lzberal Messianism, and Excesm in the Drive against Impunig

3I

Considerations Neglected in the Drive against Impunity It is ironic that those who are most suspicious of state power end up embracing that quintessential exercise of state power, criminal prosecution, as vindicator of the primacy of the individual. Criminal sanctions, especially where operating on a logic of retribution rather than sequestration of presently dangerous lawbreakers, tend to embody an affirmation of the role of political processes and institutions in shaping and imposing community values - an affirmation in tension with deontological liberalism's stripped-down conception of the moral role of the state. But there is more than irony at stake here. Whde efforts to punish genocihires and major war criminals can hardly be deprecated, much of the drive against impunity fads to take seriously the moral significance of the legal frameworks within which individuals are embedded, and the political projects to which individuals are frequently committed. Three implications arise: (1) If positive law is thought to have moral consequence only to the extent of its comportment with a transcendent natural law, it will be deemed to provide no barrier to legal culpability beyond, perhaps, the incomplete defense of duress. (2) If collective projects are imagined always to be of secondary moral sipficance, loyalty to such a project d never be acknowledged as qualifymg the demands of deontological principle. (3) If retributive justice is emphasized as a moral imperative, it will not be allowed that honor can sometimes be a %her virtue than justice in a world where human well-being depends centrally on the attainment and maintenance of peace, and where the typical peace settlement is a peace of the tainted.

Positive Law, Dualism, and the Nulla Poena Principle Appeals to natural law obscure the fact that disagreement about even the most elemental principles of justice is part of the human condition. As discussed above, positive law performs the essential function of provisionally resolving questions of justice, thereby allowing for the coordination indispensable to a political community's performance of basic tasks. Individuals, quite reasonably, orient their conduct with regard to such enactments as are palpably efficacious and applicable to that conduct. Individuals cannot ordinarily be expected to conform their conduct to the dictates of what Hobbes perspicaciously described as 'a kingdom of the fairies in the darV.23 The principle of nuIIunz crimen et nullapoena sine a'ege bars prosecuting individuals for acts that were not contrary to applicable law when and where committed. This is

Thomas Hobbes, Leuiathan: Pads I and II (first published 1651) (Bobbs-Merrill Co.: Indianapolis, 1958) 257 (part 11, chapter 29).

23

Finnish Yearbook ofInternationalLaw (Vol. XII, 200 l)

a natziral-lawprin@le that acknowledges the moral s&nz;f;cance ofpositive law.24 Observance of t h ~ sprinciple requires not merely that new crimes not be made up expostfacto, but that exculpatory law not be retroactively invalidated. The existence of legal obligations to uphold internationally-recogruzed human rights does not, ipso facto, affect the legal r e p e applicable to individual conduct. Except with respect to the lirmted set of conventions and doctrines establishing criminal liability for violations under color of state authority, international human rights law is b & b g only on states as corporative entities, and is transformed into dwectly applicable standards of indwidual conduct only through the enactments of domestic authorities.25 In the other words, although indvidual states may choose, through constitutional or legislative incorporation of treaties and the customary law of nations, to implement a 'monist' conception of the relationship between domestic and international law, that relationship is otherwise presumed to be 'dualist', with domestic and international law operadng on separate planes. Moreover, for states to adopt international obligations does not entail renunciation of the ultimate authority to violate those obligations for the sake of what they deem, unilaterally, to be the national interest (at whatever cost the international community may duly inflict).26 International obligations do not extingush sovereign prerogative, just as sovereignty in no way precludes obligations that constrain governance in the ordinary course.27 Even in the classic writings of 24 Indeed, the principle of nzlllapoena sine lege is itself embodied in the International Covenant on Civil and Political Rights, sqra note 17, Article 15. 25 For example, in the domestic law of the United States, many treaties, such as the United Nations Charter and the International Covenant on Civil and Political Rights, are considered 'non-selfexecuting'. They bind the United States on the international plane, but they have no direct effect on internal legal oblrgations. See, e.g., Sei Fyii v. State, 38 Cal.2d 718, 242 P.2d 617 (Cal. S.Ct. 1952) (a treaty 'does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing'); US ICCPR Reservations, Understandings, and Declarations, 138 Congre.r.rional Record S4781 (2 April 1992), Declaration 1 (Senate Declaration that the ICCPR's substantive provisions are non-self-executing). 26 Taking again the example of the United States, the internal legal effects of even 'self-executing' treaties are nullified to the extent of subsequent inconsistent Congressional enactments, and probably nullified altogether by Presidential denunciation. Customary international law operates in US law only in the absence of a 'controlling executive or legislative act'. For an instructive summary of the limited status of international law in US law, see Commitee of United States Citixens Living in Nicaragzla v. Reagan, 858 F.2d 929,935-39 (DC Cir. 1988). 27 One way to explain this phenomenon is to assert that international law remains a creature of sovereign states, rather than vice versa. But even if international law is taken to be the juridical foundation of sovereign prerogative, it does not follow that the protections and immunities conferred on states become legally ineffective whenever states violate their legal obligations. And a good thing, too, for if innocence were a condition of inviolability, strong states would always be able to find justifications for intrusions upon weak states. An instructive illustration is the U.S. invocation of alleged Nicaraguan human rights violations to justify the contra war, a move soundly repudiated by the International Court of Justice. Midtay and Paramidtav Activties in and against Nicaragzla (Nicaragua v.

Anti-Sovereigntism, Liberal Messianism, and Excesses in the Drive against Impunig

33

Bodin and Hobbes, sovereignty entds, not freedom from duties as to character of public order, but a monopoly of the last word on what counts as public order.28 As the neo-Bodmian Carl Schmitt explained, sovereignty does not negate the existence of a legal rule; rather, 'sovereign is he who decides on the exception7.29'If individual states no longer have the power to declare the exception . . . then they no longer enjoy the status of states'.30 States are liable for violations of international law, but it does not follow that the violation legalb invalihtes the offending 'act of state'. This difference is sipficant, since individuals are often in the position of acting under a legal regime that violates international law. Executive or legislative acts frequently license subordmate officials and ordinary citizens to engage in forcible or otherwise harmful acts that would, but for such license, be deemed criminal, and these exculpatory enactments may violate the state's international obligations. Assertions of international law to nullify the legal effects of such enactments, thereby to hold state-licensed actors legally responsible to international standards as though those standxds were directly applicable, come into confhct with the principle of nullapoem h e lege.31 The same conclusion applies as well in favor of those who, in exercising a legislative or executive function, undertake the sovereign decision, within the scope of their authority under the domestic regime, to breach the state's corporate obligations. The dnve for 'an end to impunity', however, flurts with the contrary proposition. A case in point is the prosecution of East German border guards and their superiors following the demise of the German Democratic Republic (GDR). United States), ICJ Reports (1986) 14, paras 267-68. Similarly, no international law violations that may have emanated from the US Embassy in Teheran prior to 4 November 1979 could have licensed Iran's violation of the Embassy's immunities. Case Concerning United States Diplomatic and Consuhr StaJ in Teheran (United States v. Iran), ICJ Reports (1980) 3, paras 81-86. 28 Jean Bodin, Six Books of the Commonwealth (first published 1576) (translated by M.J. Tooley, Basil Blackwell: Oxford, 1955) at 30 (book I, chapter 8) (a prince is bound by the covenants he undertakes except when, in his unilateral judgment, 'they cease to satisfy the claims of justice'); Hobbes, Leviathan, szlpra note 23, at 254-55 (chapter 29) (the sovereign is bound by natural law, albeit subject to unilateral interpretation). 29 Carl Schmitt, Political Theology: Four Chapters on the Concqt of Soverezgng (first published 1922) (translated by George Schwab, The MIT Press: Cambridge, Mass., 1985) at 5. 30IM at 11. 31 Where U.S. officials implement enactrnents that violate treaty obhgations, they are acting, not under mere 'color' of sovereign authority (as where the enactment violates the Constitution), but under actzial sovereign authority. The immunity ratione materiae of officials who might be retrospectively or extraterritorially prosecuted for such implementation is supported by -indeed, merges with - the ndapoena principle, which extends further to protect private citizens who collaborate with official acts. See, e.g., Antonio Cassese, 'When May Senior State Officials Be Tried for International Crimes?', 13 European Journal of International Lazv (2002) 853 at 862-63 (immunity ratione materiae is not a procedural bar to jurishction, but a substantive defense available to 'any dejure or defacto state agent'; the 'violation is not legally imputable to [the agent] but to his state').

34

Fimzish Yearbook dlntematiunaI lcaw (Vd Xlf, 200 f )

One of the several alternative theories underlymg these prosecutions in courts of the Federal Republic of Germany (FRG) has been that any use of deadly force to prevent emigration (even where that end could not otherwise be accomplished, and where the victims had defied clear warnings) could be deemed criminal, since GDR laws and practice restricting emigration violated international law and therefore provided no exculpation.32 Article 12 of the International Covenant on Civil and Political Rights, to whch the GDR was a party, does provide for the freedom to leave one's country, subject to national security and public order exceptions that the GDR construed exorbitantly. Conceding that the GDR's anti-emigration policies violated any fair reading of Article 12, one must note that the GDR's internal law cannot be understood as having incorporated Article 12 at all (notwithstanding boilerplate statutory references to international law and human rights), let alone any non-GDR-based reading of it. To the extent that any of the prosecutions hinged on a legal obligation of the defendants to disobey domestic law on the basis of international law, they pierced the veil of sovereignty in a troubling manner. T h s is not to deny that some acts committed within the scope of state authority are, by international treaty and custom, excepted from the immunities that sovereignty ordinarily confers upon those acting in its service. These exceptions are an acknowledgment that certain core moral principles are so indispensable to legality's essential purposes as to transcend ideology, culture, and historical circumstance; violations of those principles are transcendent crimes. But if t h ~ scharacter were to be ascribed to human rights violations generally -i.e., if all positive enactrnents that have authorized harsh measures in the service of perpetuating an illiberal public order were to be retroactively or extraterritorially invalidated - vast numbers of public officials (and private citizens who cooperate with them) would be vulnerable to criminal prosecution, and even more to tort claims, once subject to the jurisdiction of an unfriendly regime. An American need only imagvle the fate of ordinary fellow citizens who participate in governmental policies pertaining to the death penalty, imprisonment, immigration, or homelessness - all subject to international condemnation - to value the immunities that sovereignty ordinarily confers. The reason that disregard of exculpatory positive law frequently seems not to be unfair is the popular assumption that all human beings, whatever their differences on peripheral matters, share core moral intuitions, so that each is chargeable with the knowledge of the injustice of a given act. The opinions we feel most strongly about are the ones we assume to be most broadly shared. That h s Strelet~ Kesder and Krenq v. Germany, 49 International Legal Maten'ah (2001) 773, available at <www.echr.coe.it/Eng/Judgments.htm>(visited 4 August 2002), paras 22, 90-106; see also Peter E. Quint, The Iqbefect Union: Constitutional Structures of German Un$cation (Princeton University Press: Princeton, N.J., 1997) at 200-01. 32

Anti-Sovereigntism, LjberalMessianism, and Excesses in the Drive against Imptdnig

35

assumption is dubious, even in the context of mainstream American culture, is highlighted by George Lakoffs recent book, Moral ~olitics?~ where there is a grand ideologcal or cultural divide, the assumption is more dubious still. On the other hand, if the goal of such prosecutorial practices is to change intuitions, liberal r e p e s that indulge in these practices should acknowledge that they are doing something qualitatively similar to what fibera1 regimes do. The underlymg premises of some of the actual and proposed prosecutions of former officials of East-Central European states such as the GDR amount to these: The particular set of liberal-democratic norms that gained ascendancy in the 1990s are transcendent moral norms. Not only have these norms been everywhere and always correct, but so intuitive that anyone - anywhere and anytime - who has faded to act in accordance with those norms is chargeable with having had constructive knowledge of the norms and their correctness. The law applicable in retrospect to other times and places is the law as it ought to have been, taking due account of these transcendent moral norms. Liberal-democratic principles of legality are furthered, and their reputation enhanced, by holding trials of liberal democracy's foes, in which the nonliberal-democratic laws of other places and times are treated as a nullity. These premises do no credit to the liberal cause. They repudiate - retroactively, no less - the sovereign equality of liberal and non-liberal states that has anchored the international legal system, and more generally the idea of peaceful and respectful accommodation among bearers of opposing conceptions of public order. They criminalize, not merely acts that could be identified as corruptions and excesses w i h n the normative framework of the legal-political order in which they occurred, but acts that exemplify overt normative differences. The B e r h Wall prosecutions, the most famous of all prosecutions of exofficials of the defunct Eastern Bloc r e p e s , bring the issues into stark relief. The post-unification FRG courts resorted to a mixture of justifications for the convictions of leading ex-GDR officials responsible for the border policy -including a facially plausible, though ultimately flawed, readmg of contemporaneous GDR law as crirninalizing the policy decisions in question34- but recourse to natural law figured prominently (along with international human rights George Lakoff, Moral Pohtics: What Conservatives Know that Liberals Don't (University of Chicago Press, 1996). 34 For an analysis of the applicable GDR law, see Julian Rivers, 'The Interpretation and Invalidity of Unjust Laws' in David Dyzenhaus (ed.), Recrajing the Rule of LAW: The Limits of Legal Order (Hart Publishing: Oxford, 1999) at 40-65.

33

36

Finnish Yearbook OfIntemationallaw (Vol. XTIT, 2001)

law) in the mix. Invoking Xadbruch's formula' - the post-World War I1 proposal by legal theorist Gustav Radbruch that Third Reich statutes be retroactively nukfied where 'intolerably inconsistent with justice' - the Federal Constitutional Court held that 'a ground of justification derived from State practice and purporting to allow "border violators" to be lulled must be disregarded as an instance of extreme State inj~stice'.~~ The European Court of Human Rights, despite implicitly admitting that the border policy constituted controlling law from the standpoint of the GDR's legal culture (the policy 'was imposed on all organs of the GDR, including its judicial bo&es7),36unanimously upheld the convictions against the claim of retroactivity. The Court's formal position was that the literal terms of GDR legislation (unglossed by the distinctive, but altogether overt, interpretive approach of 'socialist legality') established the criminality of the border policy, and that the current German courts 'cannot be criticised for applying and interpreting the legal provisions in force at the material time in light of the principles governing a State subject to the rule of law7.37 The European Court thus followed the FRG courts in refusing to read the applicable statutory and constitutional provisions through the lens of the GDR's own legal culture, on the ground that the GDR legal order's flexible (and pre&ctably expedent) approach to interpretation demonstrated the regime's essential lawlessness. But insofar as the defendants' expectations of non-prosecution can be attributed to the socialist-law principle of interpreting provisions teleologically, in light of official ideology and well-publicized policy objectives, rather than to the regime's penchant for crass and covert judicial manipulation, those expectations are precisely the sort that the n d a poena principle exists to protect. The border policy represented a decision that the defendant then-officials had due authority, in accordance with the overt premises of the GDR's functioning system of public order, to make. That the GDR did not function as a rule-of-law state is neither here nor there; what matters is that the GDR's domestic law, read for the meaning that was manifest in its context, provides no basis for condemning the border policy as criminal. 35 Federal Constitutional Court judgment of 24 October 1996, quoted in the decision of the European Court of Human Rights in Strelet~Kessler and Krenq v. Germany, qbra note 32, at para. 22. Note Julian Rivers's assessment that '[tlhe effect of the Court's judgment is to criminalise actions that were merely unjust, not grossly unjust in Radbruch's sense'. Rivers, 'Interpretation and Invalidity', sqra note 34, at 53. 36 StreZet~Keder and finx v. Gemany, ,sqra note 32, at para. 87. 37 Ibid. at para. 81. Such imputation of an anachronistic liberal 'spirit' to the law of a non-liberal regime has been termed 'reinterpretive positivism'. See Andrew Emanuel Tauber, qranny on TriaL The Pohtics of Nat.ural Law and LgaZ Positiviism in the Federal Repubh of G e m a y (unpublished Ph.D. dissertation, Massachusetts Institute of Technology, 1997) at 28-29.

Anti-Sovere&ntism,Liberal Messianh, and Excesses in the Drive against fmpztnity

37

The essential supra-positivism of the decision is thus unmistakable. The Court considered the border policy grossly incompatible with universal human rights, and so made an allowance for the retroactive imputation of crirninality. Although the measures taken to control emigration from the GDR were repugnant, a number of factors weigh against equating repugnance with transcendent crirninality. First, given the structure of the situation, even a benevolently and well run GDR would have been faced with an emigration crisis that could not have been contained without unpleasant measures. Where (i) a poorer country borders a richer one that courts the former's residents, bears familial connections, and poses no cultural or linguistic barriers to entry, and (ii) the poorer country places a heavy burden on the most capable to subsidize the rest, the threat of a debilitating 'brain drain' is foreordained. If free emigration is incompatible with the effort to build socialism under these circumstances, it is not self-evident that morality demands forsaking the latter. Second, although the GDR was not benevolently or well run, going out of business was not an option in the face of geopolitical realities; if the GDR had not maintained a reasonable level of economic and political stability, a renewed and harsh Soviet occupation, not reunification, was the default option. Meanwhile, emigration of the boldest and most capable threatened manifestly to erode the quaky of life in the GDR for those who stayed. The reality of this threat seems to be borne out empirically in studies of the economic and social life of the GDR, preand post-1961?8 Third, people of good faith and reasonable intelhgence supported the GDR for reasons that, however mistaken, were not inherently evil. Indeed, the GDR invoked principles that, in the abstract, had considerable moral appeal. Any suggestion of 'moral equivalenceJbetween the GDR and Third Reich regimes is unsustainable; an ideological mission at odds with individual liberty, however misguded and corruptly implemented, is nothing like multiple genocide and pan-continental aggression. Consequently, to the extent that the shootings were the least drastic means to prevent violations of a law that was, in terms of aggregate compliance, essential to state security - and gven that would-be emigrants knowingly decided to assume the risk - the situation posed, for a loyal GDR servant, a genuine moral quandary.3gIt ceases to appear as a moral quandary only if one retrospectively de-legtimates Laurence H. McFalls, Communism's Colkipse, Democrag's Demise? The Cultural Consequences of the E a t Geman Revoldon (NYU Press: New York, 1995) at 31-35. 39 It is worth noting that from 1993 to 1997, the first four years of a stringent border control regime instituted in Southern California, half again as many people died seeking to enter the United States from Mexico as died seeking to leave East Germany in the twenty-eight years of the Wall's existence; although the former did not involve shootings, it did involve predrctable consequences of deliberate policies. Peter Andreas, 'Borderless Economy, Barricaded Border', 33(3) NACLA q o r t on the Amen'caf (1999) 14 at 17 (citing a University of Houston study putting the four-year death toll of would-be immigrants to the US at 1,185). 38

38

Finnish Yearbook: of International LW (Vol. XIT, 200 1)

loyalty to the political project that the GDR represented. Such retrospective delegitimation virtually defmes the notion of 'victors7justice'. If liberalism has one great superiority over rival political philosophies, it is that liberalism does not presuppose - as have Rousseau, the Communists, fascists, and religious fundamentalists alike - that the answers to questions of public morality would be intuitively obvious, but for the &stortions introduced by partisan interests. In a healthy community, these non-liberals believe, there is almost unanimous agreement regarding what constitutes the common good. Liberahsm, by contrast, rejects this notion. Deontological liberals may seek to make an exception for 'justice' as they understand it. But if, as has been contended above, justice ultimately depends on a broader view of the common good, and what constitutes the common good is inevitably contested even where partisan interests do not distort deliberation, then questions of justice are equally contestable in good faith. What appear as injustices are properly repudiated in the present tense, but retroactive nhfication of those who held the losing view does not comport with liberal values, and is a terrible way to chart a liberal future.

Moral Ambiguities in the Pursuit of Political Ends Even where retroactive lawmaking is genuinely renounced, the drive against 'impunity' tends to be heedless of moral ambigutty. International criminal law reflects the idea that certain acts are wrong under all circumstances. One need not, of course, be a deontologist to accept that it is makes sense to proscribe certain acts generally, and it can reasonably be presumed that most such acts, even when committed by state officials within the scope of their governmental authority, are committed out of heedlessness of human d i p t y . But can it really be said that the vindication of human dignity demands that a given category of act be condemned without regard to the ends that the act was reasonably projected to achieve? Even an emphasis on human rights -in the strong, deontologcal sense of that term does not make such an imperative evident. The word 'deontological' is used in political phdosophy in opposition to 'teleologcal'. In positing inviolable rights as directly deducible from the dignity of the human subject, deontologsts are thought to 'take nghts seriously' in a way that communitarians, utilitarians, and perfectionists do not. However, in the realm of moral philosophy, 'deontology' is opposed to consequentiali ism'.^ There is a superficial similarity between the uses of the term in 40 In A Theor OfJusstice, sqra note 7, at 30, John Rawls was careful to distinguish between the two uses of this term, but did not pursue the question of their relationship. Immanuel Kant is the source of both concepts, and he clearly understood them to be closely related. See Sandel, Limits OfJustice, stcpra note 7, at 4. Human rights scholarship has not, to my knowledge, focused directly on the question, but seems generdy to assume that the two concepts go together.

Anti-Jovere&ntism,Liberal Messianism, and Excesses in the Drive against Impunig

39

the two realms, as here again the emphasis of 'deontology' is on the subject rather than the object, and again the dignity of the human person is stressed. But note that here the agent, not the right-bearer, is the subject; 'agent-centered morality' focuses on duties, not rights. This may not seem important, since rights and duties might appear to be two sides of the same coin, rights gving rise to the very duties that moral deontology exalts; the categorical imperative can be rephrased to demand that the agent not violate another's human rights. In fact, however, the categorical imperative seems insufficient to the task of 'taking rights seriously'. In human rights law, there are four types of duties to which rights give rise: (1) duties to respect (negative rights giving rise to negative duties); (2) duties to protect (negative rights giving rise to affirmative duties); (3) duties to ensure (affirmative rights giving rise to affirmative duties); and (4) duties to promote (negative and affirmative rights giving rise to affirmative duties of a less determinate character).41 Agent-centered morality gives unconditional priority to one type of duty: the duty to respect, or to refrain from violating, nghts. But if our concern is for the right-bearer, rather than for the agent's soul, this priority seems unjustified. In a world already characterized by injustice (or, to put it more dramatically, inhabited by evil), the realization of rights is a consequence, an end to be pursued. The creed of moral deontology is that 'evil shall come into the world, but not through me'. Thus, the moral deontologist cannot be thoroughly committed to the maximal realization of human rights, where this involves the violation of some rights as a means to protect or ensure others. The reahation of human rights is a dstinctively political responsibihty, and the political project is fraught with moral ambiguty. The 'dirty hands' issue is by now well-rehearsed, but it is worth considering a problem along the lines of that posed by the Lon No1 r e p e in Cambodia in the early 1970s (assuming away some of the factual complexities that undermine its value as an illustration). The Lon No1 regime was a human rights-violating r e p e that murdered hundreds, if not thousands, of innocent people in a rationally calculated effort to stay in power. However, when the Lon No1 r e p e fell, it was predctably replaced by the Pol Pot r e p e , which murdered hundreds of thousands, if not d o n s , of people as a matter of state policy, and turned the whole country into a slave labor camp in one of the most grotesque political experiments in human history.42 It is possible, of course, that no amount of ruthlessness could have prevented this outcome, or even that the Lon No1 regime's ruthlessness contributed to it (though one should dscount, in h s regard, arguments underpinned by a supraThese categories are owing to G.J.H. Van Hoof, 'The Legal Nature of Economic, Social, and Cultural Rights: A Rebuttal of Some Traditional Views', in Philip Alston & Katarina Tomasevski (eds.), The Right to Food (Martinus Nijhoff: Boston, 1984) at 97; see also Henry Shue, Basic Rights: SStrbsistence, AflStrence, and US Foreign Pohy (Princeton University Press, 1980) at 35-64 (human rights entail correlative duties of protection and assistance, as well as non-deprivation). 42 See, e.g., Ben Kiernan, The PolPot Regime (Yale University Press: New Haven, 1996). 41

40

Finnish Yearbook ofIntewzationaI Law (Vol. XI& 200 1)

rational faith in a morally ordered universe in which deontological wrongs can never produce morally desirable consequences). But what the example calls into question is the argument that political outcomes, as such, are of insufficient moral weight to justify bad acts.43 It is difficult to maintain that 'taking rights seriously' excludes predicating acts of state on consequentialist rationales. To be sure, human lives ought never to be traded blithely, but it seems equally heedless to dismiss, in the name of human d i p t y , major quahtative and quantitative distinctions in the effects that action or inaction can be projected to have on human collectivities.44 If there is a 'universal' intuition on this topic, it would seem to be that while many acts can be presumptively condemned as heinous, no acts are absolutely excluded where the most vital interests are perceived to be at stake. It need hardly be pointed out that the war crimes prosecuted at Nuremberg and Tokyo did not include the deliberate incineration of hundreds of thousands of innocent people in Hamburg, Dresden, Tokyo, Hiroshxna, and Nagasaki, and the omission cannot be dismissed simply as a product of 'victors' justice'. Even those who condemn the fue-bombings and atomic bombings generally feel compelled to engage seriously with the empirical question of whether these measures were necessary to prevent far worse harms.45 Moreover, even condemnation of the acts seldom crosses the line to vilification of the actors; the scope for good-faith disagreement militates against attributing criminality to those who were in the unenviable position of having to make the decisions. Of course, whereas 'cimbed' folk may incinerate innocent civilians for weighty reasons, it is easily assumed from a distance that 'other7 folk commit analogous acts for frivolous reasons. Recent history has seen the negotiated settlement of numerous struggles for state power, violent on one or both sides, where the essential direction of society was at stake, and where participants in violence were driven by moral conviction. (This is not to deny that much of the violence was just plain thuggery, but even then, there were often moralistic justifications for the recruitment of thugs to accomplish unpleasant, but supposedly necessary, tasks.) Participants in unmediated 43 Even Michael Walzer, a leading champion of the rules of war, concedes that violations are permissible 'when we are face-to-face . . . with a defeat likely to bring disaster to a political community'. Walzer,Jt/st and U y k t Was (Basic Books, Inc.: New York, 1977) at 268. 44 Walzer insists generally to the contrary: 'It is the acknowledgment of rights that puts a stop to such calculations and forces us to realize that the destruction of the innocent, whatever its purposes, is a kind of blasphemy against our deepest moral commitment', ibid, at 262. I would suggest that his recourse to the language of 'blasphemy' helps to demonstrate the insufficiency of his invocation of rights, as the focus shifts from the right-bearer to the agent. On the other hand, he is correct to point out that even a consequentialist should be concerned with preserving, not only life, but also 'our civilization and morality, our collective abhorrence of murder'. Ibid. 45 See, e.g., Walzer, ibid. at 251-68.

Anti-Sovere&ntism, Lzberal Messianism, and Excesses in the Drive against Impunig

41

social conflict are consequentialists, almost by necessity; political actors are expected to take responsibility, not exclusively for their own acts, but for the outcomes that befall their constituents. No armed insurgency or counterinslrgency, however scrupulous, fights under the motto, 'Evil shall come into the world, but not through me'. Consequentialist reasoning has a moral weight that needs to be acknowledged, on the merits as well as in the interest of reconciliation. It is morally as well as strategically appropriate to respect even those who wrongly but ingenuously believed that the vital human interests at stake justified unsavory means, let alone those on the 'right' side (e.g., South African liberation fighters) who may have correctly so believed. None of h s is to deny the imperative of distinguishing between restrained and heedless pursuit of political ends, nor to argue that sincere political motivation properly suffices to immunize atrocious conduct. Rather, it is precisely to insist on the crucial moral distinction between better and worse. A legalistic judgment of whether discrete acts fell within the elements of established prohibitions is very different from an historical judgment of the relative merits and demerits of overall conduct in the face of severe crisis and institutional breakdown. Participants in realworld armed conflicts are broadly vulnerable to criminal prosecution - above all, under the sweeping license of the Convention A p s t Torture46- regardless of whether they and their political projects are properly counted among the better or among the worst. In an international system dependent largely on unilateral implementation of universal standards, the decision of whom to prosecute is hkely to depend more on political preferences or sheer happenstance than on a holistic evaluation of moral desert. The broader the license for prosecution, the greater the risk that devices justified by reference to the wantonly predatory wdl be applied against perpetrators of acts that merely reflect the sad realities of violent social conflict. It is frequently said in response that most people harmed in these conflicts were on neither side, and that too much regard for the perpetrators on both sides slights the victims in the middle. Both of these points, whde creditable in specific cases, are problematic as general propositions. First, in many of the con£licts, large portions of the populations involved perceived themselves to have a stake in the violence, and not always wrongly. It is fanciful to assert that terror is never a 'but-for cause' of the attainment of social justice or public safety, and demonstrably fanciful to assert that o r b a r y people, caught up in unmediated social conflict, do not knowingly and wilhgly 'adopt' the problematic actions taken purportedly on their behalf. This is not to say that victims The Convention confers universal jurisdiction for the prosecution of, inter aka, 'any act by which severe pain or suffering, whether physical or mental, is intentionally inacted on a person for such purposes as . . . intimidating or coercing him . . . with the consent or acquiescence of a . . . person acting in an official capacity'. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (1984), entered into force 26 June 1987. 46

42

Finnish Yearbook OfIntemdtionallazv v o l . XII, 2001)

selected with popular support, or even victims who would have approved a 'preemptive strike' against others, are any less the innocent victims. But there is some reason to question the moral value of a program of retributive justice that presupposes and exalts deontological principles to which relatively few people in the society were, are, or will ever be - truth be told - consistently committed. Second, it is worth pondering why vindicating the dgnrty of the violated rightbearer is thought to depend on inficting pain and ignominy on the agents of the violation. In a morally ordered universe, every wrong suffered is traceable to a wrong committed. This is a comforting thought, but not one that should be credted in a real world of incalculable contingencies and conflicting duties. The urge to restore a phantasmal equilibrium, no less than other fanatical urges, ought to be resisted. One should not, of course, rush to the other extreme and embrace a general immunity for recognized crimes that were committed to maintain or to achieve political power. Even respect for sovereign immunity and for negotiated amnesties can have harmful, even egregious, consequences. But prosecutorial efforts should be evaluated in light of their social costs and benefits in a given case, with due regard for the social contexts within which the acts in question were committed. That evaluation is distorted where what is at stake is imagined to be the vindcation of the transcendent principle of individual human dignity.

The Peace of the Tainted Imagine the scene on the White House lawn in 1993: Yitzhak Rabin and Yasir Arafat appear with BiU Clinton to sign the historic Oslo agreement that then promised to be the first step toward ending the century-long confrontation between Zionism and Palestinian Arab nationalism. Before they can sign the document, armed marshals appear, handcuff the Israeli and Palestinian leaders, and lead them away to j d to await prosecution - Rabin for having authorized the use of torture to suppress the Intifaah while Defense Minister, Arafat for having authorized numerous commando attacks on civilian targets in his long tenure as PLO Chairman. This hypothetical scenario is intended as more than a demonstration of the practical value of diplomatic and Head-of-State immunity ratione personae (which would not have applied to Arafat in any event). It is intended to illustrate the point that peace settlements are by nature incompatible with any thoroughgoing insistence on retributive justice. Even where the applicable law is unambiguous, and where the acts in question are morally indefensible, prosecution presents serious moral, as well as practical, dfficulties. It is not merely that all of the leaders of the two sides in any sustained armed confrontation are likely to have incurred prima facie criminal liability

Anti-Sovereigntism, liberal Messianism, and Excesses in the Drive against Impunip

43

somewhere along the line, so that no one with any standing would be avdable to make and to keep the peace. It is also that any official attempt to impugn those who fought for a cherished cause affronts the self-esteem of those who cherish the cause, with potentially incendiary results. Military victory may permit the victor to use prosecutions as a means to transform the political culture of the vanquished, as at Nuremberg and Tokyo, but where peace depends upon accommodation, it typically requires an agreement to disagree on whether the perpetrators of violence were heroes or villains. The dgmty of both causes, however tainted, must be maintained. (I am reminded of the comment of a Salvadoran guerrilla-turned-civilpolice official, working among colleagues of the opposite background, who spoke of the civil war as having been 'fought with resolve on both sides' - an appropriately obscure and obfuscatory characterization.) Even if only one side is tainted, many of the same considerations remain, and there are often some additional ones besides. Leaders who negotiate a transfer of power to an unarmed opposition would not only be disinclmed to do so if they expected to be prosecuted, but they moreover frequently deserve some very real moral credit for going quietly and for persuading their colleagues to do likewise. (It is likely, for example, that Egon Krenz, the now-incarcerated ex-GDR leader, by helping to block the use of force agasnst demonstrators in Leipzig and then unseating the recalcitrant Erich Honecker in October 1989, prevented much more bloodshed than that which prosecutors have managed to attribute to hirn.)47 Even in the absence of a negotiated amnesty, retrospective prosecutions of these figures can amount to a breach of faith. The common ground between the negotiating parties is not a shared sense of justice, but a shared sense of honor, and even if the party 'in the right' could get away with betraying that shared sense of honor in the name of justice, there would be something morally problematic about doing so. As Adam Michnik put it, 'If I didn't tell [General Czeslaw] Kiszczak at the Roundtable that he would be judged if I came to power, it would be deeply wrong of me to demand it now7.48 Perhaps these factors are not morally compelling in particular contexts. But the point is that contexts count, and that the persons who should make the decisions are those who will have to live with the results. The trends toward universal jurisdiction and against deference to the expressed wishes of legtimate local Some renditions of the events have sought to downplay Krenz's contributions to the peaceful transition. See, e.g., Mary Fulbrook, Anatomy of Dictatorship: Inside the GDR, 1949-1989 (Oxford University Press, 1995) at 256-57 ('the main initiative [for the decision to refrain from using force against the Leipzig demonstrators] appears to have been taken by regional and local functionaries', though the decision was then 'officially ratified by the then security chief Egon Krenz'). 48 Gabor Halmai & Kirn Lane Scheppele, 'Living Well is the Best Revenge', in A. James McAdams (ed.), TransitionalJ~sticeand the h / e o f h in New Democran'es (University of Notre Dame Press: Notre Dame, Ind., 1997) 155 at 179, from Timothy Garten Ash, 'Central Europe: The Present Past', 42 The New York Review ofBooh, l 3 July 1995,21. 47

44

Finnish Yearbook ofInternational Lazv (Vol. X I , 200 I )

authority - both manifested in the Pzkochet case - are therefore deeply troublmg. That the Pinochet prosecution itself may have had salutory long-term effects on Chilean political life is not sufficiently reassuring. No mechanism exists in the international system to hold the exercise of universal jurisdiction to the demands of sound moral or political judgment; political figures who have on balance averted more harm than they have caused and who continue to play constructive roles in their countries' paths to reconchation are no less vulnerable than the irredeemable and the obstructionist. Where a peace settlement or a negotiated transition has given rise to a reasonable expectation that bygones will be treated as bygones, any revisiting of h s question is a roll of the dice. When outside actors take it upon themselves to revisit these questions without the consent of the state that has undergone transition, they should be told that the dice are not theirs to roll.

Conclusion In the present period of liberal triumphahsm, human nghts advocates are tempted to regard their cherished precepts as transcendent truths. The moral standmg of the individual is exalted over that of the collective, and universal standards are asserted as trumps over the decisions of political actors taken in the name of particular communities and local causes. The tangible consequences include a new emphasis on international criminal law and universal jurisdiction, and a jurisprudence of retrospective justice that disparages the irnmunities once conferred by positive law and acts of state. And indeed, it is frequently difficult to resist joining the cheering section, especially in cases that engage one's political sympathies; the defendants are typically recalcitrant figures, who continue to insist that their end justified all means, and their victims bear witness to the pain that such attitudes made possible. Yet it is a mistake to conclude that the tradttional legal and political impedunents to retrospective retributive justice are altogether without moral justification. The state is a collective project indispensable to the vital interests of individuals, and it d inevitably address those interests in accordance with such particular and contestable conceptions of those needs as prevail in particular political communities at particular historical moments. In so doing, it wdl consistently employ coercion to resolve collective action problems, and d frequently employ violence to protect against perceived threats to the prevailing conception of public order (as wdl militant opponents of that prevailing conception, inspired by their own perception of vital human interests). It would be comforting to believe that standards of q h t conduct transcend the particularity and contingency of such political enterprises. But apart from the

Anti-Sovereigntism, Liberal Messiranism, and Excesses in the Drive against Impuni~ 45

limited list of crimes specified with the empirical assent of the entire international community, genuinely universal standards are elusive. They are so because radical disagreement about justice is, at least for the time being, an ineradicable condition of human existence. Political life is, as Talmon put it, 'a perpetual and never resolved crisis', and efforts to posit a once-and-for-all resolution of that crisis cannot help but lead to extremism and a distortion of morality. Over time, the international legal system has made substantial progress in setting boundaries to the conduct that it will abide, and in establishing mechanisms of retributive justice to reinforce those boundaries. Notwithstandmg limitations imposed by political realities, these mechanisms, judiciously managed, may be of sipficant use in strengthening the global commitment to combating genocide, crimes against humanity, and gross and systematic violations of the laws and customs of war. But continued broadening of the scope of the effort will not improve the effectiveness of international legal strictures, and a failure to observe limits to retrospective and extraterritorial prosecution may, indeed, produce a backlash against worthy international institutions. The anti-sovereigntist approach, predicated on the existence of transcendent universal truths, credits neither positive law, moral ambiguity, nor honor in its moral calculus. It seeks to ti-ump the context-driven decisions of political entities with everywhere-and-always-applicable legal standards. The project is not a promising one, from either a pragmatic or a moral standpoint. Efforts to obliterate the protective boundaries of political community, thereby to subject participants in political struggle to transnational implementation of transcendent standards, will not improve justice. They can, however, undermine peace.

This page intentionally left blank

Universal Jurisdiction: Problems and Prospects of Externalizing Justice Chandra Lekha Sriram*

Introduction This article posits that there has been an increasing externalization of justice over the past five or so years, and that it is likely to continue in coming years. Such externalization, or doing justice elsewhere, has taken the form of ad hoc international tribunals and the exercise of universal jurisdction, and wdl eventually extend to the work of the Intemational Criminal Court (ICC). There is good reason to celebrate actions that help to bring criminals to justice, and to end impunity.' However, this article sounds a note of caution, particularly with regard to the exercise of universal jurisdiction. While concerns have been raised elsewhere with regard to the use of external judicial processes, the exercise of universal jurisdiction may be of greater concern than the application of international cdminal law through institutions such as the ad hoc criminal tribunals or the recently established

* Senior Associate, International Peace Academy. Original research for this paper was supported by the

Princeton Project on Universal Jurisdiction. Completion of the paper was enabled by funding from the Ford and MacArthur Foundations to the International Peace Academy's Peacebuilding: Issues and Responses research project. The author is grateful for excellent comments and editorial insights from Brad R. Roth, Jamie Mayerfeld, and Amy Ross. 1 Some of these virtues are articulated with reference to the ICC in Jamie Mayerfeld, 'Who Shall Be Judge? The United States, the International Criminal Court, and the Global Enforcement of Human Rights', paper presented at the annual conference of the Law and Society Association (Budapest, 2001), and Meyerfeld, T h e Mutual Dependence of External and Internal Justice: Understanding the Role of the International Criminal Court', in this volume. For the case for the superiority in some instances of international to national proceedings, see Antonio Cassese, 'Reflections on International Criminal Justice', 61 The Modem Law Review (January 1998) 1-10. O n the growing literature on international criminal justice, see Rachel Kerr, 'Operational Justice: The Reality of War Crimes Prosecutions in the International Criminal Tribunal for the Former Yugoslavia', 5 International Joumal of H m a n Rzgbts (Winter 2001) 110-122. For a helpful critique of both the extreme legahst and extreme pragmatist positions towards international justice, see Jack Snyder and Leslie Vijnarnuri, 'Principle and Pragmatism in Strategies of International Justice', (unpublished ms., 2002, on file with current author).

Finnish Yearbook Offntemutionull a w (Vol XII, 220 l )

International Criminal C o ~ r tI. suggest ~ that h s is the case for two reasons: it may not take sufficient account of local needs, and by taking place at a great distance from the locus of the crimes, it may fail to serve many of the putative purposes of prosecution. This paper addresses the potential ramifications for transitional societies of the use of universal jurisdiction, asking whether it serves the needs of these societies, and whether there are unintended adverse effects of its usage. I suggest that the impact may be harmful precisely because the purpose of universal jurisdiction is not explicitly to serve the needs of the society/nation affected by the crime. Two most frequently cited justifications for the use of universal jurisdiction point to the normative interests, and supporting pragmatic considerations, of the international community. Reference is not made, then, to the needs of transitional societies at all. Budding on previous work that develops some implications of several strands of political theory for normative arguments about transitional justice, I will seek to articulate potentially important normative goals that may be sought in addressing accountabhty in transition. I d then turn to practical considerations of peacebddmg and reconciliation, which build on these normative concerns, but which may be at odds with the rationales for the use of universal jurisdtction. I argue that there are significant risks posed by externalization of justice and in particular the exercise of universal jurisdiction, and that whde it may occasionally be of uthty, international actors should not view it as a panacea, but r e c o p e that each society may need to respond to the legacy of serious human rights violations and other abuses, Two key arguments are made to underpin the application of universal jurisdtction, both of which address the needs and interests of the international community. One version depends upon an account of international moralitycertain crimes are so heinous that they affect all of mankind, and thus deserve to be punished. A related version, in essence the practical underpinning of the fust, treats universality as a procedural convenience that addresses the practical difficulties of addressing crimes that are seen as illegal around the world. m e both of these are vahd rationales? and need to be articulated in order to surmount objections based

2 However, Madeline Morris raises concerns about the impact of the ICC on non-party states in this issue in Morris, T h e Disturbing Democratic Defect of the International Criminal Court', in this volume, and in Morris, '%h Crimes and Misconceptions: The ICC and Non-Party States', 64 LAW and Conteqbora7y Probem (Winter 2001) 13-67. 3 They may not be consistent because interest in pursuing normative goals may not be completely congruent with the choice to act and overcome sovereignty, where the exercise of universal jurisdiction then offers procedural convenience.

UniversalJum'sdiction: Problems and Pro~pectsofExternali@zgJustice

upon sovereignty, they do not speak to the needs and interests of the state or society where the atrocities occurred, or the needs of the victirns.4 Nations in transition face numerous challenges, normative and practical. Drawing upon previous theoretical work on transitional justice, I u&se three broad strands of political theory to articulate the myriad goals and interests at stake in transition. Each of these literatures is vast, complex, and contains numerous debates; I offer somewhat stylised summaries for the sake of drawing out key insights. T h ~ approach s is not, however, meant to imply that each 'theory' presented here is monolithic, but rather for analytic purposes to simplify and cull lessons only for the questions at hand. Buildmg upon key elements in the literatures of utditarianism, deontologcal liberalism, and communitarianism, one can identify goals ranging from stability to reconciliation to satisfaction of the victims to doing justice, some of which are complementary, some not. Some responses, such as truth commissions or prosecutions, satisfy some goals, and not others. Clearly, there is no room for a one-size-fits-all prescription; what is needed is a context and societyspecific approach. I do not argue that it is never appropriate to do justice 'elsewhere7 or to exercise universal jurisdiction.5 Externhing prosecution may at times be the only solution where a state or society is unwdhg or unable to come to terms with the past; amnesties may have precluded legal action domestically, or the state may lack the technical capacity to act.6 However, there is a serious risk that solutions that speak first to the interests of the international community at large will fail to take account of the goals articulated above. This may be most true in the context of universal jurisdiction, where the prosecuting state has no territorial or other nexus to the offense, and thus may be particularly insensitive to the needs of the territorial state, or worse, have its own biased agenda. Finally, I will speculate briefly on the implications of this analysis for other forms of 'externalization' such as the ICC and the tribunals.

4 O n the broad risks of conducting trials that do not take account of the local context, see Mark A. Drumbl, 'Juridical and Jurisdictional Disconnects', in this volume. 5 For a vehement objection to the exercise of universal jurisdiction, see Henry Kissinger, 'The Pitfalls of Universal Jurisdiction', 80 Forezgn A@rs (July/August 2001) 86-96. For a response, see Kenneth Roth, 'The Case for Universal Jurisdiction', 80 Fomgn A@rs (September/October 2001) 150-154. 6 Such amnesties run counter to the 'stated purpose of international humanitarian law'. See Bruno Sirnma and Andreas L. Paulus, 'The Responsibility of Individuals for Human Rghts Abuses in Internal Conflicts: a Positivist View', 93 American Jot/maI of Intemationai Law (1999) 314-315. See, on the complicated relationship between courts and post-conflict peacebuilding, and a reflection on the role that international tribunals can play, Jennifer Widner, 'Courts and Democracy in Postconflict Transitions: A Social Scientist's Perspective on the African Case', 95 American Jot/maI ofIntemationalLaw (2001) 64-75.

50

Finnish Yearbook OfIntemationaIlaw (Vol. XII, 2001)

Universal jurisdiction -the international community and domestic crimes' What is universal jurisdiction? 'Under the principle of universal jurisdiction a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.'g It can be applied only a very lirmted number of crimes. These include war crimes, crimes against humanity, genocide, and torture; it is sometimes said to include slavery and for historical reasons encompasses piracy. The cases brought against Augusto Pinochet Ugarte in Spain and the case filed against Anel Sharon in Belgmm are only the most famous examples of the use of universal jurisdiction to seek to obtain custody of a defendant for crimes committed far from the nation and court seeking to try him or her.9

Universal jurisdiction and national sovereignty: a delicate balance It is important to recogrue that the exercise of universal jurisdiction may constitute a significant challenge to national sovereignty and may constitute a deviation from the principle, enshrined in Article 2(7) of the UN Charter, of non-interference in the internal affairs of states. Jurisdiction has historically been closely tied to territorial

7 A comprehensive overview of the history, rationale, and contemporary application of universal jurisdiction is presented in the papers in the forthcoming volume developed by the Princeton Project on Universal Jurisdiction, edited by Stephen J. Macedo, on file with current author. Hereafter 'Princeton papers 2001'. See also The Princeton Prinniles on UniversalJarisdiction (Princeton University Program in Law and Public Affairs: Princeton, New Jersey, 2001). 8 International Law Association, Committee on International Human Qhts Law and Practice, Final &port on the Exercise of UniversalJurisdiction in Re.pect of Gross H m a n Rzghts Ofenses (2000), at 2. O n the infringement upon sovereignty, see Brad R. Roth, 'Liberalism, Anti-Sovereigntism and Excesses in the Drive Agmst Impunity', paper presented at the annual conference of the Law and Society Association (Budapest, 2001). See also Maria Luisa Bartolomei, 'Universal Jurisdiction versus National Sovereignty-Implementing Human Q h t s in a Global World-Some examples from Latin America', paper presented at the annual conference of the Law and Society Association (Budapest, 2001). 9 For a broad survey of recent cases, see Chandra Lekha Sriram, 'Contemporary practice of universal jurisdiction: disjointed and disparate, yet developing', 6 International Journal of H m a n Rzghts (Fall 2002) 49-76. The Belgian case against Sharon was dropped on the grounds that a case could only be carried out against persons found on Belgian territory. War Crimes Charges Against Sharon Dropped', The New York Times online (26 June 2002), at <www.nytunes.com> (visited 17 August 2002); 'Belgian court ruling throws doubt on Sharon trial', Ha'aretx (16 April 2002)' at <www.haaretzdaily.com/hasen/> (visited 17 August 2002).

UniversalJum'sdiction: Problem and Prospects ofExtemali@ngJustice

51

sovereignty, with quite limited exceptions for extraterritorial application.10 With the exception of universal jurisdiction, extraterritorial application of jurisdiction has tended to require a nexus with the state seeking to hear a case. There are four other commonly cited bases for extraterritorial jurisdiction: territorial, basing jurisdiction upon the place where the offence was committed or had its effects; national, based upon the nationahty of the offender; protective, based upon injury to the national interest; and passive personal, based upon the nationality of the victim.11 Limitations upon extraterritorial jurisdiction derive from respect for sovereignty; they are made in large part to avoid jurisdictional conflicts and to ensure consistency and predictability. Infringement upon sovereign powers is not taken lightly in intemational law. The care taken not to interfere unduly in the internal affairs of states remains equally important in times of transition, but the exercise of universal jurisdiction to prosecute a state's former abusers far from the state itself may run the risk of fading to take that into account.12 This, I argue, is because the dual rationales offered for universal jurisdiction advert to the needs of the intemational community rather than the needs of the society from whence a defendant is plucked. I do not argue that this means that such application is never appropriate, b i t that a great deal of care must be taken in the use of universal jurisdiction.

Why universal jurisdiction? Two bases for universal jurisdiction have generally been offered, which do not appear to be perfectly consistent, though the second is frequently offered in service of the first.13 The first is that core values and overriding interests of the international community exist that may transcend sovereignty. The second is that for pragmatic reasons the international community may need an enforcement mechanism that can '0 For a fuller articulation of the relationship between sovereignty and the jurisdictional powers to prescribe, adjudicate, and enforce, see M. Cherif Bassiouni, 'Universal Jurisdiction in Historical Perspective: Universal Jurisdiction Theory and Practice from Piracy Prosecutions to the Present', in Princeton papers 2001, sqra note 7. See also Ellen S. Podgor. 'Extraterritorial Criminal Jurisdiction: Replacing 'Objective Territoriality' with 'Defensive Territoriality", paper presented at the annual conference of the Law and Society Association (Vancouver, 2002). l1 United States v. Yanis, US District Coua District of Columbia, 1988, 681 F. Supp. 896, Pretrial Memorandum Order No. 4; see generally Thomas M. Franck and Michael J. Glennon, Foreign Rehtions and National Semn'g Law: Cases, Maten'ah, and Simalations, (2nd edn, West Publishing Co.: St. Paul, MN, 1993) 212-215. '2 This is a weaker form of the objection raised by some of the British Law Lords in the h s t Pinochet case, that the extradition requested would intrude upon the state's discretion to manage its transitional process. See the excellent discussion in Nehal Bhuta, 'Justice without borders? Prosecuting General Pinochet', 20 Melbome Univerxig Lazv Reuiew (1999) <www.austlii.edu.au/au/joumals/MULR/1999/ 20.h t m b (visited 16 August 2002). '3 See Anne-Marie Slaughter, 'Defining the Limits: Universal Jurisdiction and National Courts', in Princeton papers 2001, sqra note 7, and Bassiouni, 'Universal Jurisdiction in Historical Perspective' sqra note 10.

Finnish Yearbook ofInternational lQw v o l . XII; 200 I )

occasionally override sovereignty. It is beyond the scope of this paper to analyse these two positions in detail; rather what is worth recognizing is that both rationales advert to the interests of the international community, making no reference to the interests of the state where crimes occurred.14 The concern is either to protect a set of normative goals and interests held by the international community, or, for the sake of convenience, to allow the international community to act in the absence of action by the relevant state (and not necessarily with the concerns of the state/society as the uppermost consideration). Certainly, given the narrow scope of crimes for which universal jurisdiction can be used, and the heinousness of those crimes, such international interests, normative and pragmatic, cannot be denied. However, given that universal jurisdction WIU be used in lieu of domestic legal proceedmgs, and may overcome domestic political pacts, amnesties, etc., it is worth seriously takmg into account what the ramifications of this may be. What is required, then, is a consideration of the needs of transitional societies, and the normative underpinnings supporting prosecutions or lesser forms of accountability.

Justice after transition- what is at stake normatively? There is a vast and expanding literature that addresses the choices of transition, which I wdl not address in great detail in this essay, but will summarize in the next section. I have argued elsewhere that what is needed before engaging in debates about what modes of response to atrocities are appropriate -amnesty, truth commission, lustration, prosecution- is a consideration of what is at stake normatively in choices about transition. Such an examination makes clear the importance of national decisions with regard to what is best for society. By this I do not mean simply elite pacts, in whch choices are made for the society, often by perpetrators, but a serious consideration by a gven society with regard to what is best for it. In the heat of dscussions about accountabllrty, such considerations may be lost; when decisions are taken from afar, they may be ignored altogether. In this section, I derive a series of normative considerations from three strands of political theory -utilitarianism, deontological liberahm, and communitarianism.15 Such considerations lead not to simple one-size-fits-all policy prescriptions, but a more 14 Bhuta frames the tension well: 'By deeming systematic human rights violations to be crimes which threaten world order, concepts such asjw cogens crimes and universal jurisdiction exemplify attempts to place human dignity at the apex of the legal order's hierarchy of values . . . Nevertheless the tension between the "law of peoples" and the traditional rights of states remains unresolved in practice.' Bhuta, 'Justice without Borders?', sz/pra note 12. 15 Chandra Sriram, 'Truth Commissions and Political Theory: Tough Moral Choices in Transitional Situations', 18 NetherhndFQarster- o f H m a n Rzghts (December 2000) 471-492.

UniveralJum'sdiction: Problems and Prospects ofExternali@ng Justice

53

nuanced understanding of what is at stake in these choices, and recognition of the uniqueness of each transitional context. It has not generally been articulated in h s way, but implicit in the tussle between justice and peace is the battle between a form of the categorical imperative and consequentialism. We may seek, for the sake of some 'greater good' such as peace, to h t or halt all prosecutions, but h s undoubtedly comes at a cost; alternatively, in pursuit of the greater good of reconhtion and social peace, there may be a need to pursue accountabhty, but at a price. It is worth s p e h g out more clearly what is at stake in each choice about accountabhty for a society. I present here very briefly an ideal-type summary of each philosophical position, and o u h e the positions for and against extensive prosecution of offenders that each theory would present.

Utilitarianism Underpinning many of the arguments for a lessened emphasis on accountability is a variant. of utilitarianism. Such an argument suggests that in order to prevent the greater harm of an unstable polity or renewed fighting, the quest for an unattainable justice should be abandoned; less frequently heard are explicitly utilitarian claims about deterrence, or satisfaction for victims in seeing justice done. This section briefly addresses the implications of utilitarian theory for practice in this case. Utilitarianism, (drawing here on the work of Bentharn, Austin, and Mill), variously formulated, rates more highly that which tends to increase the aggregate well-being.16 This would mean that justice only has merit if it is has utility, so defined.17 This makes punishment difficult to justify: its utility is minimal unless it acts as a deterrent, or unless the satisfaction felt by the victim in revenge is sufficiently large.18 Thus, there may be utilitarian support for pardons where prosecutions or other mechanisms for accountability would be likely to do more harm.lVn the transitional context, it may follow that punishment serves no purpose, while the greater good of reconciliation and social peace may demand abandonment of prosecutions. 20

16 See especially the pieces reprinted in John Stuart Mill et al., Utiltan'anism-On L i b e r p E s s g on Be~tham(edited with an introduction by Mary Warnock, Meridian: New York, 1962):John Austin, 'The Province of Jurisprudence Determined', 322-342; Jeremy Bentharn, 'An Introduction to the Principles of Morals and Legislation', 33-77; and John Stuart Mill, 'Utilitarianism', 251-321. 17 Mill, Utiktan'aniism,ibid., at 296-315. 18 Kathleen Dean Moore, Pardons: Justice, Merg, and the Pnblic Interest (Oxford University Press: New York, 1989) at 37 raises this point. l 9 Ibid., at 40-41. 20 Agnes Heller, T h e Limits to Natural Law and the Paradox of Good and Evil', in Stephen Shute and Susan Hurley (eds.), On Hmvan Rzghts: The O$ordAmnesg Lectares 1993 (Basic Books: New York, 1993) at 161.

Finnish Yearbook ofInternational l?lu (VoL XII, 200 /)

54

Deontological theories and rights-centered theories I treat deontological and rights-centered theories as sufficiently overlapping to be considered together here - their implications for accountabhty are s d a r . This is not, however, to imply that they are equivalent, or that, say, the arguments of Rawls and Kant are generally aligned. Deontological liberalism,21 bdding on Kant and most famously articulated by John Rawls and Ronald Dworkin, posits the priority of the right over the good.22 Kant's categorical imperative insists that one must act according to principle, let the consequences be what they mayY.23Thus in contrast to uthtarians, deontological liberals hold that a moral judgment should be made not with reference to some collective uthty, but on the basis of right principles. Rawls thus lunits the legtimate political claims that can be premised on the pursuit of particular ends (such as maxirnization of aggregate well-being) to those conforming to independent and 'prior' standards of right and justice.24 For deontological liberalism, then, simply balancing harms and goods is insufficient. Rather, one must examine underlying principles, and act according to what is just. Acting thus, one is likely to emphasize the importance of punishing wrongdoers, and virdcating the rights of victims, over an amorphous greater g00d.25 However, to gve the notions of justice here further form, an examination of Kant's emphasis on rights is now necessary. I (visited 16 August 2002). 104 Chandra Lekha Sriram, 'Beyond the Famous Cases' (an unpublished manuscript on file with current author). Bhuta, 'Justice without Borders?, supra note 12, also raises this as a potential objection. 99

100

Finnish Yearbook of lntemational lazv (V-oL XII, 200 l ) formally exist on the exercise of universal jurisdiction, the use of the principle of complementarity would be most appropriate. That principle is built into the statute of the International Criminal Court (whereas the ICTR can request that national courts defer to its jurisdiction).l05 There is currently nothing to prevent external national courts from asserting primacy over local national courts, with the ramifications for the home society detailed above. Greater, and more formalized, limitations upon the range of assertion of universal juris&ction ought to be generated.loWtherwise, there is a risk that increasingly, resources d flow to external procedures that do not address some of the most salient needs of transitional societies.

105 See Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF. 183/9, reprinted in 37 International Legal Materials (1998) 999; Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Annex to the SC Res. 955,8 November 1994, reprinted in 33 IntcrnationalLegalMaterials(1994) 1602. 106 The ICJ has recently indicated one limitation, that of foreign minister immunity, in the Care Concerning the Arrest Warrant of I I April ZOO0 (Democratic Rt$wbdc of the Congo v. Belgizrm) (14 February 2002), ICJ, General List no. 121 <www.icj-cij.org> (visited 17 August 2002). On some criteria for resolving jurisdictional disputes, see Princeton Principles, szcpra note 7, principle 8.

The Mutual Dependence of External and Internal Justice: The Democratic Achievement of the International Criminal Court Jarnie Mayerfeld*

The externalization of justice -the use of foreign and international courts to prosecute human rights crimes after the breakdown of domestic justice - has been criticized on the grounds that it is too detached from domestic legal and political processes. I shall challenge this view from two directions. First, I shall argue that the creation of a supplemental international regime of extemal justice is a morally necessary step. Second, I shall argue that external justice and internal justice are closely connected, and that both stand in need of each other. The avdabhty of external justice promotes national democracy, while national democracy guards the integrity of extemal justice. My focus d be on the International Criminal Court, which, as I shall argue, avoids many of the defects associated with the hitherto existing forms of external justice - the assertion of universal jurisdction by national courts and the creation of ad hoc tribunals by the UN Security Council - and which is best understood as a partnership between a transnational community of human rights advocates and national governments committed to the defense of human rights. To construe the Court merely as a form of imposing justice from the top down misunderstands its real significance, and such a construal, taken too much to heart, could end up damaging the Court's value and effectiveness.

* Associate Professor of Political Science, University of Washington. This paper could never have been written if I had not had the great fortune to receive a Human Rtghts Teaching Fellowship from Columbia Law School in the spring of 2000. My thanks to the Human Q h t s Institute for providing the experience, as well as to Josi Alvarez, Arturo C a r d o , Jack Greenberg, Louis Henkin, Gerald Neuman, Catherine Powell, and Abdul Tejan-Cole for making it so rewarding. For helpful comments on earlier drafts I wish to thank JosC Alvarez, Stephen Hanson, Beth Harris, Ran Hirschl, Elizabeth Kier, Peter Mack, Amy Ross, Brad Roth, Leila Sadat, and Chandra Sriram. My thanks also to Jayme Ribaudo for invaluable research assistance.

72

Finnish Yearbook OfliztemationaLLw (Vol. X f f ,2001)

Why Human Rights Demand International Protection Human rights are both a moral and a political concept. As a moral concept, they remind us that the fundamental interests and moral status of every human being imply both (1) a set of moral permissions allowing one to act in certain ways and (2) a set of duties requiring other people to treat one in certain ways. But among the duties owed to one by others is the duty to organize or coordinate their behavior in suitably helpful ways. Human rights imply the need for certain kinds of social institutions, and that is why they are a political, not just a moral, concept. This point has been well understood at least since the 17th century, when the classic social contract theorists argued that human rights entitle their bearers to institutional protections. The institution that the social contract theorists had in mind was the nation state, which could protect individuals from each other, but could also, of course, violate human rights on a much larger scale. To guard against this danger, Locke argued that the only appropriate kind of state was a representative democracy, in whch the enforcement of human rights was entrusted to 'collective bodies of men' properly dedicated to upholdmg the law of nature.' But human rights are not adequately fulfilled if we entrust their protection to the nation state alone. Too many nation states do a poor job of upholding human rights. Sometimes they fad because of a lack of capacity, as for example when a state has too few resources to guarantee the subsistence rights of its citizens, or to bald a competent and independent judiciary. And all too often they fad from a lack of d many states violate rights as a matter of deliberate policy. International institutions are needed to correct the failures of national ones - for example, to compensate for the resource deficiencies of poor states, or to bring pressure to bear on (and if necessary depose) repressive regmes. The moral principle is well captured in the Universal Declaration of Human Rights, whose 28th Article proclaims, 'Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be M y realized'. Recogmtion that the f u l f h e n t of human rights is a global and not just a national responsibilrty has spurred the effort, since World War 11, to create an effective international r e p e for their protection. The Universal Declaration, adopted by the United Nations in 1948, has been the manifesto of t h ~ smovement. It serves as a moral benchmark for all governments and a summons to international 1 John Locke, Second Treatise ofGovernment (fust published 1690) (edited with an introduction by Thomas P. Peardon, Prentice Hall: New Jersey, 1997) at para. 94. I join those who view Locke's argument as democratic in its premises and implications. For a contrary reading of Locke, see C. B. Macpherson, The Politiai The07 of Possessive Indviduadm (Oxford University Press, 1962). For criticisms of Macpherson, see Richard Ashcraft, Lacke's Two Treatises of Government (Men & Unwin: London, 1987); and Jack Donnelly, UniversalH m a n Rights in Theoy and Practice (Comell University Press: Ithaca, New York, 1989), ch. 5.

The Mutual Dependence ofExtemal and Internal Justice

73

action on behalf of human rights, calling in its Preamble for 'progressive measures, national and international, to secure their universal and effective recogrution and observance'. A growing number of regional and global agreements bind member states to the respect of human rights at home and to cooperative schemes for their transnational promotion. The primary function of international human rights institutions is to strengthen, not replace, protections at the domestic level. Monitoring bodes like the Human Rights Committee advise governments how domestic protections can be improved; regional courts like the European Court of Human Rtghts issue such instructions as legally binding judgments. The UN Security Council, though not a human rights body per se, may chect and even force recalcitrant governments to halt gross violations of human rights when such violations are deemed a threat to international peace and security. In one way or another, these organizations are empowered to correct the abusive or neglectful policies of states. Governments committed to human rights have reason to welcome such interventions. Whether they change policy in response to international correction, or in the attempt to forestall such correction in the first place, governments are guided toward the more reliable protection of human rights. When international organizations reinforce national protections of human rights, they recapitulate a domestic process of institutional reinforcement whose importance is well understood. The secure enjoyment of human rights within any society depends on the presence of multiple overlapping protections. The principle is emphasized in the major human rights declarations, which always demand, in addtion to a list of prirnary entitlements, the protection of those entitlements and the protection of those very protections. The Universal Declaration of Human Rights asserts not only (among other primary entitlements) 'the right to life, liberty, and security of person' (Art. 3) but also the right to 'equal protection of the law' and 'equal protection against any discrimination in violation of this Declaration' (Art. 7), the 'right to an effective remedy by the competent national tribunals for acts violating the fundamental nghts granted [to one] by the constitution or by law' (Art. S), and the right 'to a fair and public hearing by an independent and impartial tribunal, in the determination of [one's] rights and obligations' (Art. 10). Democracy itself may be understood as the institutional arrangement whereby the people are best positioned to monitor and ensure the continued protection of their human rights. This understanding may furnish the strongest ground for claiming that democracy is a human right. It is significant that protections of primary entitlements are r e c o p e d as human rights in themselves, not just as means to the fulfillment of human rights. To leave fundamental entitlements without protection is to leave persons exposed and thus to harm their digmty. Human digruty is not adequately respected unless the protection of fundamental entitlements may be demanded as a matter of right. Our rights include the protection of our rights.

74

Finnisb Yearbook of International LW (Vol. XII, 200 1)

The most crucial protections are those erected against the power of the state. Precisely because the state is authorized to use force in the punishment of criminals, there is a need to b d d a strong bulwark of defenses against the misuse of its police powers. It is appropriate that the International Covenant on Civil and Political Rights (following the cue of the U.S. Bill of Rights) devotes detailed provisions to the rights of criminal defendants. The primary entitlements are the presumption of innocence and the prohibition on cruel and degrading punishment, but extended attention is gven to an elaborate network of safeguards necessary to protect these entitlements. These safeguards include the right to a speedy and public trial before a fair and competent tribunal, defense counsel of one's choosing, cross examination of witnesses, appeal of conviction, and habeas corpus procedures. The redundant character of these protections may try the patience of some citizens, but their very redundancy is integral to the idea of due process. A large package of overlapping protections is needed because any smaller package could fad. It is a crucial feature of this arrangement that hlgher-level protections improve the effectiveness of lowerlevel protections. Police may be trained to respect the due process rights of criminal suspects, but even so they are much less likely to infringe these rights when they know that suspects wdl have access to competent counsel, are protected by habeas corpus rules, and can appeal convictions. Similarly, public officials are less likely to abuse their power when they must anticipate the judgment of a free press and an independent legislature. Left to itself, however, a national system of human rights protections is fragde, because the withdrawal of higher-level protections tends to lead very quickly to the collapse of lower-level protections. Dissolve the legislature, muzzle the press, or intimidate judges, and ordmary people soon find themselves with few or no defenses against abusive agents of the state. With a few deft strokes, an authoritarian leadership can dismantle the entire network of overlapping protections so carefully elaborated in the Universal Declaration and the International Covenant on Civil and Political Rights. From the standpoint of human rights, such vulnerability is an anomaly. T o leave our rights exposed in this fashion is to betray the promise of human rights; it negates our right to the reliable protection of our rights. What is needed is an international order that helps b d d and preserve the protection of human rights at the national level; national protections must be bolted into an international system of guarantees. The creation of such a system is itself a human right, as the Universal Declaration correctly asserts. The international protection of human rights is the logcal completion of the human rights idea.

The Mutual Dependence $External and InternalJmtice

The Function of Punishment An essential component of an adequate system of human rights protection is the maintenance of a credible threat that assaults on physical integrity will be punished.2 This is one of the primary tasks entrusted to government, a task which must be performed in a manner that does not itself entail the violation of human rights. To maintain a credible threat that violations of physical integrity will be punished, the punishment of past violations must actually be carried out. It is not necessary - nor is it desirable - that every single violation be punished. We know that common criminals often escape punishment for violent acts by eluding detection, hiding from the authorities, winning acquittal, or obtaining clemency. It is enough for government to confront criminals with a serious level of risk. In reasonably stable societies, criminals expect the government to pursue them; they gamble that it will fail. For most people, however, the gamble is too risky. The fear of punishment reinforces, and helps implant, the moral inhibition felt by most people against the commission of violent crime. Because punishment may be inflicted only on the guilty, it has an expressive as well as a deterrent function. It sends a message that the indwidual being punished has acted wrongly. Thus the punishment of violations of physical integrity communicates the valuable message that such acts are wrong.3 The enforcement powers entrusted to government pose their own temptations, so special vigdance must be exercised over public officials, who need to expect punishment as the consequence of the violent abuse of their authority. The nightmare is that governments - or armed movements that imitate the power of governments - may come to violate integnty rights as a matter of policy. Then the punishment of human rights abuses by government is out of the question, and public officials inflict violence without fear. Ordinary people fmd themselves in a condition of utter vulnerability. In such circumstances, the most that can usually be hoped for is that punishment wdl be applied at a later date - after the transition from authoritarian rule, or civil war, to a stable democratic regime. But at that point it may be felt in some quarters that punishment no longer serves any worthwhile purpose and that it raises dangers of its own. For example, it may be thought to threaten the democratic

My understanding of the role of punishment is informed by Warren Quinn's seminal article, T h e Right to Threaten and the Right to Punish', 14 PbiIosoph_y and Public AJairs (1985) 327-73, reprinted in A. John Simmons, Marshall Cohen, Joshua Cohen, and Charles R. Beitz (eds.), Pzmishment: A PbiIosoph_y and P,vbhc A J k Reader (Princeton University Press, 1995). 3 See Joel Feinberg, T h e Expressive Function of Punishment', in Feinberg, Doing and Deservng (Princeton University Press, 1970), reprinted in Antony Duff and David Garland (eds.), A Reahr on Punishment (Oxford University Press, 1994); and Jean Hampton, 'The Moral Education Theory of Punishment', 13 PbiIosoph_y and Public Aflairs (1984) 208-38, reprinted in Simmons et al. (eds.), Punishment, s@ra note 2. 2

Finnish Yearbook OfIntemationalh(Vol. X71,2001)

transition itself, or undermine social reconciliation, or place an excessive strain on a weak julcial system, or demand scarce resources that are more urgently needed elsewhere. A debate frequently ensues between those who believe that some or all of those responsible for past abuses should be punished, and those who favor a policy of amnesty. A large scholarly discussion has arisen around this so-called problem of transitional justice. The topic is notoriously troubling. It is true that the costs of prosecution may be considerable; often they prove decisive. Although people have a right to live under the rule of law - to live in an institutional environment in which violent aggressors can expect to be punished- often the first step to setting up such an environment is to dsplace the very institutions premised on the rule of impunity. The leaders of those institutions may negotiate a partial impunity (in the form of amnesty) as the necessary price of their leaving the scene. So the very human rights considerations that condemn impunity may sometimes require us to compromise with impunity. That is the cold reality. But although compromise with impunity may be necessary, it is always regrettable. Humanity always pays a price when past violations go unpunished. What is lost when past violations go unpunished? The issue is lfficult, because the concept of punishment is itself difficult. As I have noted, the human right to physical integrity remains insecure unless society issues a credible threat that violations of the right wdl be punished. Human rights depend in the first instance on the threat of punishment, not on the inziction of punishment; the infliction of punishment is necessary only as a means of maintaining the threat. We punish aggressors today for violations committed yesterday so that the rights of people tomorrow are better protected.4 Moreover, the infiction of punishment always signifies the failure of the preceding threat. Hence the consciousness of failure or futility which inevitably attends every application of punishment. The sense of futility is heightened in the context of democratic transition. The threat of punishment was not in place when it should have been (while human rights violations were being committed). Now it seems to come too late. (And in a sense it does, as punishment always arrives too late.) But the other side of the question is the obligation we owe to current and future generations. We should not allow the impunity of human rights violators from a previous regune to serve as encouragement to people now and in the future who are tempted to follow their example. That is why punishment is properly understood as the right of society, not of the victim - a point all too often disregarded by the so-called victims' rights movement. Locke emphasizes the distinction: ' m h e damnified person has the power of appropriating to himself the goods or service of the offender, 5 nght ofse&presem/ation, as every man has a power to punish the crime, to prevent its being committed again, 5 the nght he has ofpreserving a[. mankind, and doing all reasonable things he can in order to that end.' Second Treatise, s q r a note 1 at para. 11. 4

The Mutual Dqendence $External and InternalJustice

One answer to this dilemma is to try to draw a bright line between the past and the future. That was the evident intent of the South African government when it saw itself obliged to implement a condtional amnesty for human rights violations committed during the Apartheid r e p e . The message powerfully conveyed by the Truth and Reconchation Commission - simultaneously charged with admuustering the amnesty and uncovering the truth about past crimes - was that while some past violations would go unpunished, human rights would be fiercely guarded in the future. South Africa had committed itself to a profound democratic transformation, and the TRC, as the midwife to h s transformation, would help model and teach the values of freedom, equality, tolerance, and human dgnity that would henceforth prevail. Future generations could look back to this era as the time when everythmg changed and a new society was born. Two points are in order. First, it must be emphasized that the South African amnesty was conditional, not total. To receive amnesty, perpetrators had to provide a full disclosure of their crimes. Indeed the threat of withholding amnesty was one of the most effective tools for uncovering the truth about past violations. Moreover, the process of disclosure was not without its punitive aspects.5 The line drawn by the TRC between past and future was not a solid one. Second, while the policy of the bright line (in one version or another) may sometimes constitute the best feasible strategy in the immediate context of transition, it is not an ideal policy. The nagging worry remains that a h e drawn once might be drawn again, the slate wiped clean a second time, so that what we had initially foreseen as. a safe future will be subsequently reclassified as a dark past whose crimes will be pardoned for the sake of a more dstant future.6 Perpetrators might bank on a second amnesty as protection for crimes committed in the meantime. Moreover, a dangerous signal is sent to other countries, where violent regmes can draw encouragement from the thought that their own crimes will lie safely on the 'past' side of some subsequently drawn line between past and future. Amnesties, in other words, have ramifications across time and space. They ddute the general expectation that violators of human rights will face punishment, and just to that extent they place everyone in danger.' Though conditional amnesties See Desmond Mpilo Tutu, No Ftittlre Withotlt Forgiveness (Doubleday: New York, 1999) at 51. It is no secret that violent actors have viewed amnesties as a green light to resume atrocities at some suitable occasion. A succession of amnesties in Guatemala in the late 1980's and in Sierra Leone in the late 1990's fit this pattern. O n Guatemala, see Amnesty International, Gtlatemala: The Rzght to Tmth and AMR 34/026/1996 (10 September 1996), available at Jtlstice, AI Index: <www.web.amnesty.org/ai.nsf/index/AMR340261996(visited 5 August 2002). O n Sierra Leone, see Abdul Tejan-Cole, Will United States Learn from Britain in Sierra Leone?', Democratization Policy Institute, Demomay Activist, Issue 3, 11 June 2002, available at <www.anonime.com/dpinstitute.org/ a f r i c a / w e s t ~ a f r i c a / s i e r r a ~ l e o n e / d e m o c r (visited a~ 11 December 2002); and Steve Coll, T h e Other War', Wmhington Post S m d y Magaene, 9 January 2000. 7 For an excellent dscussion of this problem, see Thomas Pogge, 'Achieving Democracy', 15 Ethics and IntemationaiAflajrs (2001) 3-23 at 5-8. 5

6

78

Fitznish Yearbook OfIntemationallazv (Vol. X I , 2001)

may sometimes be necessary in present circumstances, we must lay the foundations for a future without amnesties. We must undertake as our project the construction of a credible global threat that violations of human rights will be punished. Otherwise we make hostages of future generations. We are brought once again to the conclusion that the enforcement of human rights is an intemational responsibihty. There are at least three reasons for this proposition. The first reason is what Locke calls the duty to preserve mankind: morally speaking, we have a reason to protect the human rights of everyone everywhere in the world. The second reason is that indviduals need the help of the intemational community to prevent the emergence or perpetuation of abusive governments at home. The tlmd reason (just discussed) is that impunity for human rights violations in one country threatens the safety of people in other countries, too.8 Doubts are sometimes expressed about the deterrent effect of human rights trials. But no one seriously doubts that the existence of a functioning domestic criminal justice system deters a considerable amount of violent crime, gwen the significant risk of punishment facing would-be criminals. The goal of the antiimpunity movement is to create an equivalent risk for perpetrators of human rights atrocities. Needless to say, the accomplishment of this goal is a formidable task one that requires the coordinated efforts of &verse actors around the world.' It can only be reahzed in a gradual, incremental, and cumulative fashion. The futility of the project is not demonstrated by pointing to the apparently modest impact of one or another step. But even at this early stage, we can detect, in Payam Akhavan's words, 'an unmistakable contagton of accountability. This spread of accountability reflects the early glirnrnerings of an intemational criminal justice system and the gradual emergence of inhibitions against massive crimes hitherto tolerated or condoned by the international cornmunity7.10We must remember, too, that a credible system of international justice wdl make its greatest contribution to deterrence not by getting the instigators of massacre to reverse course after their crimes are unleashed, but by subtly steering leaders and followers away from the consideration of such crimes in the first place. As Akhavan observes, 'individuals are not likely to be easily deterred from committing crimes when engulfed in collective hysteria and routine cruelty. The central issue is whether and how punishment can prevent such aberrant contexts prior to their occurrence, or prevent their recurrence in postconflict The idea is implicit in the term 'crimes against humanity.' See Hannah Arendt, Eichmann in Jemsalem (Viking: New York, 1963) at 249. 9 For an important study of the successes won by transnational coalitions of human rights activists, see Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (eds.), The Power of H m a n Rghts (Cambridge University Press, 1999). '0 Payam Akhavan, 'Beyond Impunity: Can Intemational Criminal Justice Prevent Future Atrocities?' 95 American J o ~ m aofi International Law (2001) 7-31 at 9. 8

The Mzttztal Dqendence of External and lizternal_Tustice

79

situations'." Deterrence is typically most significant where it is least noticeable. Outcomes by themselves do not establish its fdure or success; one must think counterfactually to try to determine what would have happened if the deterrent effort had not been made. In subsequent pages I d suggest some ways in which the International Criminal Court has the potential to deter human rights atrocities.

The Case for External Justice One way to promote the global effort against impunity is to make use of external justice. If national governments cannot afford or d f u l l y reject the burden of prosecution, the international community can shoulder that burden for them. When human rights violators escape punishment at home, let them be punished elsewhere. To date, external justice has taken two main forms: the assertion of universal jurisdiction by national courts, and the creation by the UN Security Council of ad hoc war crimes tribunals. Universal jurisdiction is jurisdction that does not depend on a direct connection between the prosecuting state and the crime being prosecuted: the crime need not have occurred on the territory of the prosecuting state, and neither the defendant nor the victim needs to be a citizen of the state. Courts in several West European countries have asserted universal jurisdiction to prosecute human rights crimes committed in East Africa and the Bakans.12 The 1984 Convention Against Torture strengthens the legal basis for universal jurisdiction by giving member states the obligation to prosecute or extradite individuals credibly accused of torture. In 1998 Britain's highest court ruled that under the terms of the Convention Britain was authorized to extradite former dctator Augusto Pinochet to Spain to stand trial for acts of torture committed in Chile. The other main vehicle for external justice (prior to 2002) has been the use of ad hoc international courts. Two such tribunals were created by the Security Council in the 1990s to prosecute human rights atrocities in Rwanda and the former Yugoslavia. To date, over a score of individuals have been sentenced to prison, and scores more are undergoing or awaiting prosecution. Recently the Security Council authorized the creation of a hybrid court - partly international and partly national in composition - to prosecute human rights atrocities committed in Sierra Leone, and there are continuing negotiations to establish a similar tribunal for Cambodia. The International Criminal Court represents the most ambitious attempt to create a forum for external justice. Established on July 1, 2002, and ratified by 86 countries as of December 2002, the ICC has the power to prosecute genocide, war crimes, and crimes against humanity when either committed by the citizen of a Ibid. at 12. See Chandra Lekha Sriram, 'Exercising Universal Jurisdiction: Contemporary Disparate Practice', 6 International Jonrnal of H m a n Rights (2002) 49-76. 11

l2

Finnish Yearbook ofInternational law (I/ol.XII, 200 l )

consenting state or committed on the territory of a consenting state. In cases referred by the Security Council, the Court's potential jurisdiction is broadened to cover any adult person in the world accused of committing the aforementioned crimes after July 1,2002. Under the so-called Principle of Complementarity, the ICC may undertake judicial proceedmgs only when the state of primary jurisdction proves itself 'unwdlmg or unable' to launch a serious criminal investigation (Art.

17).l3 External fora offer obvious advantages in the global struggle against impunity. They can overcome failures of capacity or will at the national level. Some national governments, however willing, are simply unable to mount adequate prosecutions. They lack sufficient money, facilities, qualified personnel, or necessary expertise. Sometimes condtions are so chaotic that there is no national government to speak of. An international or foreign court, by contrast, may have the resources to undertake a serious trial that also guarantees due process protections to the accused. A national government may wish to prosecute human rights abusers, but fear the reaction that trials would provoke. Those opposed to prosecution (for example, the members of a previous authoritarian regme) can kill or harass public officials (especially judges and prosecutors), organize military rebellton, foment public unrest, or threaten to overturn a governing coalition. Indeed a democratic regime may owe its existence to an earlier promise (overt or secret) not to convene human rights trials. These are common impediments. They make it difficult to separate incapacity and lack of will as the sources of a state's inaction; in fact, both are intertwined. The advantage of external justice is that it is removed from these sorts of pressure. Judges and prosecutors are far away, and they are protected by foreign governments, as are those who make the official decision to set up trials. It is much harder for human rights abusers to bully their way out of foreign prosecution than domestic prosecution. A system of external justice puts actual and potential abusers on notice that it will be harder to get away with their crimes. Pressure may, of course, be directed against external justice, but its effect is greatly attenuated. The agents of external justice are in a much better position to tough it out. Prosecutors for the International Criminal Tribunal for the Former Yugoslavia (ICTY) have repeatedly insisted that political considerations played no role in their decision whether to indct specific individual^.^^ Some people may be skeptical that they played no role whatsoever, but the c r ~ c i a l - ~ o & is that prosecutors in a foreign or international court can make such an assertion with a 13 Rome Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2002, UN Doc. A/CONF. 183/9. 14 See Gary Jonathan Bass, S t y the Hand of Vengeance: The Politics of War C7zm Trihnah (Princeton University Press, 2000) at 220; and Titn Judah, 'The Star of the Hague', 49 New York Review ofBooh, 25 April 2002.

The M ~ t ~Dependence al .$External and InternalJustice

81

straight face, and in doing so create an expectation of legal integrity against which their performance can then be measured.15 It is worth pointing out that external actors who take advantage of their comparative insulation to initiate judxial proceedings can sometimes boost the movement against impunity back home. Britain's arrest of Pinochet breathed new life into the Clulean justice system, as domestic prosecutors found new ways to bring charges against military officers, information tumbled out about past violations, and the national courts eventually withdrew immunity from Pinochet himself (though they later restored it on grounds of poor health).l6 Sometimes governments simply do not want to prosecute. The will isn't thwarted; it is lacking. A democratic government that could prosecute the human rights violations of a previous regime or defeated insurgency without incurring major cost or danger in the process prefers not to do so. More commonly, will is absent because the government (or an insurgent movement in control of territory) is itself engaged in human rights violations. A noteworthy feature of external justice is that, unlike domestic prosecution, it need not await a transfer of power in the relevant locale before getting underway. Of course there are practical obstacles to the apprehension of human rights abusers whose sponsoring government remains in place. One can nevertheless use an external forum to set the wheels of justice in motion. The ICTY was created while atrocities continued to occur in Bosnia, whde Karadzic and Mladic held sway in the Republika Srpska, and while Tudjman and Milosevic ruled from Zagreb and Belgrade respectively." A dirmnished demand for prosecution is to be expected when the primary victims of atrocity are foreigners or perceived outsiders. The fact that Serbian crimes were hected against Croats, Bosnian Muslims, and ethnic Albanians has constituted the main obstacle to effective prosecution of war crimes inside the Federal Republic of Yugoslavia, even after Milosevic's overthrow. This also explains why Milosevic can stdl rouse sympathy among the home audience from his prisoner's dock in the Hague. Few countries have mounted serious prosecutions for war crirnes against foreigners, at least in the absence of international pressure. Here agam, external justice can fill the gap left by an exclusive reliance on domestic courts. 15 The pressure most difficult to withstand is that applied by the world's major powers, as witnessed by the successful effort of the United States to win temporary immunity for its peacekeepers from action by the ICC. See infra text accompanying note 34. 16 Tina Rosenberg, 'In Chile, the Balance Tips Toward the Victims', New York Times, 22 August 2000; and Clifford Krauss, 'The Chileans v. Pinochet', New York Times, 13 December 2000. 17 With regard to universal jurisdiction, the situation is more complicated. The International Court of Justice recently ruled that universal jurisdiction may not be asserted by a national court over another state's incumbent minister of foreign affairs for war crimes and crimes against humanity, unless immunity is waived by the minister's own state. It is uncertain to what extent the ICJ's reasoning applies to other high-ranking officials. Arrest Warrant of I 1 April 2000 (Democratic Rtpubdc of Congo v. Be&ium) (2002), <www.icj-cij.org> (visited 5 August 2002).

82

Finnish Yearbook of International LW (Vol. XII, 2001)

Problems of External Justice Nevertheless, external justice has provoked a number of concerns. Some echo reservations about domestic prosecution; others are specific to external justice. Among these concerns are worries about retroactivity, illegitimacy, distance, double standards, retaliation, impediments to peace, and unscrupulous prosecutions. Retmactivig. The fear is that external justice w e domestic prosecution) authorizes reckless intrusions into the past.18 The imputed recklessness is both legal and political. On the legal side, it may be felt that the external prosecution of human rights abuses of a previous regime runs afoul of the ndla poena sine lege rule (no punishment without a law). The natural reply to this charge is that major human rights crimes (particularly genocide, war crimes, and crimes agamst humanity) have been international crimes at least since the late 1940s. It may nonetheless be alleged that such international norms lack the necessary domestic authority to count as relevant law. Their dubious relevance, it may be thought, renders the exercise of external justice illegitimate. On the political side, there is a fear that prosecutions will stir up old bitterness and thus undermine social harmony. They focus attention on a disputed past, whereas our energies should be directed to the construction of a peaceful and stable future. I have argued above that the fdure to prosecute the human rights crimes of a previous regime exacts a social cost, but there is another side to the issue and that is, precisely, thatprosedon may also exact a social cost. IIlegitimag. Some doubt the legitimacy of external justice. Such doubts reflect a number of the concerns listed above (such as retroactivity). But one source of doubt is the very externality of external justice. Such justice reaches beyond the established forms of jurisdiction, and proceeds without authorization of the state in whose jurisdiction the matter originally falls. It imposes itself from the outside. It may thus be perceived as an encroachment on national sovereignty. For some people, these features place its legitimacy in doubt; for others, delegitimize it entirely. Such illegitimacy is unfortunate for practical as well as principled reasons. Prosecutorial action perceived to be illegtimate stirs resentment and possible backlash. Distdnce. Nations emerging from the experience of mass violence need to come to terms with their past. They may choose the route of tmth commissions, or prosecutions, or both, but in one way or another they must assume the difficult tasks of investigation, testimony, and judgment. Otherwise nothing is learned. The danger of external justice is that it too conveniently delegates these tasks to the international community, removing them from the location where their educational

18 See Brad R. Roth, 'Anti-sovereigntism, Liberal Messianism, and Excesses in the Drive against Impunity', in this volume; and Roth, Teaceful Transition and Retrospective Justice: Some Reservations. A Response to Juan E. Mendez', 15 Ethics and InternationalAfairs (2001) 45-50.

The Mutual Dqetzdence $External atzd ItzternaI Justice

83

impact has the greatest value.19 When prosecutions are carried out abroad they may receive less publicity at home. And since national citizens are not involved (or less fully involved) in the judicial reckoning, an opportunity is lost to internalize values of due process and human d i p t y . The nation is relegated to the role of spectator, or sometimes even non-spectator. Double standard. External justice could become an exercise in one-way justice, with one group of countries always sitting in judgment and another other group of countries always being judged. There is nothing necessarily wrong with this, provided the first group of countries has a clean record. The danger arises that they may not, and that they choose to judge other countries for crimes of which they are also gudty. Such danger is inherent in the prideged position of the permanent five members of the Security Council, who can appoint international war crimes tribunals to prosecute leaders of other states while using the veto to shield their own conduct from similar judgment. Though universal jurisdiction by national courts does not insulate countries in the same way, it still permits governments to prosecute the alleged crimes of other governments, even when their own conduct warrants equal examination. One-way justice often takes the form of victors' justice. Some argue that victors' justice is better than no justice at all; others are less sure. What may be agreed is that it leaves much to be desired. It can be used as an excuse to reinforce an unequal balance of power, or to h d a t e the loser of a d t a r y confhct. It lends itself to double standards, which may be reflected not only in decisions over whom to prosecute, but also in the defmition of what counts as a prosecutable crime. Victors' justice, especially when characterized by double standards, can give rise to politically dangerous resentments. Retaliation. External justice may provoke retaliation. Such retaliation may be fueled by resentment, or employed in a calculated strategy to stop the application of extemal justice. (Of course both factors may be in play.) Gary Bass has described the difficulty Britain and France faced in prosecuting war crimes by captured German officers during World War I: Germany responded to such attempts by putting captured Allied officers in criminal jails. The Alhes backed off until the end of the war.20 Wherever external justice is applied to the agents of governments or armed movements that still retain military capacity, retaliation remains a possibility. It might be directed at the official personnel or o r b a r y citizens of countries leading the drive for extemal justice. (Such retaliation could potentially take the form of counter-prosecutions.) Or it could be directed, in terrorist fashion, against a local population, using their suffering as extortion against the international community. (This could take different forms. A government or armed movement already See Mark A. Drumbl, 'Judicial and Jurisdictional Disconnects', in this volume; and JosC E. Alvarez, 'Crimes of States/Crimes of Hate', 24 Yale JomalofIntemationalla2v (1999) 365-483. 20 Bass, S t q the Hand of Vengeance, szpa note 14, at 61-62,83.

l9

Finnish Yearbook oflntemationallaw (Vol. XII, 2007)

engaged in human rights violations could escalate them in explicitly calibrated fashion as a response to the application of external justice. Or a deposed mhtary could threaten or carry out a coup d'ktat.) The specter of retaliation places the would-be agents of external justice in a quandary, confronting them with the eternal dilemma whether resistance or appeasement is the best answer to tyranny. Perhaps one ought to say that whereas appeasement is sometimes necessary, it must always be fitted into a long-term project of resistance: the international community should strive to subdue tyrants and warlords in the long run, using punishment as a strategy when it is safe to do so. But saying this hardly dissolves the problem. Even when resentment does not give rise to retaliation, it remains dangerous in its own right. The popular German backlash against Allied insistence on war crimes trials after World War I helped draw support to the Nazi party.21External justice has pedagogy as one of its purposes: it is intended to teach respect for human rights. But the lesson may be drowned out in the resistance that it generates. The challenge is to teach the lesson as persuasively as possible, so that, among other things, less resistance is directed to the application of external justice itself. AnythLng that casts doubt on the process - such as the application of double standards, or perceptions of unfairness - interferes with that goal. Impediments topeace. The purpose of external justice is to increase the likelihood that human rights violators d be punished. But h s very feature may constitute one of its greatest defects." Repressive regimes or violent armed movements, perceiving an increased risk of prosecution, may c h g to power with ever greater desperation. If necessary, they may ratchet up their abuses in order to do so. In this way, external justice could delay or even prevent democratic transition. Restoration of peace and democracy often requires negotiation, and accountability may be one of the items that must be bargained away. Ths, it is claimed, is the origmal problem with insistence on domestic prosecution. External justice doesn't help; it makes matters worse. It takes away the flexibility that is necessary to the successful negotiation of a political settlement. The overall force of this objection is hard to judge. The inflexibility of external justice may sometimes be a help rather than a hindrance to peace. It was feared that the ICTY's indictments of Karadzic and Mladic might impede a peaceful settlement of the war in Bosnia. In retrospect the indictments seem to have helped, by pushing these men to the sidelines.23 Because of the indictments, Karadzic and Mladic were excluded from the Dayton conference, and barred from positions of official 21

Ibid. at 92.

See Chandra Lekha Srirarn, 'Universal Jurisdiction: Problems and Prospects of Externalizing Justice', in this volume; and Jack Snyder and Leslie Vinjarnuri, Trinciple and Pragmatism in Strategies of International Justice', typescript on file with author. 23 See Bass, Stay the Hand of Vengeance, s@ra note 14, at 232-39. 22

The Mutual Dependence @External and Inteml]ustice

85

responsibility under the terms of the peace settlement. Their marginalization gave a freer hand to Milosevic, who proved more urlllrng to reach a deal. But what if Milosevic himself had been placed under an indictment - as he subsequently was for war crimes in Bosnia? Would a peace settlement then have been harder to achieve? (Some wdl argue that this question cannot be abstracted from its larger context, and that the real problem was the West's unwillingness to undertake a vigorous military response to Serbian aggression.) On the other hand, would an early indictment of Milosevic have prevented Serb atrocities later committed in Kosovo? And did Milosevic's eventual indictment hasten or delay his removal from power? These are difficult questions to answer. In addition, the short-term value of a policy of external justice may differ from its long-term value, and the overall value of foreign indictments may depend on the wdhgness of the international community to back them up with force. This issue -a reprise of the general ddemrna between appeasement and resistance - is exceedingly complex. Unsmpulousprosemtion. External justice poses a risk of unfair prosecutions. One danger is the denial of due process to the accused. There is a general consensus that such rights have been well protected in the ad hoc international tribunals and also in the trials of East African and Balkan defendants under universal jurisdiction in West European courts. Nevertheless, one could imagine, in countries with weaker legal traditions, trials of foreign officials under universal jurischction that made a mockery of due process. A related danger is that of prosecutions brought on trumped up charges. Trials of foreign functionaries could be mounted on patently political grounds, without any solid basis in the law. As noted before, such trials could be undertaken in retaliation for the prosecution of a government's own agents in foreign courts. The legitimate exercise of external justice may inspire its illegitimate exercise elsewhere. And even when prosecutions are fair, the perception of their unfairness is dangerous in itself, for reasons we have already seen. (Such perceptions might arise spontaneously, or as the result of organized propaganda.)

The International Criminal Court and the Improvement of External Justice These are the some of the misgivings to which the idea of external justice has, not unreasonably, given rise. It is the signal achevement of the International Criminal Court that it goes a long distance to solving these problems. Though it does not tackle all the enumerated problems with equal success, it greatly reduces their collective impact." There are now two excellent overviews of the Court: Leila Nadya Sadat, The Internatonal Criminal Coat? and the Transfomation of Internfitional LW: Jtlsticefor the New Millennium (Transnational Publishers: Ardsley, New York, 2002); and Williarn A. Schabas, A n Introd~ctionto the International Cbminal Coat? (Cambridge University Press, 2001). An articulate discussion and defense of the Court is provided in 24

Finnish Yearbook OfInternational Law (Vol. XII, 200 s')

Two crucial features of the Court are that it is created by an international treaty and that its jurisdction is prospective. These features, in concert, cure some of the most sigmficant problems of illegitimacy and retroactivity, and by extension help to mitigate other concerns as well. The Court's existence, structure, and powers are a function of ratification by individual states. The founding treaty, known as the Rome Statute, provides that the establishment of the Court requires ratification by 60 states - a threshold passed in Aprd of 2002. Through ratification, a state earns a seat on the Assembly of States Parties, whose powers include the election and removal of prosecutors and judges, selection of a budget, adoption of Elements of Crimes and Rules of Procedure and Evidence, and approval of treaty amendments (which, however, must be ratified by seven eighths of states parties before entering into force). Ratification of the Statute by individual states determines the Court's personal jurisdiction in the following way. Although there are no antecedent limits on personal jurisdiction in prosecutions undertaken at the behest of the Security Council, Article 12 stipulates that jurisdiction in prosecutions triggered by state party referral or begun at the initiative of the Prosecutor is limited to individuals who are citizens of a consenting state or who are accused of committing one of the prosecutable offenses on the territory of a consenting state. Ratification is the normal means of transmitting consent, although non-member states may consent on a temporary ad hoc basis. The unlimited personal juris&ction in cases of Security Council referral formalizes a power which the Council had already asserted, prior to the Court's inauguration, when it established ad hoc tribunals for Rwanda, the Balkans, and Sierra Leone. Here it might be said, exaggerating only shghtly, that the Court creates nothing new. Moreover, Security Council referral may be rare, given the United States' open hostility to the Court, and the individual veto power enjoyed by each of the Council's permanent five members. What is both new and significant is the Court's power to initiate proceedings at the request of a state party or upon the determination (pending approval by a pre-trial chamber of judges) of the Prosecutor. This power opens up a new forum for external justice. But, importantly, the scope of this power is limited by the requirement of a tie based on citizenshp or territory to a consenting state. This requirement bolsters the legitimacy of the Court. Except for cases referred by the Security Council, the Court may act only with the authorization of those states most drectly concerned. When it asserts jurisdiction under Article 12, it does not impose itself in a undateral way. It acts with the prior consent of the state whose citizens are implicated in human rights atrocities or on whose territory such crimes have allegedly taken place. Because the Court's powers origmate in the state's Rod Jensen, Tolicing the Global Village: Globalization and the Intemational Criminal Court', paper presented at the annual conference of the Law and Society Association (Vancouver, 2002).

The Mataal Dependence of External and Internal Justice

87

consent, citizens of that state have less grounds to complain about the usurpation of national sovereignty. Perhaps the staunchest supporters of sovereignty may argue that no state has the right to delegate the power of prosecution to an international court. But to this we may reply that a state is fully justified in doing so as a means of upholding its most fundamental responsibility -the protection of human rights. If a state ever has the right to k t its powers by means of a treaty for some legitimate end, surely it may do so for the sake of human rights. I say more about this below. The limits on the Court's jurisdiction underscore the significance of ratification. When a state ratifies, it declares, first of all, that the Court henceforth enjoys complementary jurisdction over its citizens. The jurisdtction extends not only to ordinary citizens, but also, since Article 27 rules out official capacity as grounds for immunity, to high-ranking officials in government and the armed services. The government officials who oversee ratification consequently bind themselves in the strongest and most dramatic way possible to the defense of human rights, because they voluntarily renounce whatever immunity protections they may otherwise have enjoyed, and, by their undertaking, make their successors and themselves personally liable to prosecution by an international court for major human rights crimes. This is what social scientists hke to call a 'pre-commitment strategy' -but with a vengeance. That eighty-six countries (as of December 2002) have unllingly taken this step represents an astonislung and unprecedented development in world history. The courage of these states is worthy of celebration.25 The Court's jurisdiction includes crimes committed by a member state's citizens against citizens of other countries. It thus brings under its protection a category of people (namely foreigners) for whom (as mentioned above) a member state's population may feel less overall sympathy, and whose rights it may feel less obligated to protect. Current international and municipal law offers imperfect protection to the rights of non-citizens. Thus the commitment by ratifying states to assume equal obligations towards foreigners represents another bold step forward from existing practice. By the act of ratification, a state also gives the Court the power to prosecute human rights atrocities committed on its territory. Such crimes will most often be committed by the territorial state's own citizens, but they may also be committed by foreigners, including in some instances citizens of states that have not ratified the Statute. The latter case is most likely to arise from armed operations by a nonmember state on a member state's territory during a war or military intervention. Because Article 12 jurisdiction extends in h s limited way to citizens of nonmember states, it has aroused the ire of the United States, which fears that its own The revolutionary srgnificance of the Court is stressed by Sadat in Tbe Internatonal Cnininal Coag sqra note 24; and by FrtdCric MCgret in 'Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law', 12 Ezlropean J o m a l ofIntemational L a w (2001) 247-68.

25

Finnish Yearbook ofInternational Lazv (Vol. XII, 200 l )

citizens could become targets of prosecution.26 In defense of the provision, we should recall the undisputed right and responsibility of all states to preserve domestic order, a right which gives rise to the equally undisputed right of states to prosecute crimes committed on their territory. It does not seem unreasonable that a state might seek the assistance of an intemational court to insure that such prosecutions are actually carried It would be highly anomalous if a state party, having made its own citizens and leaders vulnerable to the Court's prosecution for human rights atrocities, includmg those inflicted on foreigners, could not invoke the Court's assistance in the protection of its own inhabitants against foreign abuses committed on its territory.28 The Court's jurisdiction, as previously noted, is complementary. It initiates proceedmgs only if the state of primary jurisdiction fads to do so. To avoid the embarrassment of having their citizens and officials investigated before the Court, ratifjmg states have an increased incentive to prevent human rights crimes from occurring, and, in case their precautions fail, to prosecute such crimes in national courts. Some member states have begun revising their penal codes to include prohibitions on genocide, war crimes, and crimes against humanity as these terms are currently defined; other states are being urged to do so. The Court thus contributes to the 'domestication' of intemational humanitarian law and human rights norms. As one scholar observes, ' R e influence of the Rome Statute will extend deep into domestic criminal law, enriching the jurisprudence of national courts and challengmg prosecutors and judges to greater zeal in the repression of serious.violations of human rights3.29The Court, having derived its existence from I discuss US opposition to the Court in 'Who Shall Be Judge? The United States, the International Criminal Court, and the Global Enforcement of Human Rights', Haman RzghtsQarster& forthcoming. 27 Notice, therefore, that national courts already enjoy the jurisdiction over non-party nationals (for crimes committed on the state's territory) which Article 12 grants to the International Criminal Court. The dire implications which the United States sees in Article 12 - that U.S. nationals could be tried in foreign courts - are already here. 28 For the argument that Article 12 jurisdiction over non-party nationals is in violation of international law, see Madeline Morris, '&h Crimes and Misconceptions: The ICC and Non-party States', 64 La2v and Conteqborary Problems (2001) 13-66. For the opposing view, see Michael P. Scharf, 'The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position', 64 Law and Contemporary Problems (2001) 67-117; and Mtgret, 'Epilogue to an Endless Debate', sapra note 25. I do not believe that a state acts at all contrary to democratic principles if, in foreseeing that it may lack the judicial capacity to prosecute genocide, war crimes, and crimes against humanity committed by foreign nationals on its soil, it empowers an international court operating in accordance with due process to undertake such prosecutions on its behalf. Such a policy is a legitimate form of self-defense, consistent with and supportive of democratic norms. I am therefore unpersuaded by the argument of Madeline Morris, 'The Disturbing Democratic Deficit of the International Criminal Court', in this volume. 29 Schabas, Introdaction to the International C7ihnal CO&, ~ q r a note 24 at 19. The significance of complementarity is described in Jensen, Tolicing the Global Village', sqra note 24. 26

The M ~ t u aDependence l $External and Interna/]ustzke

the express authorization of states guded (at least in this instance) by a commitment to human rights, serves in turn to internalize that commitment at the domestic level. It nurtures the values that inspire its creation. To avoid ICC intervention, member states with fragde protections of human rights will need to do more than revise their criminal code. If they are wise, they will seek to develop bureaucracies more capable of administering justice and upholding the law, reform military and police procedures, institute a program of civic education that emphasizes human rights, and seek to remove the sources of ethnic tension.30 Such multifaceted strateges deserve the support of well-established democracies and international NGO's. Whrle state consent bestows legitimacy on the Court, the fact of multiple ratifications adds another dimension of legtirnacy. When several states ratify, the Court passes from being a unilateral or bilateral to a collective undertakmg. It makes a dfference that not one but several states are observed to possess the necessary courage to bind themselves to the Court's complementary jurisdiction. Ratification is no longer an isolated or eccentric act, but one whose rationality is acknowledged by other states. It simultaneously expresses a national commitment and the power of an intemational movement. Supporters of the Court know that they are joined by like-minded individuals around the world. The Court answers to an intemational constituency (even though it has not yet attained a global membership). If the jurisdiction-ratification tie is vital for understanding the character of the ~ Court, so too is the prospective nature of its jurisdiction (Art. 27). The C O Umay only prosecute crimes committed after its entry into force (July 1, 2002). Moreover (except for cases referred by the Security Council, or requested through a state's ad hoc acceptance of the Court's jurisdiction), it may not prosecute crimes that are committed before the state of nationality or the territorial state becomes a party to the Treaty (Art. 11). Ratification thus draws a boundary in time: a member state makes its citizens liable to the Court's prosecution for crimes committed after, but not before, the date of accession. The prospective jurisdiction of the Court s k s the problem of retroactivity, but without introducing new problems in turn. We have noted the dilemma that transitional justice poses regarding the future and the past: there are understandable pressures to institute amnesties for past crimes, but the expectation of renewed amnesties spells disaster. The Court navigates h s dilemma in a skillful way. It is oriented toward the future, but the future it seeks to construct is one in which it d no longer be possible to preserve impunity by drawing a protective curtain over the past. It protects people in the future, by ruling out amnesties in the further future. Of course in the future new pressures for amnesties may present themselves. By joining the ICC, however, a state undertakes not to yield to such pressures. In Trinciple and Pragmatism', sqra note 22, Snyder and Vinjamuri stress the dependence of human rights on strong institutions of justice and public administration.

30

90

Finnish Yearbook of International Lcaw (Vol. XII, 200 l )

Through such an undertaking, it does two things: first, it acquires an added incentive never to find itself in the position of looking back on a history of human rights crimes and feeling pressure to institute a collective amnesty for such crimes; and second, it sends a signal that should it nevertheless find itself in such a position it will, despite all the difficulties involved, refuse to institute an amnesty. As a member of the ICC, it will have no choice in the matter. All the relevant parties must adjust their calculations accordingly: in particular, potential human rights abusers can no longer bank on a future amnesty, to be obtained by extortion or other means. We see once again how ratification of the Court takes the form of a pre-commitment strategy.31 The Bush Adrmnistration misses the point of all this when it lists among its objections to the Court that it is too rigd in its treatment of the past. In a statement explaining the reasons for the United States' recent withdrawal of support from the Treaty, Under Secretary of State Marc Grossman declared: When a society makes the transition from oppression to democracy, their new government must face their collective past. The state should be allowed to choose the method. The government should decide whether to prosecute or seek national reconciliation. This decision should not be made by the ICC.'32 What h s statement ignores is that a government might prefer a third choice - to bind itself, through ICC ratification, not to issue amnesties in the future. This is not only a legitimate option for a democratic government; it is the best option - as should become clear when we think through the implications of the Bush Adrrrrmstration's preferred alternative, whch is to preserve the permanent possibility of amnesty.33 Among the dangers enumerated in the previous section, I have dwelled on those of illegitimacy and retroactivity, because I believe the ICC deals with them in a particularly constructive way. The forward-looking character of the Court and the foundation of its jurisdiction on state consent set it apart from previous forms of external justice and will come to be seen, I think, as constituting two of its greatest strengths. I shall speak more briefly about the Court's ability to handle the other Some have argued that the Court can respect national amnesties in special circumstances. See Michael P. Scharf, 'The Amnesty Exception to the Jurisdiction of the International Criminal Court', 32 Cornell International Law Journal (1999) 507-27. But if the Court is to succeed, this practice must be strictly limited. In his reading of the Statute, Scharf finds that acceptable amnesties must satisfy a demanding set of criteria, and even then the Court 'should defer prosecution only in the most compelling of cases' (at 527). 32 Marc Grossman, 'American Foreign Policy and the International Criminal Court.' The text can be (visited 5 August 2002). found at <www.usis.usemb.se/newsflash/grossman~iccma2.h 33 States that are ctlrrentb enduring civil war are placed in a more difficult dilemma, since the withdrawal of amnesty as an option may complicate prospects of negotiated settlement; on the other hand, allowing the parties engaged in violence to hope for amnesty encourages the continued commission of atrocities here and now. This quandary is the source of the divided feelings of many Colombians toward the ICC. See 'Colombia Ratifies Intemational Criminal Court', Associated Pm, 5 June 2002. 31

The Mutual Dependence of External and InternalJustice

71

dangers I mentioned. Some of these dangers are diminished by its effective handhg of the problems of illegitimacy and retroactivity. Concerns about double standards should be greatly allayed by the collective character of the Court. Before a coungi can refer a case for prosecution, and before it can win a seat on the Assembly of States Parties and thereby take part in the election of the Prosecutor and the judges, it must fust accept the jurisdiction of the Court. The countries that sit in judgment are thus liable to judgment themselves. (The exception is the Security Council, whch can refer cases for prosecution whether or not its members have ratified the Treaty, but as we noted the Council has already in effect laid claim to this power, with or without the ICC.) The danger of double standards is not dispelled entirely. Conceivably a bloc of member states could win an effective immunity by political maneuver, and the power to prosecute non-party nationals could be abused. The question is whether this is likely. In the final part of this paper I take up the question of the possible corruption of the Court. As I discuss later, the Court's membership consists disproportionately of democratic states. Since these also tend to be comparatively rich states, concerns have arisen that the Court might &splay a bias towards its wealthier members. A Court that directs its investgations disproportionatelytoward officials of poor states is not g d t y of discrimination if the activities of the investigated parties merit that level of attention. The Court must nonetheless beware of cultural biases that would lead it to apply a stricter standard to poor states. (It should also beware of a misplaced cultural sensitivity that would lead it to apply a weaker standard to poor states.) The Court's supporters are deeply committed to avoiding double standards. On July 12, 2002, at the insistence of the United States, the Security Council voted to gve UN-sponsored peacekeepers from non-ratifying states a one-year exemption from investigation or prosecution by the Court.34 The United States had originally demanded permanent immunity, but moderated its position in the face of intense resistance from the rest of the Council and the UN as a whole. The other members of the Council did not like the substance of the compromise measure; they approved it only because the United States vowed that it would otherwise cast its veto against future peacekeeping missions. The showdown in the Council was recognized by everyone as a battle between the supporters and opponents of the ICC. What the Court's supporters objected to was the creation of a double standard within the ICC r e p e and the consequent weakening of the Court's legitimacy. In this case, we should note, the double standard was imposed from without, not developed from within. The Court's supporters are determined to block the renewal of immunity after the first year. 34 SC Res. 1422 (2002). The Resolution takes advantage of language in Article 16 of the Rome Statute which presumably was never intended to be used in this way

92

Finnish Yearbook ofIntemationaI Law (I/ol.XII, 2001)

The same factors that mitigate the danger of double standards should reduce the threat of unscrupulous prosecution. States are more hkely to guard against prosecutorial abuse when, as members of the ICC, they are its potential targets. The Court d , in addition, be the beneficiary of an accumulated fund of global expertise on international criminal law, and d be placed under an intense public spothght. The democratic states and human rights NGO's which have provided the main impetus for the Court will be quick to cry foul if any abuses begm to take root. It will have both the means and the motive to adhere to standards of fairness. The ad hoc international tribunals, on which the Court is most closely modeled, are generally acknowledged to have conducted themselves honorably. Stlll, the danger of corruption never disappears entirely. As for distance, the Court will be located in the Hague, and therefore its proceedings are likely to be far removed from the scene of the crimes being prosecuted. Nonetheless, the Principle of Complementarity is designed to decrease the hkelihood that cases are actually heard by the ICC, and to increase the hkehhood of their being heard in the courts of those states most duectly implicated. States will step up prosecutorial activity to avoid the embarrassment of the ICC7sintervention. The norms embedded in the Rome Statute (along with the record of any cases the Court may previously have heard) will provide national governments with a road map to prosecutorial and judicial policy should they find themselves in the unhappy situation of responding to major human rights crimes. In this way the Court indirectly advances the cause of locally administered justice. Retaliation will remain a danger. To the extent, however, that the Court's legitimacy is enhanced by state consent, the resentment that helps inspire retaliation should find itself reduced. The reminder that the state whose citizens now face prosecution voluntarily joined the Court is a helpful argument against nationalist resentment. (Unfortunately, the argument does not apply when non-party nationals become defendants.) Much d depend on the Court's reputation for fairness and impartiality. To reduce the danger of politically calculated uses of retahation, it will also be important for the Court to cultivate an appearance of immovability in the face of extortion. The repeated assertion by the ICTY Prosecutors that they are not swayed by political considerations provides a useful model. Wdl the Court delay negotiations leading to the end of civd war or the transfer of power from dictatorship to democracy? It is hard to know, because one can foresee either of two contrary dynamics. Indictment by the Court can contribute to the isolation and ultimate weakening of tyrants and warlords, but it can also stiffen their effective resistance to the introduction of peace and democracy. Nonetheless, in the longer term, there is reason to hope that the Court will make a net contribution to peace. That is because the primary role of the Court d not be to respond to atrocities that have already occurred, but to prevent them from occurring in the first place.

The Mutual Dependence $External and InternalJustice

93

The greatest cloud over the ICC is the danger of not being able to enforce its mandate. Member states are obliged by the Rome Statute (Articles 86-93) to surrender accused individuals to the Hague, assist in the collection of evidence, and permit witnesses to testify at trial. But it does not require a vivid imagination to foresee that an outlaw government might flout its treaty obligations by sheltering suspects, concealing evidence, and intimidating witnesses. Armed intervention will sometimes be necessary to apprehend the accused and secure meaningful cooperation with the prosecution. The Security Council, however, is often reluctant to authorize humanitarian intervention, and indvidual states are generally (though not always) unvllllrng to act without the Council's blessing. The danger here is that the ICC will threaten prosecution without actually carrying it out. The combination of threatened prosecution and military inaction may not only disappoint expectations of justice; it also has the potential to do great harm, because it removes an incentive for. criminal leaders to negotiate peace whde doing nothing to defeat them.35 Supporters of the Court must think carefully and creatively about how to back up justice with power.36 The continued hosthty of the United States to the ICC may unfortunately complicate that effort.

How the ICC Benefits Democracy I have stressed the domestic sources of the Court's legtimacy, and emphasized what is gained when the personal jurisdction of the Court is tied to state consent. Yet some human rights advocates may be dismayed by the direction of h s argument. It cedes too much, they wdl object, to the principle of state sovereignty. It makes the protection of human rights depend on decisions by national governments. Where international crimes are concerned, however, we should seek the widest possible jurisdiction for the Court. We should base its legitimacy on the very principle of human rights - - r i g h t s which no government may deny to its citizens. This objection is the opposite of that which I mentioned at the start of the paper. The earlier complaint is that external justice is too removed from domestic politics and does not respect the agency of (democratic) national governments. This new complaint is that the Court should not have to wait for the invitation of national governments. Both complaints fail to grasp what is necessary to secure the effective longterm global protection of human rights. The domestic protection of human rights is strengthened by the availability of a credible and fair system of external justice. But the effectiveness of that system depends on the support and participation of This problem is discussed, though not in direct reference to the ICC, in Snyder and Vinjamuri, 'Principle and Pragmatism', sqra note 22. 36 This point is made by Robert Fine in 'Cosmopolitanism and Social Theory', Ewopean Journal ofSon'aI The09 (forthcoming).

35

94

Finnish Yearbook ofli2temationaLldw (Vol. XII, 200 l )

democratic nation states strongly committed to the protection of human rights. The International Criminal Court is an institution under wluch a system of external justice reinforces national democracy, and vice versa. Hence the title of my paper: T h e Mutual Dependence of Internal and External Justice'. Partly by intention and partly by chance, the Court is particularly well organized for this task. An attempt either to reduce its powers or to broaden its jurisdiction would undermine its longterm effectiveness. It helps to distinguish two possible conceptions of the Court's role. Each may be dlustrated by a different image drawn from John Locke's Second Treatise of Government. On the first conception, the Court functions as a kind of world sheriff, whose responsibilities and whose legitimacy are suggested by Locke's account of the state of nature. In the state of nature, wluch is defined by the absence of political authority, everyone is endowed with human rights. These rights imply a set of duties, collectively termed the law of nature, and summarized in the command that 'no one ought to harm another in his life, liberty, health, or possessions'.37 The duties are to be enforced- not by government, since it does not exist, but by everyone acting as judge and executioner of the law of nature. As judges, each of us is authorized to punish the human rights violator 'so much as may serve for reparation and restrainP.38 Offenders have in no sense consented to be punished by us -no social contract has been signed. Nevertheless, we are authorized to punish them because the human rights of each member of society demand nothing less. As Locke puts it, 'The Law of Nature would . . . be in vain, if there were no body that. . . had a Power to Exemte that law7.39 Tlus story is easily applied to the current international arena. Individuals inhabiting the state of nature may be compared to nation states not bound by any world government. The ICC does not claim to be an international government, and anyway its reach is not global. Many states have not ratified it and are unlikely to do so in the near future. Ratifjmg states stand to non-ratifying states as individuals stand to one another in Locke's state of nature. Just as individuals in the state of nature are authorized to punish non-consenting offenders in order to uphold the law of nature, so rights-respecting states should be allowed, under the auspices of the Court, to seek the punishment of human rights violators from non-ratifying states in order to h e l d all of humanity from gratuitous assault. One hopes that all states will eventually ratify, but in the meantime we shouldn't simply stand on the sidelines and watch criminal governments commit atrocity with impunity. But there is another way to conceive the purpose of the Court. To dustrate the alternative conception, we can turn to a different part of Locke's Treatise Here the Locke, Second Treatise,qbra note 1 at para. 6. Ibid. at para. 8. 39 Ihd. at para. 7.

37

38

The Mutual Dqendence ofExternal and Internal]u.rtice

reasoning does not rely on an analogy between the state of nature and the international states system; we read Locke's account as a theory of domestic government. As is well known, Locke views the state of nature as an unstable arrangement, because people make poor judges in their own case. Being prone to exaggerate the offenses of others and to deny any of their own committing, they can be led by individual exercise of the executive power into violent conflict. Locke's proposed remedy is the establishment of representative government in which the execution of natural law is entrusted to a common judge. We are safest when laws ensuring our rights are made by an assembly of our elected representatives and applied by an independent judiciary. Locke gives us, in embryo, a democratic theory of rights protection. Having identified the protection of rights as the primary purpose of government, he argues that democratic political institutions are those best suited to thls purpose. We can b d d on his account by noting that to secure rights and deter abuses of political power most effectively we require not only representative legislatures, legislative supremacy, and an impartial judrciary, but also the separation of powers, checks and balances, a free press, universal education, a vigorous civil society, and public schemes of social insurance. (This is not a complete list.) Democracy is connected to human rights because it has the protection of human rights as one of its central purposes, and because the institutional forms by which it is recognized are conducive to that goal. But democratic forms do not always fulffi democratic purposes, as Locke well understood. Representative government is not danger-free: there is always the risk that it may degenerate into tyranny, either because the executive trespasses on legislative power, or because the legislature abuses its authority. When that happens, we are left worse off than under the state of nature. Locke's solution to the problem is powerful but crude: the people retain a residual right to overthrow tyranny by revolution. His hope is that the very awareness of thls right will sober up public officials and place a check on domineering tendencies. And sometimes the right must actually be used in order to restore civil government. But the disadvantages of this device are obvious enough. Revolution may fad, in whlch case blood will have been spilled in vain and the tyranny is likely to accentuate its cruelties. Or revolution may succeed, and (as all too often happens) replace the preexisting tyranny with something worse. Locke is honest enough to call revolution a form of war, but human rights fare notoriously poorly in wartime. They suffer even under the threat, real or irnagmed, of war. It would be a tragedy if the main strategy chosen to defend against political brutality exacerbated the very disease it was meant to cure. We therefore have reason to seek other back-up protections, so that the resort to revolution can be avoided as long as possible. One idea is to supplement the standard internal safeguards (separation of powers, competitive elections, free press, etc.) with an externul check: some sort of supranational authority that can monitor government's conduct from the outside and take corrective action when government veers away from the protection of human rights. Citizens of a

96

Finnish Yearbook OfInternational LW(VoL XII, 200 1)

democratic state might voluntarily appoint such an authority to serve as an insurance policy against tyrannical encr~achment.~~ The Intemational Criminal Court has the potential to play h s role. Democracies join the Court so that potential instigators of atrocity receive an external deterrent. They are liable in advance to punishment by an international court, even if they seek to evade domestic prosecution. (It is true that a tyrannically inched leader might try to leave the Court's jurisdction. Withdrawal is legally possible (Art. 127), but, one assumes, politically difficult. When attempted before tyranny is made manifest, it constitutes an early warning of a regime's intentions. In any event, withdrawal only takes effect after a year's delay, and cannot be used to halt proceedings already initiated by the Court.) Membership in the Court can also be used to foster broader understanding of human rights domestically and the development of a human rights culture. The Principle of Complementarity wdl have its bracing effect on the judicial system. We may think of ICC ratification as a vaccine for democratic good health. I have argued in preceding sections for precisely this understanding of the Court's role. The Court functions as a device whereby democracies commit themselves to the preservation of democratic institutions and dtligent protection of human rights. They commit themselves by increasing the costs to those who would try to divert the state from the f u l f h e n t of these responsibilities. The Court is a creative strategy for extending democracy far into the future. In structure and logic, it resembles an array of similar democracy-preserving strategies recently proposed by Thomas Pogge.41 Though the Rome Statute does not oblige its member states in formal terms to preserve democratic institutions, it gives them a powerful incentive to do so. State terror is not inevitable in the absence of democratic institutions, but it is statistically much more hkely, because it faces far fewer barriers. States that take seriously their pledge to the Court have a reason to guard democratic institutions as the first h e of defense against the emergence of politically organized violence. Ratification of the ICC entails a democratic commitment in this instrumental sense, but also in the 40 Clearly some such process helps to explain the remarkable development of the European Court of Human Rights. Andrew Moravcsik shows how representatives of fragde democracies who sought to lock in' democratic institutions in their own countries provided the major impetus for the European Coua's creation. See 'The Origins of Human Rights Regimes', 54 International Otganixation (2000) 21752. Moravcsik hypothesizes that well-established democracies are likely to oppose the creation of strong international human rights courts, but this has not been true for the ICC. 41 In a path-breaking article, Pogge recommends that democracies ratify constitutional amendments declaring that the nation will honor neither foreign debts nor sales of natural resources that are transacted by any future dictatorial regime. The merits of this device are that it ties the hands of tyrannical usurpers in advance so as to deter usurpation in the f ~ splace, t and that it invites the genuine cooperation of the advanced industrial states, not just their rhetorical support, in behalf of democracy. See Pogge, 'Achieving Democracy', stcpra note 7.

The MzltuaI Dqendence ofExemal and Internal Justice

deeper sense that the defense of human rights is central to the meaning of democracy; it is implied in the democratic vision of the equal freedom and d p t y of all persons. Ratification of the ICC strengthens democracy not only by increasing the costs of non-democratic deviation. The Principle of Complementarity encourages prompt domestic reforms to deepen human rights protections and make anti-democratic maneuvers more dfficult. Recent research underscores the importance of domestic incorporation of human nghts norms. A UN-funded study of the impact of international human rights treaties concludes: 'The international system has had its greatest impact where treaty norms have been made part of domestic law more or less spontaneously (for example as part of constitutional and legislative reform), and not as a result of norm enforcement.'42 A similar process of domestic incorporation helps explain the power of the European Court of Justice and European Court of Human Rights.43 It should come as no surprise that the Court's membership consists dsproportionately of democracies. When we apply the rankings of Freedom House to the 86 current members of the Court, we find that 65 per cent are 'free', 31 per cent are 'partly free', and 4 per cent are 'not free'. T h s compares favorably to a breakdown of all the countries in the world, 44 per cent of which are 'free', 31 per cent are 'partly free', and 25 per cent are 'not free7.44Members of the International Criminal Court include both the well-established democracies of Western Europe, Canada, Australia, and New Zealand, but also newer and more fragde democracies in Southern and Western Africa and Latin America. Even the non-democratic outliers help prove the rule. Three of the Court's members are categorized as 'not free' by Freedom House. Two of those three are Cambodia and the Democratic Republic of Congo, whch share recent harrowing experiences of officially sponsored mass violence.45 One may safely surmise that their ratification of the Statute expresses a commitment not to permit the repetition of similar tragedies in the future; it may even express more ambitious democratic aspirations that have yet to achieve institutional reali~ation.~~ Christof Heyns and Frans Viljoen, T h e Impact of the United Nations Human Rights Treaties on the Domestic Level', 23 Htiman RigbtsQtiatfer-(2001) 483-535 at 487. 43 Lawrence R. Helfer and Anne-Marie Slaughter, 'Toward a Theory of Effective Supranational Adjudication', 107 Yale LwJotlmaI (1997) 273-391, esp. 290-97. 44 Numbers as of 10 December 2002. My thanks to Jayme Ribaudo for calculating these figures. The rankings are reported in Freedom House, 'Freedom in the World 2001-02', available at <www.freedomhouse.org/research/freeworld/2002/essay2002.pdf>(visited 10 December 2002). 45 The third is Tajikistan, which endured a bloody civil war in the 1990's. 46 Here it is worth noting the reminder of Lawrence Helfer and Anne-Marie Slaughter that democratically oriented supranational courts can form alliances with democratic actors that fmd themselves inside oppressive regimes: Even in a political system that is otherwise corrupt or oppressive, it is possible that a particular government institution - a court or administrative agency or 42

Finnish Yearbook ofInternational LW (Vol. XII, 200 l )

It is all the more disheartening, therefore, to learn that the Bush A h s t r a t i o n cites the dependence of human rights on democratic governance as an argument against the ICC. In his statement to the press, Under Secretary Grossman explained: W e believe that states, not international institutions, are primarily responsible for ensuring justice in the international system [and] that the best way to combat these serious offenses is to build domestic judicial systems, strengthen political d and promote human freedom.' The statement closes with these words: 'In the end, the best way to prevent genocide, crimes against humanity, and war crimes is through the spread of democracy, transparency and rule of law. Nations with accountable, democratic governments do not abuse their own people or wage wars of conquest and terror. A world of self-governing democracies is our best hope for a world without inhumanity.'47 All of which is true -but the Court is one of the best means for promoting this objective. The Bush Admmstration bravely ignores the Court's vital role in strengthening democracy. It tries hard not to notice that almost all democratic nations have been quick to embrace the Court, while non-democracies are, almost without exception, visibly reluctant to do so. The Court promotes the global spread of democracy, because it makes it significantly harder for new or well-established democracies to slip back into dctatorship. (It does so, moreover, by wisely rejecting the Bush Administration's view that amnesty for human rights crimes should always be kept on the table.) As I argue below, the Court also gives non-democratic nations an incentive to undertake the transition to democracy. The reasons cited by the Bush Administration as arguments against the Court are more properly arguments in its favor. As I have noted, there can be slippage between the forms and purposes of democracy. Democratically organized states sometimes carry out human rights atrocities, most notoriously in the form of war crimes against foreign populations. But every human rights violation is a betrayal of democracy. States prove their democratic credentials by respecting human rights and by taking measures to secure even a legislative body - will choose to forge a relationship with a supranational tribunal as an ally in a domestic political battle against corruption or oppression . . . Participation in the 'community of law' constructed by a supranational tribunal is open not only to countries but also to individual political and legal institutions, regardless of how the state of which they are a part is labeled.' 'Toward a Theory', szpa note 43 at 335. Ratification has the potential to spur democratization in authoritarian states, because it encourages democratic reforms under the logic of complementarity, and because it narrows the range of strategies available to anti-democratic leaders, who notoriously have organized atrocities as a means of achieving or retaining power. However, ratification should not be viewed as some sort of magic democracy pill for authoritarian regimes. As I discuss below, it would be unwise to seek a large influx of non-democratic states into the ICC. The basic point is that countries with the strongest commitment to the democratic project - a category consisting predominantly though not exclusively of countries that already enjoy democratic institutions - are those with the clearest incentive to join the Court. 47 S q r a note 32.

The Mutual Dependence of External and I n t e m l Justice

99

their enhanced protection. Thus, to repeat: ratification of the ICC is an important measure of democratic commitment. One cannot help feeling that, in its attack on the ICC, the United States has allowed democratic values to be dsplaced by its fascination with global power. The role of the Court is not only or even primarily that of world sheriff; it also serves as an insurance policy for democratic states. I belabor this point because the world sheriff model is the first to suggest itself; it is the model which has most energized the Court's supporters and opponents alike. While I do not reject the world sheriff model - indeed I support its underlymg rationale - I believe that it has dstracted us from an important part of the story. It is easy to focus on the high drama of court trials and rulings, but we need to be attentive to the subtler and more indirect consequences of the Court. Above all, we need to remind ourselves of its invisible achievement: all the atrocities, non-democratic r e p e changes, and outbreaks of civil war that will never have taken place because of its salutary presence.

How Democracy Benefits the ICC Admittedly, the two models of the Court's role are not entirely separable. After all, democratic insurance works only on the assumption that the Court has the power to impose its judgment on unvllllulg parties. The underlymg dfference between the models is that the world sheriff model makes the Court's authority independent of the consent of national governments, while on the democratic insurance model state consent is the heart of the story. During the 1998 negotiations in Rome that led to the adoption of the Treaty text, a choice was effectively made in favor of the democratic insurance model. Delegates argued strenuously and at length over the question of personal jurisdction. A wide spectrum of views was presented, with Germany arguing that the Court should be empowered to prosecute any adult in the world for crimes committed after its entry into force, and other states, principally the United States and India, argumg for a much narrower range of jurisdction.48 The rule eventually adopted was closer to the narrow end of the spectrum. As we have seen, prosecution requires consent of the state whose citizen stands accused. There are two exceptions: (1) prosecution is also permitted for crimes committed on the territory of a consenting state, and (2) the Security Council may authorize the Court to investigate and prosecute individuals from anywhere in the world, regardless of nationality and the location of the alleged crime.

See Kenneth Roth, T h e Court the US Doesn't Wanty, 45 New York Review ofBooks, 19 November 1998, 45-47; and Diane F. Orentlicher, 'Politics by Other Means: The Law of the Intemational Criminal Court', 32 Cornell InternationalLazv Jo~rnal(l 999) 489-97 at 490.

48

100

Finnish Yearbook of International LW (Vol. XII, 200 I )

Many human rights advocates were understandably frustrated by the narrow jurisdiction awarded to the Court. They pointed out that tyrannical regmes can escape the danger of prosecution simply by not ratifylng the Treaty and by confining their crimes to their own territory or the territory of other non-ratifymg states. Such r e p e s are vulnerable in theory to a Security Council referral, but power politics and mutual divisions among the veto-wielding Permanent Five will shield many tyrants from that fate. What's the point of an international criminal court, many have asked, if it d be so easily evaded by the world's worst offenders? The democratic insurance model has a clear benefit: democratic states, by joining the Court, can strengthen and preserve democratic institutions. But the model has an obvious cost: citizens of non-democracies are left without the Court's protection. Can anythmg be said to reconcile us to h s cost? I believe the answer is a partial yes. The cost proves, in an odd way, also to be a benefit. This claim rests on two hypotheses: first, that a large influx of nondemocracies would threaten to bring about the corruption of the Court; and second, that a broadening of the Court's jurisdiction would encourage more nondemocracies to join. On h s reasoning, narrower jurisdiction helps protect the integrity and reputation of the Court and, as a consequence, its long-term effectiveness. We need to think seriously about protecting the Court from corruption. However much human rights NG07sand the epistemic community of international criminal lawyers hope to shape the Court's direction, they do not possess the immechate levers of control. These are in the hands of member states meeting in the Assembly of States Parties. The Assembly has the crucial responsibility of electing the eighteen judges, the Prosecutor, and the Deputy Prosecutors. It also has the right to remove a judge or prosecutor for misconduct or incapacitation. To elect or remove a judge, a two-thuds majority is required; to elect or remove a prosecutor, a simple majority is necessary. Each state party may nominate one judge; judges must be citizens of ratifylng states; and no more than one judge may be citizen of the same country (articles 36, 42, 46). Articles 36 and 42 spell out in greater detail the required qualifications of judges and prosecutors. The Assembly also has the power to approve Rules of Evidence and Procedure and Elements of Crimes, and to adopt amendments preliminary to their ratification by the required seven eighths of the states parties. We have reason to believe that the character of judges and prosecutors will be affected by the political orientation of the Court's member states. The election of judges and prosecutors to international courts is often highly political.49 The 49 See Henry G. Schermers, 'Election of Judges to the European Court of Human Rrghts', 23 Ewopean Law Review (1998) 568-78; and Cherie Booth and Philippe Sands, 'Keep Politics out of Global Courts', Gzlardan, 13 July 2001. Booth and Sands write: Though many members of the international judiciary

The Matztal Dependence $External and IntemalJastice

101

consequences of this can be dire. Because of political wrangling and obstructionism, it took the UN Security Council eighteen months to agree on a Prosecutor for the Yugoslavia Tribunal.50 All h s , whde in Bosnia massacres, rapes, torture, and ethnic cleansing continued unabated. Not surprisingly, the Coahtion for the International Criminal Court - an alliance of over one thousand NG07s joined in support of the Court - has devoted considerable effort to monitoring and assisting the process of selecting judges and prosecutors.51 The presence on the Assembly of a large number of states lacking a sincere commitment to the protection of human rights poses several dangers. The worstcase scenario is that an anti-democratic coahtion seizes temporary or permanent control of the Court. Perhaps this is unlrkely, but there are other problems short of outright subversion. Hostile or uncommitted states might press for the appointment of unsuitable judges and prosecutors, or block the selection of qualified ones. They might seek to apply pressure, subtly or unsubtly, on the judges and prosecutors already chosen. This danger is present under the best of circumstances, but the inclusion of states with an uncertain commitment to human rights seriously exacerbates it. Fears have been raised that politicization would lead to irresponsible prosecutions, but perhaps the ltkelier danger is paralysis, with prosecutors and judges intimidated from taking appropriate action. The perception of a politically paralyzed Court would seriously damage its prestige and legitimacy. More is at stake in the danger of paralysis than the decision whether to dl prosecute a particular case. The Treaty Statute is sure to contain flaws whose f sipficance will be.revealed only after the Court is up and running. Some of its provisions will prove outdated as new forms of violence and crisis are bound to emerge. Ample measures of trust and good faith will be needed to navigate the difficult process of amendment and revision, and a Court bloated with half-hearted and antagonistic members will not help. The biggest challenge is likely to lie in the area of war crimes law, which contains many areas of uncertainty and which has provoked the greatest nervousness among governments. There may come a time when state delegations will have reason to rewrite the war crimes law of the Statute in response to unsatisfactory rulings by judges. Successful revision will depend on the vision, courage, and moral acuity of the drafters - qualities more ltkely to be found among the representatives of committed democracies than in an assembly are excellent, the selection of international judges is often a highly politicised affair, with some of the most independent and qualified candidates being passed over by the electing bodies, usually [consisting ofl states. Regrettably, in many states, nominations are handed out to reward political loyalty rather than legal excellence.' 50 Bass, Stg the Hand of Vengeance, szipra note 14 at 215-219; and Michael P. Scharf, Balkan Justice (Carolina Academic Press: Durham, 1997) at 75-79. 51See the numerous papers posted by the Coalition for the International Criminal Court on the subject at <www.igc.org/icc/html/new.html> (visited 5 August 2002), along with the Coalition fact sheet, 'Election of Judges', at <www.igc.org/icc/html/presselectionofjudges.pd (visited 5 August 2002).

Finnish Yearbook of Intemational ldw (Vol. XII, 200 l )

some of whose members show up precisely because they fear the strengthening and improvement of human rights law. I have leaned on the view that the conduct of the Court will be shaped by the character of the states belongmg to it. But a contrary hypothesis is possible: namely, that non-democratic member states, through their participation in the Court, will be socialized into its values. This dispute echoes a larger debate about the sources of compliance with international r e p e s . One view, which I will call the constitutive thesis, holds that compliance depends on a state's pre-existing preferences, which are shaped in turn by its r e p e type. According to the most influential version of this view, democratic states are those most likely to abide by their international cornmitments.52 The other view, known in the literature as the transformational thesis, holds that international r e p e s have the power to elicit compliance from a wide variety of states, which despite differences in regime type share common interests in international legitimation, problem-solving, and the avoidance of conflict.53 I neglect a richer description of these two schools of thought,54 and invoke them only to generate a pair of contrasting hypotheses about the relation between 52 For important statements of this thesis, see Helfer and Slaughter, Toward a Theory', s@ra note 43; Anne-Marie Slaughter, T h e Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations', 4 Transnational Law and Contemporary Problems (1994) 377-419; Slaughter, 'International Law in a World of Liberal States', 6 European Journal oflnternational Law (1995) 503-38; Andrew Moravcsik, 'Taking Preferences Seriously: A Liberal Theory of International Politics', 51 International Organization (1997) 513-53; and Moravcsik, T h e Origins', supra note 40. For a critique of this view, see Josi E. Alvarez, 'Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory', 12 European Journal of International Law (2001) 183-246. This school commonly goes by the name of liberal international relations theory' -a somewhat awkward description, as the school's main proponents seem to recognize. See Moravcsik, 'The Origins', supra note 40 at 246; and Slaughter, 'International Law in a World of Liberal States', at 507, note 5. 53 See Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Comphance with International Regzllato?~Agreements (Harvard University Press: Cambridge, Mass., 1995). For a discussion and critique of this view, see George W. Downs, Kyle W. Danish and Peter N. Barsoom, T h e Transformational Model of International Regime Design: Triumph of Hope or Experience? 38 Columbia Journal of TransnationalLaw (2000) 465-514. 54 We should note, for instance, that the constitutive model does not exclude the potential of international organizations to steer seemingly unfit states toward compliance. However, it explains this result (when it occurs) differently than the transformational model. On the transformational model, international organizations obtain compliance from seemingly unfit states by appealing to their existing preferences for such things as respect and cooperation in the international arena. O n the constitutive model, international organizations obtain compliance from these states more indirectly, by changing their underlying preferences, sometimes in such a way as to transform their regime type. (Thus there is room for a 'transformational' dynamic in the constitutive model.) See Slaughter, T h e Liberal Agenda', sqra note 52 at 401: 'A primary function of an international organization. . . is to shape State preference formation. Its success is more likely to depend on the extent to which it can influence what States want rather than its ability to constrain the ways in which they can get it.'

The Mutual Dependence of External and Internal Justice the ICC and its member states. The transformational thesis predicts that the Court has the power to tame non-democratic states; the constitutive thesis predicts that non-democratic states have the power to corrupt the Court. Our question then may be framed as follows: Can the Court civilize a large non-democratic membership faster than such a membership will corrupt the Court? I believe that in the case of the ICC, corruption is the lkelier consequence. In the fust place, it is well known that international agreements concerning human rights are those with the weakest record of compliance: many nations flagrantly disregard such commitments. This is the area, therefore, in which the transformational school has the least predictive success.55 Thrs should not come as a surprise. Unlike other international obligations, human rights commitments are primarily concerned with domestic policy. They require the adoption of internal policies and institutions that by their nature are inimical to repressive r e p e s . We should expect human rights commitments to encounter stubborn and enduring resistance from these regimes.56 Second, the ICC violates all the prescriptions laid out by the transformational school for the achrevement of compliance. These prescriptions are that the initial commitments of an intemational regune should be non-threatening, decisions should be reached by consensus or near-unanimity, and failures to comply should be addressed through non-confrontational methods such as negotiation.57 The centerpiece of the ICC is the criminal trial - the very antithesis of the gentler and more consensual methods of persuasion envisaged in the transformational model. The inapplicabhty of this model to the ICC can be dustrated by a comparison with the most celebrated example of the transformational approach in the field of human rights: the so called Helsinki Process in the last years of Soviet sponsored communism. In 1975, following years of negotiations, the Soviet union and its client states joined Europe and North America in an agreement promoting EastWest cooperation and exchange. At the insistence of the European Community, and despite the reluctance of the Soviet bloc, the framework included a general statement committing the signatories to respect for human rights and fundamental freedoms. 'I'hls commitment was adroitly used by dissident groups in Eastern Europe and the Soviet Union to organize protest, build up an international support network, and persuade foreign governments to apply pressure for the curtailment of repression. The ensuing domestic and intemational mobilization is widely credited as one of the main factors leadmg to the demise of the communist system.58 Chayes and Chayes, The New Soveragn~,s q r a note 53 at 16-17. For a study of how transnational human rights advocates have achieved democratic reforms over the resistance of repressive governments, see Risse et al. (eds.), The Power ofHmzan Rzghts, s q r a note 9. 57 Downs et al., 'The Transformational Model', szipra note 53 at 471. 58 See Daniel Thomas, The Hehinki Efect (Princeton University Press, 1999); Thomas, 'The Helsinki Accords and Political Change in Eastern Europe', in Risse et al. (eds.), The Power ofHz/man Rzghts, sqra note 9,205-33; and Chayes and Chayes, The New Sovereign& sqra note 53 at 256-59. 55

56

104

Finnish Yearbook oflntemational Lazv (Vol. XII, 2001)

Once the Helsinki process got underway, the communist regmes found there was little they could do about it. Formally, the process rested on little other than the statement of principle signed by the regimes themselves, and a scheduled series of international conferences in which their human rights records could be held up to public criticism. The underdetermined structure proved highly beneficial to transnational activists working against these regmes. Contrast thts to the hrgh legalism of the ICC. The Court establishes a formallzed and centralrzed adversarial process with high stakes, clear winners and losers, and a dense legal machinery that provides opportunities for subversion and manipulation. All eyes d be on the Prosecutor's decisions regardmg whom to ind~ct,and intense political maneuvering can be expected to shape that outcome. The trial, the composition of the Court, and the rules all become strategic foci for those with a political stake in the Court's conduct. Given the publicity and high drama of the Court's proceedmgs, the intense emotions involved, the geopolitical interests at stake, and the levers avadable for political influence, we should expect that antipathetic member states are likelier to approach the Court with an attitude bent on strategc manipulation than to become socialized into its governing values. The hkelier model for an inclusive Assembly of States Parties is not the Helsinki Process but the notoriously politicized UN Human Rights Cornmission.59 The International Criminal Court would suffer from the inclusion of a large number of non-democracies, as the NGO community is beginning to appreciate.6o The danger of mischief is too great. Some non-democracies may be safely adrmtted, but not enough to form a critical mass. The European Union and NATO, which require democratic governance as a condition of membership, constitute an approximate (though too strict) model. I stress that my purpose is not to reject the transformational model of international cooperation, only to say that it does not apply to the ICC. Indeed the Court could form a productive relationship with more inclusive human rights regmes organized on transformational principles: the latter could serve as a training ground for the former. Once more Europe serves as a model, with the Organization for Cooperation and Security in Europe, the Council of Europe, NATO, and the EU forming a continuum from larger, less democratically constituted organizations to smaller, more democratically constituted

59 See 'U.N. Fears "Bloc" Voters Are Abetting Rrghts Abuses', New York: Times, 28 April 2002, at 17. Unlike the official membership of the Commission, the Assembly of States Parties has only an indirect influence on the decisions of the Court. Yet even an indirect influence could, under the wrong conditions, prove seriously damaging. 60 See the Coalition for the International Criminal Court fact sheet, 'Court of Democracies', at <www.igc.org/icc/html/pressfreedom20020322.pd(visited 5 August 2002).

The Mutual Dependence ofExternal and Internal Justice

105

organizations, and with the quest for admission into the EU entailing a long-term process of socialization into democratic values.61 In retrospect, we have reason to be grateful that the proposals to give the Court a very broad or even universal form of personal jurisdiction were not adopted. The reason is simply that broad jurisdiction would have given repressive regmes too great an incentive, and the wrong kind of incentive, to join the Court. If a repressive regme is liable to having its officials prosecuted whether or not it belongs to the Court, it has little to lose by joining, while it also has something to p:the opportunity to influence the Court's dLt.ection.62The only cost of joining is that of lending symbolic support to an institution it prefers did not exist, but this cost might be easily outweighed by the strategic advantages of membership. The danger of opportunistic membership is enhanced by the fact that ratification of treaties is most easily accomplished under authoritarian regmes. The flip side of this is that restm'ctive jurisdiction gives h o m a t i c regmes a certain incentive to ratify the Treaty. Ironically, thts is because restrictive jurisdxtion makes membership more dangerous by comparison with non-membership. When a state does not ratify, the danger that its officials will be prosecuted remains low; after ratification, that danger increases substantially. But where the risks are greater, the glory is also. A ratifying state proclaims its democratic courage; it shows itself so deeply committed to the protection of fundamental human rights, that it does not fear, and on the contrary welcomes, its vulnerability to the prosecutorial activity of an international court. Such a message will be clouded, however, to the extent that a country is already vulnerable to prosecution prior to ratification. This indicates one respect in which restrictive jurisdiction may be expected to enhance the luster and prestige of the Court. It causes the Court to be seen as an assembly of brave nations. Non-member states may wish that they were equally brave, and might consequently aspire to the level of democratic self-confidence permitting them to join the heroes' club. Under a rule of restrictive jurisdiction, in other words, the Court can appeal more powerfully to the democratic vanity of states. Moreover, citizens of non-member states may begin to ask why they do not enjoy the Court's protection, concluding that the answer lies in the skewed priorities of their regmes, which need as a consequence to be altered. In this way, the Court serves as a spur to democratization. Add to this that the democratic pride of 61 See Manfred Nowak, 'Human Rights "Conditionality" in Relation to Entry to, and Full Participation in, the EU', in Philip Alston (ed.), The EU and Human Rights (Oxford University Press, 1999). 62 We get a flavor of this logic in the argument frequently offered to coax the United States into ratifying the ICC despite its objection to Article 12 jurisdiction over non-party nationals. If US citizens are already vulnerable to ICC prosecution, it is said, the United States should at least be in the position of shaping the court from the inside. Given the bullying posture adopted by the United States to a wide range of multilateral institutions to which it belongs, one wonders whether this is in fact such a good idea. See Ian Williams, T h e US Hit List at the United Nations', Foreign Poky in Fow, 30 April 2002, available at <www.fpif.org/cornrnentary/2002/0204un~body. h t m b (visited 5 August 2002).

106

Finnish Yearbook ofhtemationalLaw (Vol. XI%2001)

member states d presumably deepen their commitment to the Court and their abhty to cooperate with each other. Such esprit de corps will be reinforced by the confidence placed in the solidly democratic credentials of judges and prosecutors. The greatest disadvantage of restrictive jurisdiction is that it could prevent the Court from doing much in the way of judicial action. This is a serious price to pay in a world as violence-prone as ours. But the long-term advantages should make up for the loss. The ECHR offers an encouraging example of an international court that took little action in its fist two decades, but budt up reserves of legtirnacy that helped raise it to its current stature.63 Today its power is sustained by the trust and respect bestowed on it by the civil society of an entire continent. The International Criminal Court will be fortunate to command similar respect. The hope is that, under a rule of restrictive jurisdiction, it will experience smdar growth. The growth would be different in form, but not wholly disanalogous. The ECHR grew as an institution by increasingly challengmg the laws of its member states. The ICC would expand by bringing into its orbit a growing number of states, attracted by the fairness of its proceedmgs, and by the prestige of joining a partnershp of brave democracies.64 The foregoing considerations show why supporters of the Court should be cautious in the means they use to obtain expanded membership. Other things being equal, more ratifications are better, but other b g s are not always equal. Ratification should express a genuine pledge; it should be undertaken in full consciousness of its sipficance, not without some terror of the consequences of non-compliance. The gravity of the commitment should be felt throughout all levels of society. Ideally, countries should not be pushed into joining the Court, but should be pulled by attraction to the values it enshrines. In that way ratification will be accompanied by a process of democratic transformation or consolidation.65 The Bush Administration alleges that the Court will become an 'institution of unchecked power7.66 However, the Court has a check in the Assembly of States Parties, with the power both to elect and remove the Court's personnel. I have argued that this check d be exercised responsibly because of the democratic composition of the Court, a logical outgrowth of the rules governing personal jurisdiction.

Slaughter, 'Toward a Theory', s@ra note 43. After the fall of the Berlin Wall, the ECHR also expanded its geographic jurisdiction through the admission of formerly communist states. 65 The UN Secretary General has called for the swift universal ratification of the Rome Statute. I believe this would be imprudent. See 'International Criminal Court Enters Force; Annan Hails 'Historic' Occasion', UN News Centre, 1July 2002. 66 S@ra note 32.

63 See Helfer and 64

The Mzttztal Dependence of External and Internalj~stice

707

Conclusion The ICC is an attempt to construct s o m e h g new in world affairs. Unlike the great war crimes trials of the past - Nuremberg, Eichmann, Arusha, and the Hague - it is not established in the wake of atrocity to address crimes that have already occurred. It looks forward in time. It protects people in the future by warning in advance that perpetrators of genocide, war crimes, and crimes against humanity d be held accountable for their deeds regardless of their official status. Though one can hardly expect it to be without flaw, and though it is certain to encounter serious difficulties in the years ahead, one must nonetheless admire the virtues of its design. Chief among these are its sensible balance of ambition and restraint and its skillful welding together of international and domestic sources of legitimacy and accountability. The Court prods national governments into the more determined prevention of the gravest human rights crimes, while enlisting the same governments as guarantors of its trustworthiness. Through its symbolism and its interaction with domestic legal systems, it has the potential to transform political culture. Because it unites a vision of human rights with institutional mechanisms to bring that vision closer to reality, it is a democratic achievement in the truest sense. We need to beware of two errors. The first is to think that the protection of human rights is safely entrusted to nation states without benefit of international reinforcement. The second is to suppose that international reinforcement can function without supervision from below, and to forget the hard work that must be done at the national level before the global protection of human rights can be achieved. It is a fantasy to trust in the self-sufficiency of national institutions, and likewise in the possibility of a global dezts ex machind that can be depended on to solve our problems for us. The wisdom of the International Criminal Court is that under its auspices national democracy and external justice are made to bolster each other.

This page intentionally left blank

The Disturbing Democratic Defect of the International Criminal Court Madeline Morris*

Introduction Genocide, systematic war crimes, and crimes against humanity rarely are committed without the authorship or collusion of governments. The crimes of the Nazis, the Khmer Rouge, the 1994 'interim government' of Rwanda, and countless others, exemplify the pattern. The fact of governmental involvement poses a distinctive difficulty in the enforcement of the international law prohibiting those extraordinary crimes. A government that is implicated in the crirnes is unlikely to prosecute the perpetrators. As a result, the usual mechanisms of domestic law enforcement are unlikely to provide effective enforcement in t h s field. The Intemational Criminal Court @CC)' is intended to ameliorate this problem.2 The jurisdictional provisions of the ICC Treaty place power to prosecute, in certain circumstances, in an authority, the ICC, that is outside the government that may be implicated in the crimes. Because prosecutorial power is vested in an external authority, perpetrator r e p e s are impeded in their ability to shield * Professor of Law, Duke University. The author wishes to thank for comments on this paper the participants in the conference, 'From a Culture of Impunity to a Culture of Accountability', convened by the United Nations University, Tokyo and the Netherlands Institute of Human Rrghts, Utrecht University, 26-28 November 2001, the participants in the conference, 'Combating Impunity: Stakes and Perspectives', convened by the Belgian Ministry of Foreign Affairs and the Coalition for the International Criminal Court, Brussels, Belgium, 11-13 March 2002, and the participants in the Annual Meetings of the Law and Society Association, Vancouver, Canada, 30 May - l June 2002. Special thanks are due to Brad Roth and Chandra Sriram, the editors of the present symposium. The thesis developed here appears in earlier form in Madeline Morris, Tacking a Leviathan: The Quandaries of Peace and Accountability' in M. Cherif Bassiouni (ed.), Post-Conzct J~sticevransnational Publishers: Ardsley, NY, 2002) 135 and in Madeline Morris, T h e Democratic Dilemma of the Intemational Criminal Court', 5 Bufalo Cn'minalLaw Review (2002) 591 (symposium issue). 1 The ICC is established pursuant to the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF. 183/9, reprinted in 37 International Legal Materah (1998) 999 Fereinafter 'ICC Treaty']. The ICC Treaty came into force on 1 July 2002. 2 Universal jurisdiction is the other jurisdictional mechanism frequently advocated as a partial remedy for this problem. For an essay by this author on universal jurisdiction, see Madeline Morris, 'Universal Jurisdiction in a Divided World', 35 New EnghndLaw Review (2001) 337.

110

Finnish Yearbook: of International Law (Vol. XI., 200 l )

perpetrators from justice. The present essay will examine this aspect of the ICC7s jurisdictional structure in terms of the theme of the externalization of justice that is the subject of the present symposium. The ICC Treaty solves the problem of colluding r e p e s ' shielding perpetrators from justice by providing that, under some conditions, the ICC may exercise jurisdiction over defendants even if their states of nationality are not parties to the treaty and have not otherwise consented to jurisdiction. In so doing, the treaty invites the court to assert authority - law-making authority as well as lawenforcement authority - over populations with which the ICC has no relationship of representative governance. Within h s solution to the problem of colluding r e p e s , then, lies a deep democratic defect. The jurisdictiond structure of the ICC therefore poses a tension between two sorts of accountablty: the legal accountability of the perpetrators of international crimes, on the one hand, and the democratic accountabhty of the ICC itself, on the other.

The Exceptional Structure of ICC Jurisdiction The International Criminal Court d be an international judicial

institution with jurisdiction over genocide, war crimes, and crimes against humanity.3 The relationship between the TCC and national courts is to be governed by the 'complementarity regune' laid out in the ICC Treaty, which is the constituting document of the court.4 Under the system of complementarity, the ICC may exercise jurisdiction only if states are unable or unwilling to do s0.5 As Article 17 of the ICC Treaty states, a case shall not be adrmssible before the ICC if the case 'is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unable or un-g genuinely to carry out the investigation or prosecution.'" In this way, complementarity gives priority to states in the enforcement and development of humanitarian law. But, it also provides the ICC with the authority to conduct prosecutions when states are unable or unwilling genuinely to do so. By the terms of the ICC Treaty, if the state where the crime is alleged to have occurred, the 'territorial state,' is a party to the ICC Treaty (or consents ad hoc to the jurisdiction of the court), then the ICC will have authority to prosecute an indnidual

3 See ICC Treaty, sqra note 1, Art. 5. While the ICC Treaty also provides for jurisdiction over the crime of aggression, see ibid., Art. 5(l)(d), the treaty further provides that the ICC shall not exercise that part of its subject matter jurisdiction until such time as the treaty is amended to include provisions defining the crime of aggression and setting out the conditions under which the court will exercise jurisdiction over that crime. See ibid. Art 5(2). See sqra note 1. 5 Ibid. at Art. 17. 6

Ibid.

The Ristztrbing Demomatic Defect oftbe International Cm'minal COW

111

even if that defendant's state of nationality is not a party to the treaty and does not consent to ICC jurisdction.7 ('Consent' will be used in this essay to include both consent via participation in the ICC Treaty and ad hoc consent.) This authority is the ICC's so-called 'jurisdiction over non-party nationals.'8 The advantage of affording the ICC this power to prosecute without the consent of the defendant's state of nationality is that t h ~ sjurisdxtional structure circumvents the problem of perpetrator r e p e s ' shielding their own nationals from justice. An international court is needed most when the perpetrator is shielded by a government. For that reason, the ICC has, by the terms of the ICC Treaty, genuinely supra-national powers. In those instances when a state is unable or un&g to render accountabhty at the state level, the defendant is called to account not before the court of any state, but before an international institution. In essence, this is a supra-national solution to the problem of national transgressors. This kind of supra-national authority is a new departure. Even while complementarity comports with, and supports, the authority of states in a statebased international system, it also goes beyond state authority; it makes an exception. Where genocide, war crimes, or crimes against humanity are alleged, there is now to be an authority higher than the state. It is true that, for the ICC to have jurisdiction over non-party nationals (in the absence of a referral by the UN Security Council), the temtorial state must be a treaty party or consent ad hoc to jurisdction. But this does not mean that the ICC is merely the delegee of the territorial state's authority; the ICC is a truly supra-national authority. Even while the ICC's jurisdiction arises from the delegation of jurisdiction by the states parties," those states parties also delegate to the ICC substantial control over the exercise of that jurisdction - such that the ICC is empowered to operate as a truly separate and distinct international entity. This is manifested in a variety of ways. First, under the terms of the ICC Treaty, the ICC is the ultimate judge of whether the territorial state has genuinely exercised jurisdiction over a case. If the ICC concludes that the territorial state's exercise of jurisdction has not been genuine, then the ICC may exercise jurisdiction, even over the objection of that state. So, in a dispute over jurisdiction between the territorial state and the ICC, the ICC has authority, superior to that of the territorial state, to override the territorial state's claims and seize jurisdiction.

See ibid. at Art. 12. 8 For a number of articles on the controversial topic of ICC jurisdiction over non-party nationals, see Symposium, 'The United States and the International Criminal Court', 64 Law e9 Contemporay Problems (2001) 1. 9 See Madeline Morris, 'High Crimes and Misconceptions: The ICC and Non-party States', 64 L a w e9 Contemporay Problems (2001) 13, at 26-52. 7

112

Finnish Yearbook ofIntemational Law (Vol.XII, 2001)

The governance structure of the ICC also reflects the truly supra-national nature of the ICC7sauthority. The ICC is governed by its Assembly of States Parties (composed of a representative from each state party). The Assembly of States Parties controls both administrative and substantive matters including, for example, changes to the Elements of Crimes (that is, the legal defLnitions of the crimes within ICC jurisdiction). The Assembly of States Parties governs by majority (or supermajority) rule. Therefore, in any particular prosecution, the ICC may be applying rules and law that were decided upon by a majority or super-majority of the ICC7s member states, over the drssenting vote of the state on whose territory the particular crimes occurred. T h d , the ICC will have influence and law-making authority beyond that of the territorial state or, for that matter, that of any state. The ICC, like the International Court of Justice, will have the power to shape and make international law to a degree far exceedmg that of any state's domestic courts. (As I will argue, this law-making capacity is central to the democratic deficit of the ICC.) In these respects, and many more, we see that the ICC is not in any simple way the agent or delegee of the territorial state.10 It is a separate and distinct international institution. The jurisdiction of the ICC has been designed to provide a supra-national solution to the problem of national transgressors. And this is a genuine innovation.

The ICC's Democratic Defect The Conflict with Principles of Democratic Governance There is a feature of the ICC as an innovative international institution that has gone curiously unexarnined. A supra-national judicial authority has been created; but there has been virtually no examination of its democratic legitimacy. In contrast to the case of the World Trade Organization (WTO), for instance, where a so-called 'democratic deficit' has been a focus of debate, in the case of the ICC, a powerful new international institution has been created with virtually no discussion of the democratic features of this new power. The ICC will wield governmental authority. As a judicial body, it wdl prosecute and punish indwiduals and will shape and make law. Where is the democratic linkage between this institution of governance and the governed? For nationals of states that are parties to the ICC Treaty, their representation comes through their

For a full examination of the transforming effects of the delegation of jurisdiction from a territorial state to the ICC, see ibid.

'0

The Disturbing Demouatic Defect ofthe International Criminal Coulit

113

own governments' consent to the treaty, and continues through their governments' participation in the Assembly of States Parties. l1 What, then, about non-party states? What is the democratic basis for the ICC's power as applied to populations whose states have not consented on their behalf? Here, the ICC's claim to democratic legitimacy breaks down. There is no democratic linkage between the ICC and those non-party nationals over whom it would exercise authority. Why, then, have we heard no clamor - indeed, no discussion - of democratic legitimacy in relation to the ICC? Why has there been virtually no discussion of democracy relative to the ICC, even whde the 'democratic deficit' of other international institutions, like the W O , has been a cause ckkbre? The reason is comprehensible. The mandate of the ICC is viewed as being very thin and very important. The unarticulated assumption seems to be that, if ICC jurisdiction over-non-party nationals entails any democratic loss at all, it is de minimus -because the court's mandate is so narrow. The implicit reasoning is: first, that the ICC's jurisdiction over non-party nationals is an exception that gives the ICC authority to act only when states fad to do so; and second, that the exception to states' prerogatives is a thin one because, unlike the W O , the ICC is not intended to make law and policy. Rather, its mandate is to apply clear, uncontroversial - indeed jus cogens - precepts of existing international law. Genocide, war crimes, and crimes against humanity are crimes. Nobody debates that, so there is no democratic or undemocratic decision-making to discuss. Here, though, the reasoning fails. Although the prohibitions of genocide, war crimes, and crimes against humanity are unquestionable, applying that law in particular cases will turn out to be complex and politically fraught. Crucial questions about the content and interpretation of the law inevitably d be decided by the ICC, notwithstanding the excellent delmeation of the Elements of Crimes that was produced by the ICC Preparatory Cornmission.l2 For example, there is a war crime of 'causing excessive incidental death, injury, or damage.''3 Are states, therefore, obliged to minimize collateral damage by using precision-guided munitions rather than using the much less expensive ordinary kinetic weapons? Are states obliged to minimize collateral damage by using ground troops rather than air strikes? Relative to that same war crime of causing excessive incidental death, injury, or damage: are belligerents who have not invested in - or cannot afford - night-vision goggles prohibited from For states paaies that are non-democratic, the 'governed' are not represented by their governments the ICC or anywhere else. But this is a separate problem. 12 Report of the Preparatory Commission for the International Criminal Court, Addendum, Part 11, Finalized draft text of the Elements of Crimes, adopted 2 November 2000, UN Doc. PCNICC/2000/ 1/Add. 2. 13 Ikd, at Art. 8(2)(b) (iv).

- either in

Finnish Yearbook: oSlntemationallazv (Vol. XI, 2001)

114

fighting at night, because some collateral damage could be avoided with the goggles? Relative to the crime of genocide:l4 what is the mens rea required for command responsibility for genocide? Where the commander knows of his subordinate's genocidal intent, but does not entertain that mem rea himself, does he have the necessary mens rea for a conviction for genocide? Relative to the war crime of 'attacking civilian objects7:15what is the status of 'dual use' targeting, where the target is an object, such as a bridge, or television station, or electrical grid, that is partly in mhtary use and partly in cimhan use? These are not thm questions. Each involves areas where the law is indeterminate and the politics are weighty. These questions do not require anythmg like the 'mere' 'application of the law to the facts.' The questions implicate enormous political, and even moral, issues and controversies. The questions go to the size of military budgets, determining how much of a country's domestic fisc must be spent for a given degree of military strength; to basic issues of North/South politics; to the question of which countries can afford to fight with which allies in coalitions; and to what d be the cost of warfare, includmg humanitarian interventions. And that only describes the situation as it stands now. The ICC's subject-matter jurisdiction is going to get broader, not narrower. The ICC Treaty stands open to amendment, modification, extension, and the defifiition and redefmition of existing and future crimes. This is contemplated explicitly in the document itself. For instance, the ICC Treaty provides that the crime of aggression will come within the ICC's active juris&ction in the future, when the Assembly of States Parties have amended the Treaty to define 'aggression.'l"hat matter is specified to be among the topics of a review conference to be convened seven years after the treaty comes into effect." Beyond the crime of aggression, the Final Act of the Rome Conference (at which the ICC Treaty was negotiated), in Resolution E, states that the Rome Conference, Afhrm[s] that the Statute of the ICC provides for a review mechanism, which allows for an expansion in future of the jurisdxtion of the Court, [and] [rlecornmends that a Review Conference . . . consider the crimes of terrorism

Ibid., at Art. 6. at Art. 8(2) @) (ii). 16 See sqra note 3. Amendment of the jurisdictional provisions of the ICC Treaty requires ratification or acceptance of the amendment by 7/8 of the states parties to the treaty. ICC Treaty, sqra note 1, at Art. 121 (4). '7 See ibid., at Arts 5 and 123. 14

15 Ibid.,

The DifturbingDemocratic Defect ofthe Intematiional Criminal Court

115

and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.lg

These foreseen and other, unforeseen alterations and expansions of the ICC's domain would all occur with no representation of the nationals of non-party states. (In fact, the ICC Treaty incorporates a particularly ironic provision in this regard. While the treaty allows states parties to exempt their nationals from ICC jurisdction relative to crimes that may in the future be added to the jurisdiction of the court, non-party states are given no such opportunity to opt out.lg) The ICC will be a feature and an organ of global governance, as it makes and applies international law and policy. If ICC jurisdiction over non-party nationals means that the ICC is, to that extent, undemocratic, the problem is not de minimus.20

The Crucial Distinction Between ICC Jurisdiction and the Domestic Jurisdiction of the Territorial State It is true that states routinely prosecute foreigners for crimes committed on the state's territory. And, certainly, those foreigners have no democratic link with that prosecuting state. But the exercise of jurisdiction by the territorial state itself is not equivalent to the delegation of that jurisdxtion by the territorial state to be exercised by the ICC. The absence of a democratic link between the ICC and the non-party nationals over whom it would exercise jurisdiction poses a categorically different sort of problem from that posed when a state prosecutes a foreigner alleged to have committed a crime on that state's territory. Because the decisions of an international court d tend to be more authoritative than would those of any individual state's courts, an international court '8 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Resolution E, adopted 17 July 1998, UN Doc. A/CONF.l83/lO. 19 See ICC Treaty, szlpra note 1, Art. 121. T o correct this anomaly, the United States has proposed that the Rules of Procedure for the Assembly of States parties should include the following provision: With respect to a crime added by amendment to the Statute pursuant to article 121, paragraph 5, the court may exercise jurisdiction only if the amendment has entered into force for both the State of nationality of the alleged perpetrator and the State in whose territory the crime was committed.' [Working Group on Rules of Procedure and Evidence, Proposal Submitted by the United States of America Concerning Rules of Procedure and Evidence Relating to Part 13 of the Statute (Final Clauses), UN Doc. PCNICC/200O/WGRPE(13)/DP.l(2000) at 2.1 This proposed rule has not been adopted to date. See generally David Scheffer, 'Staying the Course with the International Criminal Coua', 35 Cornell Tnternationa~LazvJozlrnal (2002) 47, at 81 (describing the negotiations on this issue). 20 It is true that there are other international institutions that may be considered undemocratic, particularly including the UN Security Council. But, whatever else may be said about the powers of the Security Council, those powers have been consented to by the member states of the UN in becoming parties to the UN Charter. The same obviously cannot be said of the ICC insofar as it would exercise jurisdiction over non-party nationals.

7 76

Finnish Yearbook oflntemationalla2v (Vol. XII, 2007)

would have the power to create international law in a manner disproportionate to that of any state. It is t h s exceptional law-making function, along with the lawenforcement function, that states parties to the ICC Treaty in effect accept when they accept the jurisdiction of the ICC over their nationals. By contrast, non-party states have not accepted h s form of lawrnakmg, even whde they accept the more traditional processes of international lawmaking, including incremental development through the decisions of national courts. When nationalcourts (such as the courts of the territorial state) adjudicate cases involving controversial or open issues in international criminal law, the courts of the various nations may render either consistent or divergent holdings on those issues. If the holdings are consistent, then international law will incrementally move in the hection reflected in those decisions. If, on the other hand, the holdmgs of the national courts are dwergent, then the law concerning that subject will remain open pendmg possible future resolution through fbrther state practice, negotiation and, perhaps, litigation. In this process, law-making authority is distributed diffusely among nations. By contrast, law-making by the ICC wdl involve a sipficant centralrzation of power in which one international institution will have vastly disproportionate capacity to influence the content of the law. Judgmg by prevalent responses to the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda, a single relevant decision by the ICC may frequently be taken to 'decide' controversial points of law. States might have sound reasons, based on democratic values, for preferring to retain more direct control, diffused among many states, over the shaping of international law in this critical field rather than to relegate a substantial proportion of that control to a single international entity. The development of international criminal law, like the development of other areas of international law, is a process of state consent, agreement, and acquiescence. Its development is, in that respect, a series of more or less directly negotiated outcomes in an incremental process. A state might be concerned about granting jurisdiction to an international court that inevitably would have great influence, disproportionate to that of any state, in the formation of that body of law. This concern is not raised when a state prosecutes foreigners alleged to have committed crimes on the state's territories; but it is raised when that territorial state delegates its jurisdiction to be exercised by the ICC. Because the law of genocide, war crimes, and crimes against humanity is stdl very much in formation (not to mention the law concerning additional crimes to be added to the jurisdiction of the ICC), the issue of law-making power is particularly important in this context. Controversial and politically sipficant issues remain open, and major new questions continue to emerge, as was mentioned above.21 There are, of course, ambiguities and disagreements about the content of the law in domestic settings as well. This is precisely what makes the structure of the judiciary a crucial feature of states'

The Di~turbingDemomatic Defect ofthe International Criminal Court

117

Centralized lawmaking in this field by the ICC is something that has been accepted by the states parties to the ICC Treaty. As a concomitant of their treaty participation, those states parties also have agreed to accept the application of that law to their nationals. Non-party states, by contrast, have not accepted h s allocation of law-making and law-enforcement authority.

The Non-Solution of Ratification by Non-Parties The ICC Treaty, insofar as it provides for jurisdction over non-party nationals, displaces the state as the conduit of democratic representation, and provides no alternative mechanism for democratic governance. Advocates of ICC jurisdiction over non-party nationals might be tempted to suggest that the solution to this democratic dilemma is for all states to become parties to the ICC Treaty and, consequently, to-have a vote in the Assembly of States Parties. But this suggestion would not address the fundamental, underlymg problem of consent to governance. Insofar as the states parties govern the court through voting in the Assembly of States Parties, the ICC involves a form of governance by majority (or super-majority) rule. The possibility of majority-rule in any form at the international level is a notoriously complex issue. The questions concerning global democracy - within or outside the UN system - are enormous: What is the largest scale on which democracy is feasible? Is there a meaningful demos or polity on the global level? Does a one-state, one-vote system reflect any c o m p e h g moral or democratic principles p e n the enormous variation among states in their numbers of citizens, and given the contingencies of states' formation, merger, &ssolution, federation, and the like? These questions go well beyond the scope of this essay. What is clear, however, is that, even if it were possible to have a meaningful international polity on some thin set of issues, the issues within the jurisdiction of the ICC will inevitably not, in practice, be thin. States therefore make a weighty choice - and are entitled to make a real choice - in deciding whether to participate in a system of centralized adjudication and one-state, one-vote governance on these issues. The offer to non-party states cannot be: you enter into this new system of decision making with us - or, if you do not, then we will simply govern you without your consent or representation. A system based on the consent of the governed requires that consent be meaningful, that is, that it be optional, that there be the alternative of not consenting.

constitutional designs. What is at issue in the ICC context is whether the judicial structure being proposed -which will then play an inevitably influential role in shaping the law - is acceptable to those who have been asked to join in constituting and accepting the jurisdiction of that judicial power.

l18

Finnish Yearbook oj-InternationalLaw (Vol. XII, 200 l )

Conclusion The ICC Treaty seeks to make important headway in ensuring the accountability of perpetrators of genocide, war crimes, and crimes against humanity. But it does so at a cost to the democratic legitimacy of the ICC itself. One might argue that it is worth sacrificing our democratic values to prevent or reduce genocide, war crimes, and crimes against humanity. But we must soberly confront the fact that the International Criminal Tribunals for the former Yugoslavia and Rwanda seem to have done little to halt the atrocities. Indeed, crimes continued unabated in both regions even while the tribunals were under way. Perhaps a permanent international court, rendering decisions over a period of years, would have greater effect. Perhaps not. As heartrending as the crimes are, and as deeply as we wish to stop them, we should be hesitant to endorse a system with clear democratic flaws when its benefits remain so speculative. Two fundamental values are in tension here - the value of freedom from violent abuse and the value of representative government. Neither should be sacrificed. The abuse and suffering of innocent men, women and children should not be countenanced. And neither should the erosion of democratic governance. Indeed, the two are joined; it is typically the erosion of democracy that leads eventually to violent abuse. It would be a mistake to think that this dilemma could be easily negotiated away. We have yet to grapple successfully with the two-fold demands of justice and democracy in an emergent international system.

Juridical and Jurisdictional Disconnects Mark A. Drumbl*

The Complexity of Atrocity, the Simplicity of Criminal Law There is a trend toward judicial responses to mass atrocity. This trend stems largely from the efforts of international lawyers and activists to establish criminal prosecution as a presumptive and preferred response following mass atrocity.' The trend has its roots in the Nuremberg and Tokyo Tribunals as well as the 1948 Genocide Convention, and is reflected in the Rome Statute of the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR), and UN attempts to coordmate international prosecutions in Cambodia. Although this trend operates internationally, it is manifested at the national level through the doctrine of complementarity. A c c o r h g to thts doctrine, national courts are given initial jurisdiction over alleged offenders, but d lose that jurisdiction if they are unable or un&g genuinely to prosecute. The doctrine of complementarity thus embeds the influence of the criminal justice model. The end result is a uniformity of response that - particularly if externally imposed on a post-

Assistant Professor, School of Law, Washington & Lee University. I would like to thank Chandra Lekha Srirarn, Brad Roth, and Paul Berman for helpful comments, and Kathryn C. Fitzhugh of the University of Arkansas at Little Rock for excellent library assistance. 1 For advocacy of this approach, see, e.g., Antonio Cassese, 'Reflections on International Criminal Justice', 61 Modem Law Review (1998) 1-10; Antonio Cassese, 'On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law', 9 European J o m a l of International Law (1998) 2-17; Christopher Joyner, 'Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability', 26 Denver Journal of International Law and Politics (1998) 591-624; Gabrielle Kirk McDonald, Address to the United Nations General Assembb (November 1998), <www.un.org/icty/pressreal/speechP.htm> (visited 15 August 2002); Alex Alvarez, Governments, Citixens, and Genocide (Indiana University Press: Bloomington, IN, 2001) at 150; Hansjijrg Strohmeyer, 'Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor', 95 American Journal oflnternational Law (2001) 46-63, at 60-63; Jonathan D. Tepperman, Truth and Consequences', 81 Foreign AJair~ (March/April2002) 128-145 at 129,143. *

Finnish Yearbook OfIntemationaj law (VoL XII, 200 1) conflict society2- may relegate to a subordinate status the specific contextual characteristics or needs of that society.3 This uniformity of response risks downplaylng the need for individuated approaches that reflect the social and cultural geographies of the afficted society. This presumptive response anchored in the criminal justice paradgm recently has migrated to a h d level: foreign national prosecutions. National judiciaries are relylng - cautiously, haltingly, albeit with some frequency - on universal or treaty jurisdiction to prosecute foreigners for human rights abuses. Universal jurisdiction entitles a state to initiate proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator(s) or the victim(s).4 Criminal courts in Belgium, Germany, Switzerland, Spain, and France have asserted universal jurisdiction over a variety of alleged gross human rights abusers.5 The offender may or may not be present in the prosecuting state (at least for the issuance of the arrest warrant or summons); also, the state of which the accused is a national may or may not support the prosecution.6 International legal institutions often exert primacy over their domestic counterparts, even when prosecuting the same category of offences and offenders. This is the case with the ICTR and ICTY. In the past, the ICTY has rejected requests to transfer some of its cases to national courts in the FRY or to conduct its own trials in the territory of the FRY. See Report on the Operation of the International Tribunal for the Former Yugoslavia, UN Doc. A/55/382-S/2000/865 (2000). However, very recently some indications are emerging that both the ICTR and the ICTY may become more open to holding proceedings in situ or in conjunction with national courts, although not just yet. See ICTY Press Release F.H./P.I.S./572e (8 March 2001); ICTY Press Release JL/P.I.S./542e (24 November 2000); ICTR/INFO-9-2-254.en (13 December 2000); ICTY Press Release JD/P.I.S./641-e (27 November 2001). Chief Prosecutor Del Ponte states: 'I would not, however, be ready to hand over prosecution of my cases to national courts as they now operate'. ICTY Press Release GR/P.I.S./642-e (27 November 2001). See also ICTY Press Release JdH/P.I.S./671-e (24 April 2002). 3 This approach often has placed international institutions in conflict with domestic political or legal institutions. Such conflicts have occurred in Rwanda, the FRY, and in attempted international prosecutions in Cambodia. 4 International Law Association Committee on International Human Rghts Law and Practice, Repod of the Jixp-Ninth Conference (London, 2000) at 404. See generally, Kenneth Roth, 'The Case for Universal Jurisdiction', 80:5 Forezgn A$;ris (2001) 150-154. 5 International Law Association, R@ort, sz,pranote 4, at 426-430; see also Menno T. Karnminga, Zessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses', 23 Ht/man RzghtsQztatferh (2001) 940-974 at 940-41. Sitting or former Ministers or Heads of State may raise defenses of immunities to charges, but this does not vitiate the underlying exercise of jurisdiction per se. See discussion infra note 63. 6 The French Code of Criminal Procedure, for example, provides for prosecution of certain offenses committed elsewhere when the accused is present in France. In N9ontexe v. Pubdc Prosecutor, a Swiss decision issued on 27 April 2001, a Rwandan national was convicted for war crimes committed in an internal armed conflict. See Luc Reydams, 'N9ontexe v. Pz/bhc Prosemtor. Tribunal rnilitaire de cassation (Switzerland), April 27, 200lY,96:l American Jot/mal oflntemational Lazv (2002) 231-236. The Rwandan government fully supported the Swiss proceedings after Switzerland refused to accede to the Rwandan government's request for the defendant to be extradited to Rwanda. 2

Juridical andfirisdictiona/ Disconnects

121

Treaty jurisdiction involves national consent by way of treaty that obligates states parties to prosecute offenses wherever these may be committed or to extradite to a state more closely connected to the breach that is wrllrng to prosecute. Such jurisdiction was recently exemplified in the case of former Chilean dictator Augusto Pinochet Ugarte, whom the UK House of Lords held extraditable to Spain to face charges for instances that occurred after ratification of the Convention Against Torture by Spain, Chile, and the UK. Although dominant, rhts prosecutorial model is not monolithic. Within preexisting institutions such as the ICTY and ICTR there recently has been some reform, &dicating that officials have warmed slightly to the possibihties of 'restorative justice' approaches and local initiatives.' Moreover, newer international justice initiatives - for example the Special Court for Sierra Leone and the UNassisted local tribunals for Kosovo - have been more sensitive to local context and, hence, appear somewhat more pluralist in structure, process, and form (although these initiatives remain firmly planted within the criminal justice paradigm). The development of a UN-created truth commission for East Timor (which incorporates East Timorese nationals and community-based approaches) may signal the beginnings of a much-welcomed paradigmatic dwersity.8 However, this commission is designed to 'complement' and not 'replace' national or international prosecutions,9 thereby preserv&g the presumptive position of trials within the hierarchy of post-conflict justice mechanisms. This complementary status - which in practice may well imply a subaltern status - explicitly has been accorded to the Yugoslav Truth and'ReconciliationCommission by ICTY officials. This article, through a case study of Rwanda, explores difficulties that arise when trials -whether national, international, or foreign - are used as a central response mechanism in the aftermath of mass atrocity. Drawing from my experiences as a public defender in Rwanda, this article expresses some skepticism regardmg the deterrent and institution-budding effects of prosecutions, as well as the salutary effects of these prosecutions on nation-building and reconciliation. The cause for skepticism increases as trials become culturally, methodologcally and 7 See discussion szcpra note 2 (on holding proceedings in situ or in conjunction with national courts). There also have been recent attempts to involve victims in the ICTR and ICTY process and to involve some reparative or restorative justice notions. For example, the ICTR has (together with some Rwandan non-governmental organizations) developed a support initiative in Rwanda for witnesses and potential witnesses, and has established a public information area and library in Ktgali to instruct on the work of the ICTR. See ICTR/INFO-9-2-241.en (25 September 2000); ICTR/INFO-9-2-242.en (26 September 2000). ICTR and ICTY judges also have made proposals to provide for compensation to victims, although these do not yet appear to be in force. 8 UNTAET Regulation 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (13 July 2001). 9 Carsten Stahn, 'Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Commission for East Timor', 95 American Jomal of Internatonal Law (2001) 952-966 at 953, 954, 960. Nor are the community-based mechanisms applicable to the criminal proceedings. Ihd at 964.

122

(Vol. XII, 2001) Finnish Yearbook ofIntemational LW

physically distanced from the afficted society. In particular, h s article will assess the implications of addressing mass atrocity extraterritorially, and frequently far from the place of the crime, along with the impact of frequent use of prosecutors and judges of a nationality different from that of the defendants.10 The critique of externalized justice transcends the traditional invocation of political realism or the exhortation of comity among nations," and stnkes instead at the heart of the legal theories that underpin much of the criminal law itself. In part, this derives from concern - as posited by Hannah Arendt and Mark Osiel, for ex~mple- over the suitability of the criminal law as a societal response to mass atrocity.12 Assuredly, if international law mandates a duty to prosecute certain gross human rights violations, then extraterritorial trials may in some cases be the only way to satisfjr this duty. This article therefore pragmatically considers how, in such cases, extraterritorial trials can be made more 'real' to post-conflict societies.

Rwanda Mass Violence Rwanda's Hutu government attempted to wipe out the Tutsi population of the nation in the spring and summer of 1994. Approximately 800,000 people (ten percent of the Rwandan national population) were murdered.13 Although elements of the majority Hutu ethnic group orchestrated the violence against the minority Tutsi group,14between 10,000 and 30,000 Hutu also were slain. But, whereas these Hutu were killed as individuals and because of their politics, the Tutsi were killed as a group and because they were Tutsi. The Hutu government of JuvCnal Habyarimana, which had ruled Rwanda since 1973, progressively exploited and politicized inter-ethnic tensions that had been 10 See generally, Chandra Sriram, 'Truth Commissions and Political Theory: Tough Moral Choices in Transitional Situations', 18 NetherhndrQuarter- ofHman Rights (2000) 471-492. James P. Sewell, 'Justice and Truth in Transition', (review essay) 8 Global Governance (2002) 119-134 at 130 (citing comments by Ruth Wedgwood). 12 Hannah Arendt, Eicbmann inJemsaZem: A Report on the Banad5 o f E d (Viking Press: New York, 1964); Mark J. Osiel, M m Atrocity, Ordinary Evik and Hannah Arendt (Yale University Press: New Haven, 2001); David Wippman, 'Atrocities, Deterrence, and the Limits of International Justice', 23 Fordham Intemationalr Lazv Journal (1999) 473-488. 13 Gkrard Prunier, The Rwanah Crisi: History ofa Genocide (Columbia University Press: New York, 1995) at 261, 265; Philip Gourevitch, We wifh to infom~outhat tomorrow we will be klrled mth ourfamides: Stories from &an& (Farrar, Straus and Giroux: New York, 1998) 4,133. 14 The Hutu comprise approximately 85% of Rwanda's population (estimated at seven to eight million), the Tutsi 14%.

Jmidical andJztm'sdictional Disconnects

123

simmering since Rwandan independence in 1960. The history of these tensions reaches back to the colonial period, during which the Tutsi essentially became ahed with the colonial settlers. Over time, the Hutu began to perceive the Tutsi as colonial settlers themselves; these perceptions, a c c o r h g to Mahmood Mamdani, led to the construction of the Tutsi as non-natives.15 In the early 19907s,anti-Tutsi sentiment was catalyzed by d t a r y action undertaken within Rwanda by Tutsi armed forces based in Uganda. Following Rwandan independence, many Tutsi, fearing actual or prospective reprisals, left Rwanda for Uganda. There, these Tutsi maintained a political party, the Rwandan Patriotic Front (RPF), whose armed forces were called the Rwandan Patriotic Army (RPA). Although repelled, the RPA's unsuccess~linvasion of Rwanda in the early 1990's prompted Habyarimana to at least pay lip service to the need for power sharing among ethnic groups and political parties. This coaxed the conclusion of a tentative power-sharing arrangement, called the Arusha Accords Habyarimana was kdled in a plane crash on 6 A p d 1994. Although the Hutu government charged that the plane was shot down by the RPA, there is evidence that it was shot down by extremist Hutu who were suspicious of Habyarimana's apparent power-sharing reforms. In any event, a radical clique of Hutu militants immediately succeeded Habyarimana. The genocide erupted that same day, although h s group of Hutu extremists had plans in the works for months. The RPF was the only entity that actively sought to stop the genocide. It did so essentially without assistance from the international community. In fact, international peacekeeping efforts were weak and ineffective and have since been derided within Rwanda as cowardly. In the summer of 1994, the RPA once again invaded Rwanda. The armed forces of the Hutu r e p e could not repel the RPA, in part because of their efforts &ected at Tutsi civilians. By July of 1994, a new r e p e , led by the Tutsi-dominated RPF, took power, where it remains.1~There is evidence that the RPF r e p e committed human rights abuses during and following its acquisition of power, including its d t a r y intervention in the Democratic Republic of Congo.

Legal Gridlock Post-genocide trials in Rwanda operate at three levels: national, international, and foreign. The RPF government currently imprisons approximately 110,000 genocide suspects -roughly ten percent of the adult male Hutu population - in j d s

l5 '6

Mahmood Mamdani, When Victims Become Killers (JamesCurrey: Oxford, 2001) at 16,190. Gourevitch, W e wish to infomyozl, szgra note 13.

724

Finnish Yearbook oflnternationalLW(Vol. XII, 2001)

designed to hold 15,000. Approximately 6,000 individuals have thus far been tried under the Organic Law, a domestic statute specially enacted in 1996 for the prosecution of genocide-related offenses. The ICTR, established by the United Nations Security Council in 1994 and located in Arusha (Tanzania), currently has about fifty-five genocide suspects in custody and, after spendmg nearly $200 million, has convicted eight people and acquitted one (some of these verdicts remain subject to appeal). A number of trials remain ongoing. ICTR proceedings, while striving to adhere to Western 'rule of law717 notions, have been slow, expensive, restrictive, and regularly criticized as illegitimate throughout Rwanda. Among the critics is the Rwandan government, which initially had voted against the creation of the ICTR. Notwithstanding this initial opposition, the Rwandan government cooperates with the ICTR, although there have been a number of conflicts and tensions. The ICTR 'has also been dogged by scandals including the discovery that genocide suspects themselves were on the tribunal's payroll as defence-team investigators'.l8 On the positive side, ICTR trials have helped raise international awareness of what happened in Rwanda in 1994, have developed an historical record, and have furthered the development of international human rights law (for example, in the area of gender violence and the definition of genocide). However, the main beneficiary of the ICTR arguably has been the international community, and not justice in Rwanda per se. Third, some foreign states have tried perpetrators of the genocide. These rcials have largely stemmed from the exercise of universal jurisdction.

'7 That 'rule of law' is Western' is a highly generalized notion. I recognize that the use of this notion may be clumsy and, in the least, simplistic. However, it remains that the staples of rule of law as exercised through the retributive criminal trial -the right to counsel, due process protections, complicated evidentmy machinery, and other features found in Article 14 of the International Covenant on Civil and Political Rights - are rooted in Western rights discourse, which now has been globalized (but not necessarily universalized) through international human rights law. This is not to say that there is necessarily a firm demarcation between such rights and local legal cultures. In fact, in many places there are indigenous human rights communities that may work hard for the implementation of rule of law in domestic legal systems. To be sure, Western legal thinking is not homogenous. For example, Western culture provides challenges to retributive criminal justice. After all, the Western psychoanalytic tradition has influenced truth and reconciliation commissions. However, what remains to be seriously interrogated is whether Western rule of law implemented through retributive criminal processes presumptively will bring more justice, more peace, and more reconciliation to post-conflict societies than would potentially divergent local initiatives. 'Search for speed and reconciliation', The Economist, 6 October 2001, at 48.

Juridical and Jum'sdictional Disconnects

125

Achievements of Genocide Trials in Rwanda My experience in Rwanda is that although all three layers of criminal trials have acheved something, they actually have not done much to effect justice, promote national reconciliation, and create overarching narratives regarding the evil of the genocide.19 Moreover, trials in Rwanda essentially have failed to produce a sense of indwidual responsibility or blameworthiness among prisoners. h o s t all of the prisoners I interviewed did not believe they drd anything 'wrong', or that anything really 'wrong' happened in the summer of 1994; many prisoners who acknowledge that violence took place believe it was necessary out of self-defense.20 Similar claims are made by ICTR detainees (even following their trials), although there have been some confessions and a h s s i o n s of responsibility.21 As a general rule, the trials, or the prospect of facing trial, have faded to produce shame, contrition, regret or remorse among the prisoners. Instead, what has emerged is emphatic denial. For Hannah Arendt, writing about the prosecution of Adolf Eichmann for crimes 19 Others echo these findings. Girard Prunier finds that 'ethnic relations are based on mutual fear, lies, unspoken prejudices and continued stereotyping'. Prunier, Rwanda Crisis, ~ttpranote 13, at 389. Neil Boisen remarks that, among Hutu, there is a '[nlearly universal and overwhelming sense of injustice'. Neil Boisen, F o m Grottp Stzr4 &port: Knowledge, Attitzrdes and Practices Among Inmates ofRwandan Detention Fan'lities Accused of Crimes of Genocide (US Institute of Peace: Washington D.C., 1997). Stef Vandeginste concludes that '[ilt is a widely shared perception . . . that victor's justice is being done'. Vandeginste, 'Rwanda: Dealing with Genocide and Crimes against Humanity in the Context of Armed Conflict and Failed Political Transition', in Neil Biggar, (ed.), Bzrying the Past (Georgetown University Press: Washington, D.C., 2001) 223-253 at 245. Jeremy Sarkin observes that the use of the legal system has led to increased human rights violations, anger, and distrust of the system among both victims and accused'. Sarkin, 'The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda', 21 H m a n Rights Q~arterh(1999) 767-823 at 771. Specifically referring to the Rwandan proceedings, Martha Minow concludes that 'rather than ending the cycles of revenge, the trials themselves were revenge'. Minow, Between Vengeance and Forgiveness: Facing Histoy Ajer Genocide and M m Violence (Beacon Press: Boston, 1998) at 124-125. 20 This analysis is derived from my experiences as a public defender in Rwanda with the nongovernmental organization Legal Aid Rwanda. From February to July 1998, Legal Aid Rwanda interviewed 450 prisoners awaiting trial on genocide-related charges. The interviews took place in the central prison of where these detainees were (and still are) incarcerated pending trial. See Mark A. Drumbl, 'Rule of Law Amid Lawlessness: Counseling the Accused in Rwanda's Domestic Genocide Trials', 29 Colmbia Htlman Rights La2v Reuiew (1998) 545-639 at 604-609. Others share these experiences. See e.g., Gourevitch, We wish to infomyozr, sttpra note 13, at 244,305; Prunier, Rwanda Crisis, sttpra note 13, at 389; Boisen, Focus Groq Stzr4, sttpra note 19, at 25; Sarkin 'Necessity', s e a note 19, at 772; African Rights, Confessing to Genocide: Responses to Rwanda? GenoGide Lazv (2000) (discussed at <www.allafrica.com/stories/printable/200006300061.h at pages 3 and 9 of the website, visited on 27 May 2001). In the end, though, there is plenty of talk either denying the genocide or denying one's role in it, but little talk about any individual regret, remorse, or responsibility. 21 One example is Alfred Musema, an influential businessman convicted by the ICTR of genocide and crimes against humanity, who was found by the ICTR never to have shown remorse despite his having knowingly and consciously participated in the atrocities. See Prosecator v. M~sema,Case No. ICTR-9613, paras 99l,lOO8 (17 March 2000).

126

Finnish Yearbook ofInternational law (Vol. XII, 200 1)

committed during the Nazi Holocaust, this would not necessarily be surprising: if massacre was not manifestly illegal22 at the time it was committed, why should it retroactively become perceived as manifestly illegally just because criminal prosecutions are implemented? No less than Eichmann, the Rwandan detainees 'may be very dfficult to grasp juri&cally723gven that, to some extent at least, they were, like Eichmann, 'law-abidmg citizen[s] of a criminal state',24 'the "normal" representatives of a pathological society7.25When these individuals face retrospective criminal sanction, particularly from afar, the process may not be particularly meaningful, nor may it create what Mark Osiel suggests is the best guard against future atrocity, namely 'the thinking, judgmg citizen who is able and willing to question unjust authority7.26 There is an extensive literature on the strengths and shortcomings of judicial responses to mass atrocity. This literature examines the ability of trials to promote justice, deterrence, reparation, and reconchation; problems inherent in the selective nature of those chosen to face trial; the types of historical narratives created by trials; institutional and structural factors such as cost and speed; the possibility that trials may reflect victor's justice or may become show trials; the effect of trials on victims; and whether trials capture only individual gullt, thereby leaving collective responsibility unaddressed. In the Rwandan context, two shortcomings are of particular sipficance: the limited role of the genocide trials as mechanisms of political transition; and the fact that the trials may inhibit more meaningful local justice initiatives.

Trials and Political Transition Trials in Rwanda appear to hinder the emergence of a shared political compact, a departure from the perverse politics of ethnic duality, and the development of a sense of Rwandan comrnonality and citizenship that supersedes ethnic attachments to Hutu and Tutsi. Until these psychological transformations occur in individual Rwandans, and untd political institutions are created to implement consociational or ethnically shared governance, peace in Rwanda will remain elusive. In fact, civic nationahsm, ethnic contracts, power-sharing, vibrant civil society, and a multi-ethnic An act is manifestly illegal if its illegahty immediately can be identified by any reasonable person in any and all circumstances. There is a natural law element to manifest illegahty, namely that some acts are deserving of criminal punishment wherever and whenever committed. 23 Arendt, Eicbmann in JemsaZem, szrpra note 12, at 289. 24 Ibid. at 24, 149. 25 David Schoenbaum, Hitler? S o d Revol~tion(Doubleday: Garden City, N.Y., 1966) at 287 (attributing to Arendt). 26 Osiel, Mass Atrobp, Or&nay E 4 szrpra note 12, at 150. 22

Jztridical and Jztmsdictional Disconnects

127

consociational apparatus may prevent the re-emergence of genocide. As such, they should be a primary policy goal, particularly in Rwanda where a responsible majority must exist alongside a savaged and defensive minority. But, instead, the politics of ethnicity remain intractable, fueled in part by the extensive incarceration of 110,000 detainees, on the one hand, and the concentration of political power in the hands of fearful Tutsi, on the other.27 So long as a sense of civic identity remains undeveloped, ethnocracy wdl persist in Rwanda and the prospects for a consociational political culture, not to mention eventual majoritarian democracy with protection of individual and minority rights, will remain dim.28

Shackling Traditional Justice I have argued elsewhere that certain characteristics of the Rwandan violence suggest that restorative justice initiatives may hold promise.29 This, in turn, suggests that retributive, punitive trials may not be the best mechanism to reconstruct social norms or promote peace, reconchation, and justice.30 In a restorative justice paradigm, criminal violence is viewed primarily as an injury to individuals and communities, and only secondarily as an injury to the state or international order. Under this paradigm, the purpose of legal intervention is to establish peace in local communities by repairing injury, encouraging atonement, promoting rehabilitation, and, eventually, facditating reintegration. The focus is on needs and responsibdity, community involvement, and preparing for the future instead of sorting out the past (although the restorative justice model r e c o p e s that to some degree a healthy future depends on learning from the past). The Rwandan government has also sought to utilize traditional communitybased dspute resolution. In October 2000, it passed legislation establishing local

Vandeginste, 'Rwanda', szpa note 19, at 245-46. See also Mamdani, When Victims Become KiIIers, sqra note 15, at 271-272; H m a n Rzghts Watch, World Repozt 2001 (Rzvanda), available at (visited 26 June 2001). 'Rwanda has not yet successfully conducted a political transition process aimed at power sharing, inclusiveness, and better governance'. Vandepste, 'Rwanda', szrpra note 19, at 224. See also ibid. at 228. 29 Rwanda is what I have called a dualist postgenocidal society, where in the aftermath of genocide both victim and aggressor must live unavoidably side-by-side within the same nation state, occupy the same territory, and share common public spaces. See Mark A. Dmmbl, Tunishrnent, Postgenocide: From Guilt to Shame to Civis in Rwanda', 75 New York Uniuersizj LAW Review (2000) 1221-1326. 30 Restorative justice 'is sadly lacking in much Western legal tradition'. Donald Shriver, m e r e and When in Political Life Is Justice Served by Forgiveness? in Biggar, (ed.), Btrtyng the Past, supra note 19, 23-39, at 32. Restorative justice initiatives characteristically involve less formalized or non-adversarial dispute resolution, reparations, truth commissions, public mediation, and aggressors working with victims following 'sentence'. 27

I28

Finnish Yearbook of International ldzv (Vol XI& 2001)

participatory justice tribunals, called gacaca in Kinyarwanda;31 these began to function in June 2002.32 Gacaca historically has been used as a method of dispute resolution in Rwanda. Its principal focus has been property crimes, but gacaca also has been used to medate more serious crimes, though its implementation to genocide remains somewhat unprecedented. The gacaca tribunals are composed of elders and 'people of integrity' (In~yangamugqo) elected from local communities throughout Rwanda.33 Twohundred-and-sixty thousand such inchviduals were chosen in October 2001.34 Suspects are to be brought to the villages where they are said to have committed their crimes to be adjudged by gacaca panels also composed of individuals from that area. There d be 11,000 panels in total. Given that in many cases the accused also will be from the same village, gacaca truly is an exercise in community-based justice. 'The objective . . . is to restore harmony and social order . . . and to reincorporate the person who was the source of the chsorder7.35Accordmgly, sentences vary, but could include travail d'inte'rtt ge'ne'ral (community service).36 Gacaca d not have jurisdction over the planners, organizers, instigators, supervisors, and leaders of the genocide, all of whom are to be prosecuted more formally in court. Although the gacaca proposal has been subject to considerable criticism by international lawyers and activists, there is evidence that it is favorably viewed by Rwandans.37 Many of the criticisms of the gacaca proposal lament its alleged lack of conformity with rule of law: defense counsel is not available, there are limited appeal

31 See Rwanda/Jzldce, <www.hirondelle.org> (visited 19 January 2001). Community-based informal justice focusing on reintegrative shaming has a long history throughout Africa and takes various names and forms (i.e., hkgotka in South Africa). 32 'Traditional courts revived in Rwanda', USA T o e , 19 June 2002, at 8A. 33 Traditionally, 'elders' in Rwanda were old men of the village regarded as wisely mediating between victim and perpetrator. But the current Rwandan population consists of fewer older men. As a result, women and younger people will have to be more involved in the gacaca process. Moreover, there also is concern that refugee movements, mass W n g s , and internal displacements have destroyed so many communities that the notion of community-based justice such as gacaca now is anachronistic. Vandeginste, 'Rwanda', stcpra note 19, at 240. 34 'Search for speed and reconciliation', sqra note 18. 35 Vandeginste, 'Rwanda', stcpra note 19, at 239. 36 Tribunaux Gacaca et travail d'inttrtt general', 13-14 Refootmepinale etpindenhaire en Afn'pe (mai 2001) at 1-2 (document on frle with the author). 37 See Fondation Hirondelle News Release 149033 (13 September 2000), <www.aleanet.org/aia/ 149033> (visited 15 August 2001). But see contravandeginste, 'Rwanda', stcpranote 19, at 239 (reporting a 1996 sociological inquiry that found that people generally felt that genocide should not be dealt with by gacaca). Moreover, some survivors are concerned about the need to monitor the proceedings, especially in areas where the Tutsi community has been virtually wiped out. See African Rights, Confessing to Genocide: Responses to Rwanda's Genocide Law (Africa Rights: London, 2000) (discussed h (visited 25 April 2002)). at <www.allafrica.com/stories/printable/200006300061

Jum'dical and Jum'sdictional Disconnects

I29

rights, the decision-makers may not be impartial, search for truth might be undertaken at the expense of justice, the decision-makers have very h t e d education/training, and other basic intemational standards might not be met.38 These criticisms clmurush gacaca because it may not fully conform to Western-dnven notions of the rule of law. Although it is not incorrect to observe that gacaca may deviate from these notions, is this an observation to which much importance should be ascribed? What is the more important goal: conforming to the rule of law or, rather, developing institutions most likely to promote peace and justice in a manner compatible with local histories and values? A contextual, socio-legal approach to post-conflict Rwanda may in fact suggest that - notwithstanding how starkly dfferent it is from an institution such as the ICTR- gacaca might be more successful in attaining the goals of building justice, a shared sense of citizenshp, reconciliation, and reconstruction. After all, traditional neighborhood dspute resolution - of which gacaca is one variety - has been successful elsewhere in Africa in post-confhct situations.39 In addition, gacaca may help repair the 'spirit injury' that some analysts suggest plagues Rwandan society.40 Moreover, the more legal or juridical gacaca is pressured by the intemational community to become, the less effective it may be in stripping away the silence of complicity, barriers to shame, and resistance to the therapeutic discussion so needed to heal Rwanda. There is already some evidence that the Rwandan government is respondmg to intemational pressure to makegacaca akm to a criminal trial. By way of example, on the Rwandan government website, gacaca is described as taking place w i h 'courts', whose goal is to process 'evidence' and 'try cases', and from which there is an option to 'hear - and pass - judgment on appeaY.41 Moreover, the gacaca tribunals will have many 'nonindigenous' court-like powers, such as power to summon witnesses, issue search warrants, confiscate goods, and impose serious criminal sanctions leadmg up to life imprisonment.42 Consequently, there is a See Amnesty International, &an& The Troubled Course ofJustice, -ortA.FR 47/ 10/00, at 24-26; Comments by Avocats sans Frontikres in Rzvanda/Justice, (visited 19 January 2001). 39 See Jennifer Widner, 'Courts and Democracy in Postconflict Transitions: A Social Scientist's Perspective on the African Case', 95 American Journal of International Law (2001) 64-75 at 65-66 (discussing cases of Uganda and Somalia in addition to Rwanda). The Sierra Leone Truth and Reconciliation Commission also incorporates traditional and religious values in resolving local conflicts. Stahn, 'Accommodating', stcpra note 9, at 964. See also Priscilla Hayner, Unspeakable Truths, ConfrontingState Temr and Atmcip (Routledge: New York and London, 2001) at 192-195. This is not to say that all customary or traditional dispute resolution in Africa is inherently reconciliatory instead of retributive, but rather that many traditional approaches are reconciliatory in nature and have met with success. 40 Adrien Katherine Wing and Mark Richard Johnson, T h e Promise of a Post-Genocide Constitution: Healing Rwandan Spirit Injuries', 7 Michigan Journal ofRaceand LW(2002) 247-315. 41 See Justice and Genocide, (visited 19 January 2001). 42 See Vandeginste, 'Rwanda', stcpra note 19, at 242. 38

Fin~i~b Yearbook of Itztemational Law (Vol. XII, 2001) growing distance between traditional gacaca and the proposed gacaca tribunals. As gacaca becomes more legalistic, there may be a greater risk that, instead of offering therapeutic healing, gacaca may retraumatize victims who a f f m their suffering.43 It may also stray from the goal of constructing an historical record. Gacaca will have to maintain its distinctiveness from the criminal justice response while incorporating sufficient formalities and regularities so that it neither legitimates nor trivializes the crimes that were committed.44 This is part of a process of harmonization whereby international norms become implemented and mediated through local practices. In sum, justice as currently implemented in Rwanda largely is limited to the courtroom, and is not the broader sort of justice that includes restorative initiatives. Gacaca remains the only foreseeable alternative, although international pressure might result in the gacaca tribunals becoming as legal as possible and thereby emulating courts in process, procedure, and effect. There may be cause for concern should gacaca mimic the trials and depart from the reintegrative shaming model. If gacaca is viewed as a legal institution of the state rather than as a community-based mechanism, it may come to be seen as a tool of state power and oppression.45 More broadly, if the punitive criminal trial model becomes ingrained as the international norm, this might jeopardrze restorative or other approaches that a post-conflict government may enact nationally out of a good faith belief that non-punitive approaches may be best for that society's pursuit of transitional justice.

Externalization of Justice The focus of the legal response to genocide in Rwanda has been retributive criminal trials (whether in Europe, at the ICTR, or in somewhat modified form in Rwanda itself). As previously discussed, these have had some success in the search for justice, but this success is thwarted by the fact that much of the justice that has been effected is heavily externalized in meaning. Based upon my experiences in Rwanda, I argue that the international and foreign trials lead to a greater externalization of justice - notwithstandmg their heightened due process and legalism - than do the national trials. To be sure, the national trials are viewed with some skepticism; however, this skepticism is more attenuated than that which attaches to international and foreign trials.46 43 See Hayner, Unqeakable Tmths, szlpra note 39, at 141-144 (finding that victims and witnesses can be retraumatized by giving testimony, even at truth commissions or hearings that are less formal than trials). 44 Alex Boraine, A Coanty Unmasked (Oxford University Press, 2000) at 408. 45 Vandeginste, 'Rwanda', szcpra note 19, at 245. 46 Ibid. at 231 (reporting on the 'enormous (mental) distance between the population and the ICTR').

Jum'dical andJum'sdictionalDisconnects

131

All three layers of trials have limited meaning in Rwanda both to victims and aggressors, as well as suspects and accusers. This arises from what I would call methodological extemalixation in the case of the domestic trials (where the process that adjudges guilt or innocence, as well as the act of judging itself, has little meaning). In the case of the international and foreign trials, which are discussed in greater d e t d below, the methodological externalization is greater and is exacerbated by thepbsical extemalixation of the locus of judging and the mltziral extemalixatiolz of those doing the judging.

ICTR In Rwanda, there is a sense that international judicial efforts are somewh hypocritical gven the international community's failure to engage in effective peacekeeping or peace-enforcement that would have mitigated genocide in 1994.47 The international community's commitment to investing resources in promoting individual Rwandan accountability after genocide has occurred can be contrasted with its reluctance to commit resources to prevent genocide from occurring.48 Some have argued that instead of narrowly pursuing the g d t of a handful of Rwandans the international community should perhaps assess its own responsibility for the genocide.49 Moreover, t h s latter issue is not particular to Rwanda: s i d a r criticisms have been raised regarding the Security Council's creation of ICTY and coincident failure to protect 'safe areas' such as the Srebrenica enclave. Thus far, the questionable conduct of UN forces in Srebrenica has been the focus only of public inquiries, political resignations, and parliamentary commissions. A similar criticism also could be made of international and UN attempts to establish a tribunal for Camboha.

See Kenneth J. Campbell, Genocide and the Global Village (Palgrave: New York, 2001) at 3,79 (arguing that the US deliberately blurred the difference between civil war and genocide in Rwanda by avoiding the use of the word 'genocide' in furtherance of its policy of non-involvement, which itself is based in Rwanda's perceived lack of strategic importance); Bruce D. Jones, Peacemaking in Rwanh (Lynne Rienner Publishers: Boulder, CO, 2001) at 121 ("The withdrawal of the bulk of UNAMIR's troops from Rwanda left the population unprotected from the ginokdazi-e3). 48 Of course, having trials after the fact does not prevent people from lobbying for quicker preventative intervention in the future. 49 See Samantha Power, 'Accessory to Murder?' New York Times Book Review (11 February 2001) at 33 ('"Accountability" was a concept that the [Clinton] administration rightly pursued for the perpetrators of genocide but wrongly evaded itself'). See also Neil A. Lewis, 'Papers Show US Knew of Genocide in Rwanda', New York Times, 22 August 2001, at A5 (several senior US officials are reported to have been aware of the dimensions of genocide in Rwanda and others sought ways to avoid getting involved). 47

132

Finnish Yearbook oflnternational law (I/ol.XII, 2001)

Foreign Trials Makau Mutua argues that human rights discourse, of which the criminal trial forms an integral part, creates artificial - yet potent - constructs of 'savages' (the people and the places where atrocity occurs) and 'saviors' (those Western activists and lawyers involved in pursuing accountability).50 But the elevation to 'savior' status may simply obscure the involvement of the 'saviors' in creating the 'savage'. One example is the trial, conviction, and sentencing (to terms of 12 to 20 years) of four Rwandans (two nuns, a professor, and a factory owner) in Belgium in June 2001. These four Rwandans, who had moved to Belgium following the genocide, were charged with violations of international humanitarian law; they were convicted of homicide by a jury of twelve Belgans for their involvement in the genocide. International lawyers generally welcomed this trial, the f ~ s under t a controversial Belgian law that provides for universal jurisdction for certain international crimes.51 News reports about the trial described it as 'politically significant' because of Belgium's 'special responsibility for the killings in Rwanda7.52 After all, the history of Belgian colonial intervention exacerbated ethnic tensions w i h n Rwanda; Belgium subsequently supported the Hutu government, and ultimately pulled its peacekeepers out of Rwanda once the genocide had begun (at that point ten Belgian soldiers had been killed). This trial, largely funded by the government of Belgium has been 'seen as a way. . . to repay a moral debt to Rwanda's victims7.53Belgium thus appears as the 'savior'. Indeed, this trial had some salutary effects in Belgium. For example, it may have obliged Belgians to learn about the Rwandan genocide. Perhaps its educative effect will enable more rapid preventive action should the threat of genocide reappear in Rwanda or elsewhere in the future. Nonetheless, there a less than subtle irony in having a group of Belgians decide the g d t of innocence of four Rwandans when the trial over which this group presides does not address the collective, political, and historical responsibility of Belgium in the genocide. The irony is compounded by the fact that the jurors were required to attend a special 'crash

50 Makau Mutua, 'Savages, Victims, and Saviors: The Metaphor of Human Rights', 42 Hamard International Law JonmaZ (2001) 201-245, at 202-204. Mark Osiel makes a similar observation. In discussing the discursive practices of largely Western human rights reporting, Osiel observes that 'the true hero ultimately emerges as the invesugators themselves, doggedly pursuing painful truths in the face of perpetrators' sly evasions and the reticence of intimidated survivors'. Osiel, Mass Atrocip, Ordinary Evil, sttpra note 12, at 167. 5l See, e.g. Linda Keller, ' B e l p n Jury to Decide Case Concerning Rwandan Genocide', A I L Inszght (May, 2001) (available at <www.asil.org/insights. htm> (visited 13 August 2002)). S2 M d s e Sirnons, 'An Awful Task: Assessing 4 Roles in Death of Thousands in Rwanda', New York Times, 30 April 2001, at A3. 53 Ibid.

].midicaZ and Jum'sdichal Disconnects

133

course354to learn about the history and reality of the Rwandan genocide so that they could make an informed decision about the guilt or innocence of a handful of - to superimpose Mutua's powerful language - 'savages' from a 'savage' land while not addressing the question of their nation's complicity. With the 'savages' found guilty, the discussion putatively is closed, and Belgium's moral debt repaid. Osiel puts it well: 'The criminal law works in this very fashon, to separate, demarcate, and purify us - sweep away from sight, sound, and smell - things that, within its own conceptual system, can only appear as "fdth".'55 In this sense, it may be somewhat facile for Belgum to be described - as it was in a dissent in a recent ICJ decision as 'naive in trymg to be a forerunner in the suppression of international crimes3.56 The ndvetC may lie not in exercising universal jurisdiction too eagerly in order to prosecute extraterritorial offenses, but, instead, may be a more self-serving ndveti, as such prosecutions may obfuscate and seemingly exonerate Belgmm from its own responsibdity for these tragedies. Moreover, intercedmg valiantly on behalf of the 'civil religton357 of human rights today bears some parallels with the older colonial mission of salvation, posited by Antony Anghies* and Diane Ott059 as a principal justification for early European expansion. Today, it is globalized human rights, and the declarations and documents that articulate these rights, that assume quasi-religious status. Those states that intercede on behalf of these rights infrequently examine the history of colonial oppression, including the human rights abuses triggered by that oppression. Belgium has been involved in investigating more than 20 suspects of crimes committed in Rwanda, including a number of situations where there was no connection at all with Belgium (unlike the case of the nuns, who were living in Belgum, or cases involving murder of the Belgian peacekeepers).60 Belgan ex post preoccupation with the Rwandan genocide (which contrasts with its ex ante lethargy) has expanded beyond Rwandan nationals to include issuing an arrest warrant against the former Foreign Minister of the Democratic Republic of Congo (DRC) (which alleged that he had committed grave violations of international Ibid Osiel, Mass Atrocig, Ordnay Evil, s@ra note 12, at 157. 56 Case Concerning the Arrest Warrant of 1 1 April 2000 (Demoo-atic Reptlbh'c of the Congo v. Bekitlm), International Court of Justice, General List, No. 121 (14 February 2002), dissenting judgment of Judge Van den Wyngaert at para. 86, <www.icj-cij.org> (visited 13 August 2002). 57 Shelley Wright, International Htlman Rzghts, Decoloniah'sation and Globad~ation(Routledge: London 2001) at 1. 58 Antony Anghie, 'Francisco de Vitoria and the Colonial Origins of International Law', 5 Social and LegalJttldes (1996) 321-336. 59 Dianne Otto, 'Everythmg is Dangerous: Some Poststructural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law', 5 Azlstralin Jotlrnal o f H m a n Rzghts (1999) 17-47. 60 LUCReydams, Universal Jurisdiction over Atrocities in Rwanda: Theory and Practice', 4 Etlmpean Jotlrnal of Ctiime, Criminal La2v and CriminalJustice (1996) 37-47. 54

55

134

Finnish Yearbook:oflntemational LW (Vol. XII, 2001)

humanitarian law in inciting massacres by publicly referring to members of the Tutsi ethnic group as 'vermin' and calling for their 'extermination'.)61 In this instance, territorial connection was not required for the prosecuting magistrate to proceed.62 Although that arrest warrant eventually was found unlawful by the International Court of Justice (ICJ) upon suit by the DRC, that decision was based on ministerial immunity in extraterritorial national courts from prosecution for war crimes and crimes against humanity committed during the exercise of official duties, and did not directly address the exercise of universal jurislction in order to prosecute.63 The immediate effect of that decision is lirmted to incumbent ministers, diplomats, and heads of state, and does not pertain to other defendants.64 Other countries, for example France and Switzerland, also have heard criminal charges against Rwandans for involvement in the genocide." This externaluation of justice is thus not k t e d to just one case, but is part of a much broader phenomenon.

Universals, Particulars, and Incommensurability I am not suggesting that those extraterritorial prosecutions that have thus far been undertaken through universal jurisdiction constitute frivolous or politically motivated prosecutions. I am also not suggesting that there is in all cases a firm demarcation between local initiatives and foreign criminal trials, nor that local dspute resolution necessarily is lfferent from what I clumsily call the Western model of 'rule of law7.66Nor am I suggesting that extraterritorial or international trials are of no use. Holding some trials somewhere is frequently better than doing nothmg at all. Under certain circumstances, trials may have considerable declarative and symbolic impact. They can set standards, implement principles, create precedent, and stigmatize malfeasors. For example, international trials have been instrumental in defining gender-based violence and constructing norms regardmg Kamrninga, Zessons Learned', szgra note 5, at 940. Belgium's statute permits a Belgian court to exercise universal jurisdiction even when the suspect is not present on Belgian territory. The Belgian statute has been subject to domestic legal challenges regaiding its interface with the principle of~elg-iancriminal law that jurisdiction only can be exercised if the accused is present on Belgian territory. 63 Care Concerning the Arrest Warrant of 1I A p d 2000, stlpra note 56. This decision does not directly impugn the Belgian law, nor assess the extent to which states may adopt 'long-arm' statutes empowering their courts to prosecute through universal jurisdiction. 64 Belgium has acted under this legislation against Augusto Pinochet, Arid Sharon, Hasmami Rafzanjani, Hissene Habrt, and Fidel Castro. In hght of the ICJ decision, these proceedings now appear to be problematized. 65 International Law Association, Report, qbra note 4, at 428,430. 66 See stlpra note 17. 61 62

Jum'dical andJum'sdictionalDisconnects

135

the criminality of that violence. The fact that a human rights abuser is tried - and discredited, anywhere - means that the public can see that no one is above 'the law7,no matter how detached 'the law7may be from that public. Extraterritorial trials can be the least-bad alternative when there is no other way to encourage accountability. For example, when successor regimes have acquired power by virtue of elite accommodation with the abusive regime, and members of the abusive regxne are given full amnesty, international or foreign trials may be the only way to obtain information about the atrocities and provide a measure of vinducation to the aggneved. The attempted extraterritorial prosecution of General Pinochet is a case in point. The prosecution helped break general silence regarding the secretive, vertical nature of violence emanating from state to society in Chile. On the other hand, Pinochet's treatment by Western nations does involve inconsistencies that might appear perplexing to Chdeans. Initially, Pinochet's powergrab from Salvador Allende was supported by important Western nations; yet some 25 years later several Western countries indicted him, and one arrested him. Following this arrest, the House of Lords ruled aga.tnst Pinochet, only to reconsider following concerns about the possible bias of one of the Lords; the reconstituted House of Lords ruled against him again (although more narrowly than initially). Throughout, British Home Secretary Jack Straw refused the democratically elected Chilean government's request that Pinochet be returned to Chile on comity grounds. But, following - and in spite of - the adjudication, Straw also refused to extradite Pinochet to Spain, the country pursuing the indictment. Instead, he decided to exercise his executive discretion and return Pinochet, for health reasons, to Chile. The complex history of the case suggests that what we may view at home as a valiant attempt to pursue rule of law may appear inconsistent and confusing from afar. One of the stronger arguments in favor of the trial's ability to promote justice goals flows from Mark Osiel's notion that prosecutions create 'civil dussensus', namely constructive conversations among citizens in which contentious questions are deliberated and discussed.67 But do adversarial trials constitute a particularly effective vehicle for encouraging deliberation in all places? Care and consideration are required, and ironically such care and consideration may be threatened by the triumphant progress that has been made in international criminal law over the past decade. The priority should be to bring gross human rights offenders to justice in the state in whch they committed the offenses under legal, cultural, and social norms embedded in that state. One advantage of local trials is that they permit the budding of a post-confict domestic juducial infrastructure. In

Mark J. Osiel, M m Atrocity, Col'lectiveMemoy and the La2v (Transaction Publishers: New Brunswick, NJ., 1997) at 240-292. b7

I36

Finnish Yearbook ofInternational Law (Vol. XII, 200 l )

&us sense, the UN-assisted courts for Kosovo and East Timor are interesting joint ventures that create a constructive mixture of international and local values.68 A major shortcoming of methodologcally, physically, or culturally externalized trials is that they may carry little meaning in those societies they were designed to assist. Different places may well have drfferent methods to right wrongs. For example, South Africa's Truth and Reconciliation Commission may represent something 'different' from international criminal justice, but may have done much more to denounce apartheid as evil and convert that denunciation into a widespread and generally accepted narrative than would have been possible through narrow punitive criminal justice methodologies.69 Dissonance may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society or, in the case of transnational conflict, of the society where the perpetrators or victims oripate. In certain cases, such dssonance may reflect deeper divides between 'us' in the West and 'others7 in the rest of the world. Although international human rights law as implemented through international tribunals is putatively universal, its origins lie in Western legal norrns.70 Moreover, those national courts exercising universal jurisdiction over human rights abuses generally are Western courts, and the abuses being addressed have generally taken place in the developing world.71 In particular, any exercise of universal jurisdction by American courts, or its support of the ad hoc international tribunals, may appear unprincipled whde the US simultaneously continues to exhibit reluctance to subject its own citizens and military to externalized justice, either through intemational tribunals (i.e. US opposition to the ICC) or foreign national courts.72 This may lead to sporadic and anarchc implementation of international human rights and criminal law. Whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed - through procedural design, composition of decision-makers, and application of diverse legal traditions - to take into account an interesting discussion, see Wendy S. Betts, Scott N. Carlson, and Gregory Gisvold, 'The PostConflict Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and Rule of Law', 22 Michkan JournalofInternationalLm (2001) 371-389 at 373. 69 This is not to deny that the threat of criminal sanction played a part in inducing participation in the Truth and Reconciliation Commission process. However, the spirit of the Truth and Reconciliation Commission differs substantively from punitive criminal justice. 70 For a discussion of the Eurocentric nature of much of international law, including international human rights law, see Wright, InternationalHuman Rzghts, szcpra note 57. 71 'States exercising [universal] jurisdiction . . . may be accused of jurisdictional imperialism because universal jurisdiction is only likely to be exercised in powerful states with regard to crimes committed in less powerful states'. See International Law Association, Report, mprn note 4, at 421-422. 72 Marlise Simons, 'International court opposed by US opens for business', The International HeraldTbbutze, 1 July 2002, at 1; Serge Schmemann, 'US Links Peacekeeping to Immunity From New Court', New York Times, 19 June 2002, at A3. 68 For

Jam'dical andJarisdictionalDisconnects

137

local culture, law, politics, and history. This way, trials may be physically extraterritorial, but not as culturally and methodologically extraterritorial. Although the International Law Association observes that '[tlhe key rationale for the exercise of universal jurisdiction . . . is not deterrence but justice7,73 carefully designed contextual proceedings could achieve both deterrence and justice. To be sure, the ICJ7s recent decision has restrained criminal proceehgs undertaken through universal jurisdiction against incumbent Ministers of Foreign Affairs. This, in turn, may assuage some of the concerns related to externalization of justice that have been raised by this article. However, the ICJ decision did not challenge the exercise of jurisdiction per se, but rather addressed the scope of ministerial immunity. Even though the decision actually covers a very narrow set of individuals, and does not address broader questions related to exercise of universal jurisdiction, many in the international legal and human rights community strongly criticized this decision.74 While there may be cause to object to certain aspects of the ICJ reasoning,75 the international human rights community should be careful about the celebratory tone with which universal jurisdiction often is d1scussed.76 Bringmg defendants to book far from home, before indwiduals far removed from the cultural and social context in which the crimes were committed, or by whch those crimes may have been influenced, may provide some sort of closure, but this closure may be artificial and have little meaning. In fact, the exercise of universal jurisdiction through foreign courts may present a greater threat to the viability of in situ justice than international proceedings given that there is no need for a foreign court even to consider complementarity before exercising jurisdiction. Because '[tlhe best justice is national, rooted in national traditions of legitimacy, procedure, and language7,77it may be preferable in some instances for defendants to be subjected to indigenous proceedings at home rather than Western-defined rule of law initiatives abroad. Coincident with the expansion of human rights discourse in international politics is the perception that adversarial and individual criminal trials should be the primary and normatively are the best way to deal with those who abuse human International Law Association, Rtport, strpra note 4, at 406. See, e.g. 'Disappointment on Belgian War-Crimes Law Ruling', Press Release, Human Ftghts Watch (14 February 2002) (document on file with the author). 75 For example, the decision did not specify the standards by which an individual can be declared by a state to be a Minister of Foreign Affairs, thereby making it difficult to assess when such a declaration is made for the purpose of shielding potential foreign prosecution. Nor does the decision acknowledge that conventional international law - for example the Statutes of the ad hoc tribunals and the ICC, which eliminate the types of immunities advanced by the Democratic Republic of the Congo - may affect the content of customary international law. It also is unclear whether the immunities can be extended to civil claims. 76 See, e.g. 'Disappointment on Belgian War-Crimes Law Ruling', stcpra note 74. 77 Mchael Ignatieff, W e Are Not the World', The New R~#~bkc, 13 August 2001,14-15 at 14. 73 74

138

Finn& Yearbook ofInternational Law (Vol. XII, 200 l )

rights.78 This perception reflects both the globalization of justice and the rlarrowing of focus to perpetrators viewed as 'most evil' or those against whom there appears to be sufficient evidence to support a conviction. This has generated the construction of a legal superstructure, which includes the ICC, the ICTY, the ICTR, and foreign trials through universal jurisdiction. However, this construction has been undertaken with scant attention to developing a criminology of mass violence or to theorizing a sentencing policy for perpetrators of such violence. International lawyers and activists have been successful in embedding the notion of justice in the discourse of a new, and perhaps more humanized, worldorder. In this sense, there has been a mainstreaming of criminal justice in international relations. However, is this a narrow justice limited to Western-style prosecutions, or a broader justice that includes reparations for victims, shaming for ambivalent bystanders, cross-cultural approaches, apologes from aggressors, revitalization of domestic institutions, and giving voice to survivors? Although there has been some reflection on this issue among international lawyers, there persists an imperative to implement ~ r h i i dtrials. Thls imperative may create disconnects between the pursuit of trials and the consequences these trials have on local communities, national reconciliation, and peace and security. Non-judicious use of universal jurisdiction also may roil international comity. Moreover, if the exercise of such jurisdction can be triggered by individual plaintiffs (for example, as may be the case in civil suits filed under the Alien Tort Claims Act in the US), then initiating h s exercise of jurisdiction may fall outside the control of the executive or legslative branches of government, leading to what Anne-Mane Slaughter and David Bosco call 'plaintiffs diplomacy7.79If 'plaintiffs diplomacy' can proceed contrary to the wishes of the national government in which the lawsuits are filed, the effects of such 'diplomacy' on international comity could be very real.

Externalization: Past Experiences and Recent Tragedy Notwithstandmg the tremendous dfferences between the genocide in Rwanda and the attacks of 11 September 2001 in the USO : concerns regardmg the externalrzation 78 This may well parallel the triumph of law and order' in domestic politics, particularly in the United States. See, e.g. Robert F. Drinan, The Mohdption ofJbame (Yale University Press: New Haven, 2001) at 27, 141-142 (noting that the dominant approach of federal and state officials in the United States is to penalize and punish prisoners). 79 Anne-Marie Slaughter & David Bosco, Tlaintiffs Diplomacy', 79 Foreign Afairs (Sept./Oct. 2000) 102-116, at 102. 80 One large difference is the need for incapacitation and immediate and specific deterrence in the alQaeda context. Another is that pursuing al-Qaeda addresses ongoing criminal activity, while Rwandan prosecutions are retrospective. Furthermore, prosecuting d-Qaeda terrorists in the US does not require

JnridcnI and Jnyisdictional Disconnects

139

of justice in the Rwandan context are instructive for the important goal of building anti-terrorism norms. To be sure, it is too early yet to make defmitive prechctions about the effectiveness of justice responses to 11 September given that these remain inchoate. However, it is not too early to reflect upon prior experiences and examine the lessons these might offer for any future prosecutions. It is worth recogruing this examination is p r e h a r y in nature and seeks to spark dscussion; it is not a thorough treatment of complicated issues that are still emergmg. Thus far two dominant prosecutorial approaches have emerged for dealing with the alleged terrorists. These are trials in national courts, whether in the US or other countries;8' and US military commissions (popularly called 'military tribunals3.82 Each carries with it important externalization concerns. Domestic proceedings undertaken in the US -although satisfying the deontological need to punish wrongdoers and victims' needs for affirmation - may not do much to b d d a widespread, deep-rooted social norm that condemns terrorism in the myriad places where disaffected individuals may be inspired to join terrorist movements.83 Nor may such an approach resonate even withLn those constituencies that avowedly oppose terrorism or violent extremism.84 Sirmlar legitimacy concerns attach to trials that take place in the national courts of other Western nations. Even more serious concerns may arise with regard to military commission proceedmgs. One key risk is that justice processes will be externalized from the very communities where anti-terrorism norms need to become fully internalized in order for terrorist activity effectively to be deterred. Although it may well be that trials can play only a limited role in constructing such norms, it will be the exercise of universal jurisdiction; the US could assume jurisdiction through the territoriality principle. But, unlike in Rwanda, the aggressors are not from the same society as the victims. The crimes related to the events of 11 September are truly transnational crimes: some states could claim jurisdiction because the accused are their nationals, others based upon passive personality. National prosecutions entail making a choice: which 'justice' is closer - that in the place where the victimization occurred, or that in the place where the aggressors came from? 81 David E. Rovella, 'Feds Want Terrorist Trials Held in the US7,The NationalLawJo~mal,15 October 2001, at Al; Don van Natta Jr. with Benjamin Weiser, 'Compromise Settles Debate Over Tribunal', New York Times, 12 December 2001, at B1. Some terrorism trials already have begun in the UK, France, Spain, and Germany. The fust proceeding related to the events of 11 September, the trial of Zacarias Moussaoui (a French citizen detained in the US), has begun in federal court in Virginia. 82 On 13 November 2001, President Bush signed an order enabling the creation of military commissions to try non-US citizens accused of terrorism. Draft regulations regarding the operation of the commissions were issued in December 2001 and finalized in March 2002. Charles Lane, 'Terrorism Tribunal Rights Are Expanded', Wmhington Post, 28 December 2001, at A01. 83 The word 'disaffected' is deliberately chosen as it is not only poor people who join these networks, but also middle- and upper-class individuals, suggesting some acute sense of alienation, not just economic disempowerment. 84 This suggestion is based upon my own observations from March 2001, when I taught an intensive international human rights law course to the Afghan 'bar in exile'. This course was organized by the International Law Project and held at the Afghan University in Peshawar, Pakistan.

140

Finnish Yearbook: OfIntemational Law (Vol. XII, 2001)

important to consider how they can do so most effectively, especially if the purpose of the trials goes (as it should) beyond punishment and offering a sense of closure to the victims. Ultimately, self-policing by actors within states where terrorists may operate is a key tool to combat terrorism in the long term. Although short-term military intervention may well be needed to respond to the immediate threats, trials should play a role in a longer-term strategy that builds social norms in favor of such self-policing. Trials offer the immedate possibility of identifying those thought to be most culpable, and prosecuting and p u n i s h g them. However, @ty individuals operate w i t h a social and historical context. Individual members of the Taliban and alQaeda are no exceptions. Trials may not spark a discussion of the collective, foreign, and institutional involvement that created conditions in Afghanistan that were so h e that the country became a sanctuary for radical evd. Trials cannot be pursued in isolation from these deeper questions involving the past, just as they cannot be pursued in isolation from issues of nation-building involving the future. The Afghan and Rwandan situations share an important characteristic in common: in both cases, individual criminal sanction may deflect responsibhty away from international organizations and institutions and foreign governments. It is easy for victims to blame individual terrorists and conspirators: after all, these are the individual 'evildoers'. But, that is just an initial -albeit necessary- step in a rigorous search for justice. In many ways, sustained foreign involvement by many powers in Afghanistan during the 1980's prompted the emergence of the Taliban. The foreign policies that facilitated the emergence of the Taliban need to be rethought and eschewed in the future so as to minimize the risk that weak or socalled failed states may offer succor to terrorists.

Conclusion Rwanda's experience exemplifies the trend toward judicial accountabdity in the wake of mass atrocity and is instructive regardmg the dfficulties inherent in h s trend. Although extraterritorial trials for human rights abuses certainly achieve some justice, this article concludes - through a case-study of post-genocide Rwanda that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called 'universal jurisdiction'. This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfjmg the deontologcal need to punish aggressors.

Incommensurabilities may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society. These incommensurabilities may reflect deeper divides between 'us' in the West and 'others' in the rest of the world. These divides are prompted by the fact that international human rights law as implemented through international tribunals is proffered as a putatively 'universal' construction, but h s may belie its perceived origins in Western legal norms. Moreover, those national courts exercising universal jurisdction over human rights abuses are Western courts, and the subject matter of the jurisdctional exercise often are abuses in the developing world. Assuming the existence of some sort of international legal duty to prosecute systemic human rights abusers, then whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed and take into account contextual elements such as local culture, law, and history. This way, trials may be geographically extraterritorial, but not as legally, culturally, spiritually, and socially extraterritorial. Accordingly, the Rwandan experience may foreshadow dfficulties for future terrorism prosecutions in attaining the important goals of thwarting recidivism and mitigating martyrdom. To be sure, such prosecutions could promote justice for the thousands of victims and could incarcerate many terrorists. However, these prosecutions may be so methodologically, culturally, and physically externalized from the communities where terrorist networks are formed that the long-term social impact of these prosecutions could be very attenuated. Policy-makers should therefore consider developing justice responses to the attacks of 11 September that will internalize meaning in a broad array of places, including the societies of which the terrorists and conspirators were nationals. Until this social architecture is constructed, the West may suppress terrorism but might not eradicate it.

This page intentionally left blank

Justice Under International Administration: Kosovo, East Timor and Afghanistan Simon Chesterman*

Introduction One of the most important and dfficult challenges confronting a post-conflict society is the re-establishment of faith in the institutions of state. Establishing (sometimes for the k s t time) respect for the rule of law in particular, implying subjugation to consistent and transparent principles under state institutions exercising a monopoly on the legitimate use of force, may face special obstacles. In territories where state institutions themselves have been used as a tool of oppression, burldmg trust in the idea of the state requires a transformation in the way in which such institutions are seen. Informal mechanisms that emerge in times of confict may also create economic and political incentives that militate against respect for the rule of law. These concerns are in addition to more immediate issues, such as the desire of some members of a population emergmg from conflict to seize the opportunity in a time of peace to exact retribution for past injustices. For most such post-conflict societies, the choices range from drawing an historical line and moving on, as Spain did after Franco, through lustration processes embraced in some Eastern European countries, truth and reconciliation processes along the lines of the Latin American or the South Afncan models, to limited or more general criminal prosecutions before tribunals. In rare cases, international bodes may be established to try alleged offenders. This may be done without the cooperation of the state or states concerned, as in Nuremberg and Tokyo and the tribunals for the former Yugoslavia and Rwanda,' or through special Senior Associate, International Peace Academy. Field research for this article was made possible by the generous support of the Carnegie Corporation of New York for the International Peace Academy's Project on Transitional Administrations. (See <www.ipacademy.org/ta>, 29 July 2002.) Thanks to Chandra Lekha Sriram for her helpful comments on an earlier draft of this paper. The views expressed are those of the author alone. 1 Rwanda was on the Security Council in 1994 and voted against the Security Council resolution establishing the International Criminal Tribunal for Rwanda (ICTR). Its cooperation with the ICTR since then has varied. *

144

Finnish Yearbook $International

Law (Vol. X I , 2001)

agreement, as in the case of Sierra Leone and the tribunal at one time contemplated for Cambodia. A further possibility, also outside the control of the state concerned, is trial before a third state exercising universal jurischction.2 These choices shift radically in the still rarer situation when the territory itself comes under international administration. In such circumstances, where the institutions of state are being exercised on an interim basis by a benevolently despotic power, it may be argued that justice is already internationalized. Nevertheless, practice in this area has been improvisational rather than principled. What law should be enforced? By whom? And, crucially, how should one resolve the potential dilemma between building capacity for sustainable local institutions and maintaining respect for international standards of justice? This article d examine these questions through the experiences of United Nations administrations in Kosovo (1999-) and East Tirnor (1999-2002) and the assistance mission in Afghanistan (2002-). Though the United Nations had exercised varying measures of executive power in previous missions, notably West Papua (1962-1963), Cambodia (1992-1993), and Eastern Slavonia (1996-1998),3 Kosovo and East Timor were the first occasions on which the UN exercised full judicial power w i t h a territory.4 These situations therefore merit some scrutiny and are considered in parts one and two. The UN Assistance Mission in Afghanistan (UNAMA) represents a substantial correction to the increasing aggregation of

2 See Chandra Lekha Sriram, 'Universal Jurisdiction: Problems and Prospects of Externalizing Justice', in the present volume. 3 See Simon Chesterman, 'East Timor in Transition: Self-Determination, State-Building and the United Nations', 9 IntemationaL Peacekeqing (2002) 45-76. Bodies other than the United Nations have also exercised quasi-judicial power. In Somalia, for example, Australian peacekeepers attempted to reestablish a local police force and community courts in areas they entered: see Martin R. Ganzglass, 'The Restoration of the Somali Justice System', in Walter Clarke and Jeffrey Herbst (eds.), Laming from Somalia: The Lssons ofArmed Hzlmanitarian Memention (Westview: Boulder, CO, 1997) at 20. 4 O n Kosovo, see UN Security Council Resolution 1244 (1999), para. ll(a), @)(i) ('[plromoting the establishment . . . of substantial autonomy and self-government in Kosovo'; 'blerforming basic civilian administrative functions where and as long as required'; and '[mlaintaining civil law and order'); see also UNMIK Regulation 1999/1 (25 July 1999), para. l(1) ( 'All legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary-General'). O n East Timor, see UN Security Council Resolution 1272 (1999), para. 1 ('establish . . . a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justicey); see also UNTAET Regulation 1999/1 (27 November 1999), para. l(1) ('All legislative and executive authority with respect to East Timor, including the administration of the judiciary, is vested in UNTAET and is exercised by the Transitional Administrator').

Justice Under International Administration: Kosovo, East Timor and Afghanistan

145

sovereign powers exercised in UN operations since the mid-1990s.5 This operation wiU therefore be considered by way of counterpoint in part three. In the context of the present collection of essays on the externalization of justice, international adrnitllstration presents a hard case for many of the issues that run through this issue more generally. Here, the issue is not so much where justice takes place as who adnimsters it and according to whose law. Many critics of the exercise of universalized criminal proceedings point to the chsjunction between these 'ideal' proceedings and the cultural context w i t h which the crimes actually took place," or to the unsustainability of international standards after the fleeting interest of the international community passes.' These concerns apply a fortiori to situations in which a primary purpose of the international community's engagement is to establish institutions that d outlast the international presence. Experience in the three post-conflict states to be considered here has been, to say the least, mixed.

Kosovo: Justice in Limbo Kosovo's experience of justice reflects the intentional ambiguity of the resolution to the 1999 confhct between NATO and the Federal Republic of Yugoslavia FRY) over its actions in Kosovo. Though the chances of it ever returning to direct control under Belgrade are negligible, Kosovo's final status remains indeterminate. T h ~ s uncertainty has exacerbated the challenges of post-confhct reconstruction as it is unclear what form of institutions should be built by the 'interim adm~nistration'.In particular, there was considerable reluctance to hand over power to the Kosovar Albanians in the form of quasi-independent institutions that might quickly assert actual independence; at the same time, the hostile environment (fostered, in part, by the failure to address the status question) led the United Nations to adopt security measures that actively undermined respect for the rule of law. There was, therefore, no 'ownership' on the part of the local community and frequently little leadership on the part of the UN. Though hardly the largest of the many problems confronting Kosovo, these factors have not helped the prospects for the rule of law as the province inches its way towards Europe.8 In the course of NATO's aerial campaign, a key element in resolving the dispute was the establishment of an interim administration authorized by the UN See, e.g., Richard Caplan, A New Tmsteesb;P? The International Administation of War-tom Territories (Adelphi Paper 341, Oxford University Press, 2002). 6 See, e.g., Mark Dmmbl, 'Juridical and Jurisdictional Disconnects' in the present volume. 7 See, e.g., Sriram, Universal jurisdiction', szpa note 2. 8 See Simon Chesterman, 'Kosovo in Limbo: State-Building and "Substantial Autonomy"' (International Peace Academy: New York, August 2001), available at <www.ipacademy.org> (visited 29 July 2002). 5

l46

Finnish Yearbook ofInternational law (Vol. XII, 200 1)

Security Council. The principles adopted by the G-8 Foreign Ministers on 6 May 1999 provided for a 'political process towards the establishment of an interim political framework agreement', which would in turn provide for 'substantial selfgovernment for Kosovo', taking full account of the sovereignty and territorial integnty of the FRY.9 This was further 'elaborated' in the principles finally agreed by the FRY, which stated that the interim administration was to be established as a part of the international civil presence 'under whch the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia'.lo The central contradiction of the United Nations Interim Admssion Mission in I (visited 29 July 2002). 15 O'Neill, Kosovo, sqra note 11. l6UNMIK Regulation 1999/1 (25 July 19991, paras 2,3.

148

Finnish Yearbook afhtemational Law (Vol XII, 200 l )

insisted on applying the Kosovo Criminal Code and other provincial laws that had been in effect in March 1989, asserting that these had been illegally revoked by Belgrade. (The judges nevertheless 'borrowed' from the 1999 law to deal with cases involving crimes not covered in the 1989 Code, such as drug-traffickmg and war crimes.) In addition to undermining hopes of Serb judges returning to office, this dispute greatly undermined the UN's credibility - especially when it finally reversed its earlier decision in December 1999 and passed a regulation declaring that the laws in effect on 22 March 1989 would be the applicable law in Kosovo.17

Appointment of Judges UNMIK also had to reverse itself on the question of appointing international judges to oversee the legal system. Despite the resignation of Serb judges and concerns about ethnic bias and intimidation w i t h the Albanian judiciary, UN officials were reluctant to introduce international judges.18 A senior UN official reportedly responded to such a recommendation by stating: 'This is not the Congo, you know.'lg Instead, operating under the Joint Advisory Council on Provisional Judicial Appointments (JAC/PJA), 55 judges and prosecutors were proposed in the fust months of the mission.20 By February 2000, the rebellion of Albanian judges described above and a series of attacks against Serb judges led to a regulation allowing Special Representative of the Secretary-General (SRSG) Bemard Kouchner to appoint international judges to the district court in Mitrovica as an emergency measurez1In May 2000 this was extended to every district court in K o s o v o . ~

Executive Detentions One of the consequences of the diminished credibility of UNMIK and its own lack of faith in the local judiciary was recourse to detention on executive orders. On 28 May 2000, Afram Zeqiri, a Kosovo Albanian and former KLA fighter, was arrested on suspicion of murdering three Serbs in the vdlage of Cemica, including the UNMIK Regulation 1999/24 (12 December 1999), para. l(1). See, e.g., S/1999/779, para. 66 ('There is an urgent need to build genuine rule of law in Kosovo, including through the immediate re-establishment of an independent, impartial and multi-ethnic judiciary'). '"ee Chesterman, 'Kosovo in Limbo', sqra note 8. *0 UNMIK Emergency Decree No. 1999/1 (28 June 1999) and UNMIK Emergency Decree No. 1999/2 (28 June 1999) creating the legal basis for JAC/PJA and appointing its members (three internationals, four locals- two Albanian, one Serb and one Bosniak). This was later succeeded by the Advisory Judicial Commission: UNMIK Regulation 1999/7 (7 September 1999). 21 UNMIK Regulation 2000/6 (15 February 2000). 22 UNMIK Regulation 2000/34 (27 May 2000). l7

18

Justice Under International Administration: Kosovo, East Timor and Ahbanirtan

149

shooting of a four year old boy. An Albanian prosecutor ordered him released for lack of evidence, raising suspicions of judicial bias.23 The decision was upheld by an international judge, but Kouchner nevertheless ordered that Zeqiri continue to be detained under an 'executive hold', claiming that the authority to issue such orders derived from 'security reasons' and Security Council resolution 1244.24 Similar orders were made by Kouchner's successor, Hans Haekkerup. In February 2001, a bus carrying Serbs from Nis into Kosovo was bombed, killing 11. British KFOR troops arrested Florim Ejupi, Avdi Behluh, Cele Gashi and Jusuf Veliu in mid-March on suspicion of being involved, but on 27 March a panel of international judges of the District Court of Pristina ordered that Behluli, Gashi and Veliu be released. The following day, Haekkerup issued an executive order extending their detention for 30 days, later extended by six more such orders. (Ejupi was later reported to have 'escaped' from the high-security detention facility at Camp BondsteeL)25 Two years into the mission, UNMIK officials argued that Kosovo still ranked as an 'internationally-recognized emergency'; in such circumstances, it was said, 'international human rights standards accept the need for special measures that, in the wider interests of security, and under prescribed legal conditions, allow authorities to respond to the fmdings of intelligence that are not able to be presented to the court system.'26 Following criticism by the OSCE Ombudsperson,27 as well as international human rights organizations such as Amnesty International28 and Human Rights Watch,29 a Detention Review Commission of international experts was established by UNMIK in August 2001 to make final decisions on the legality of administrative detentions.30 The commission approved extension of the detentions of the alleged Nis bombers until 19 December 2001 - a few weeks after Kosovo's first provincial elections - ruling that 'there are reasonable grounds to suspect that each of the detained persons has committed a criminal act'. At the end of that period, the three-month mandate of the commission had not been renewed; in its absence, the Kosovo Supreme Court ordered the release of the three

O'Neill, Kosovo, szpa note 11. Ibid. 25 See Arben Qirezi, 'Coua Overturns Haekkerup Detention Orders', f W R Balkan Ctisis &port No. 3 0 8 , l l January 2002. 26 'UNMIK Refutes Allegations of Judicial Bias and Lack of Strategy', UNMIK News (Pristina), 25 June 2001. 27 Ombudsperson Institution in Kosovo, Special Report No 3: On the Confomig of Dtpjvations o f l i b e q Under Exemtive Orders' with Recognixed IntemationalStandardr (29 July 2001). 28 Amnesty International, Press Release, 21 February 2001. 29 Human Rights Watch, World Rtport 2002 (Human Rights Watch: New York, 2002) at 386. 30 UNMIK Regulation 2001/18 (25 August 2001), O n the Establishment of a Detention Review Commission for Extra-Judicial Detentions Based on Executive Orders. 23 24

150

Finnish Yearbook of IntemtionaI

LW(Vol. XI& 2007)

detainees.31 The last person held under an Executive Order, Afrim Zeqiri, was released by a judge on bad in early February 2002 after approximately 20 months in detention.

Kosovo in Limbo Kosovo demonstrates some of the most difficult aspects of administering justice under international administration. Some of these difficulties arose from the security environment on the ground; others from the high politics surrounding every aspect of NATO's intervention and the subsequent role of the United Nations. Together, these factors encouraged inconsistent policies on the part of the international admintstration,in turn giving rise to its own contradictions as the body charged with instilling the values of human rights and the rule of law detained persons in apparent contempt of international judges. A clearer distinction between an initial period of martial law and subsequent judxial reconstruction might have ameliorated some (though not all) of these problems. Given the particular controversy concerning the choice of law in Kosovo, it might have been appropriate also for the UN to impose a generic penal code and code of criminal procedure for an interim period, along the lines recommended by the Report of the Panel on Peace Operations (the B r a b Report).32

East Timor: Post-Colonial Justice In East Timor, the United Nations faced the task of building a judicial system literally from the ground up.33 AS the UN prepared to establish a transitional administration, the Secretary-General observed that 'local institutions, including the court system, have for all practical purposes ceased to function, with . . . judges, prosecutors, and other members of the legal profession having left the territory7.34

Qirezi, 'Court Overturns', sqra note 25; UNMIK, Press Release, (19 December 2001). Report of the Panel on United Nations Peace Operations, UN Doc A/55/305-S/2000/809 (21 August 2000), paras 80-83, available at <www.un.org/peace/reports/peace_operations/, 29 July 2002. 33 Hansjoerg Strohmeyer, 'Building a New Judiciary for East Timor: Challenges of a Fledgling Nation', 11 CrimnaZLaw Fomm (2000) 259-85 at 262. 34 Report of the Secretary-General on the Situation in East Timor, UN Doc S/1999/1024 (4 October 1999), para. 33. 31

32

Justice Under International Administration: KOJOVO, East Timor and Akhanistan

15 1

This apocalyptic view of the situation appeared borne out by early estimates that the number of lawyers remaining in the territory was fewer than ten.35 Unhke Kosovo, then, East Timor's experiences reflect a distinct set of concerns with externalized justice. Although there was an initial assumption that East Timor required swift law and order measures to maintain peace and security (learning, in part, from the experiences of Kosovo), it soon became clear that the main focus should be on developing institutions that would be sustainable. Greater efforts were made to 'Timorize' the judciary than most other civil and political institutions, but h s led to substantial trade-offs in terms of the qualifications of staff. Balancing the desire for sustainability against the need to respect international human rights standards -a perceived pre-requisite for UN involvement in the reconstruction process - led to the establishment of a special panel for Serious Crimes. Plagued by various concerns irrelevant to the situation of the Timorese (such as internal UN management difficulties), thrs panel has enjoyed less legitimacy than the Timorese-driven Commission for Reception, Truth and Reconciliation (CRTR). Meanwhile, frustration with the pursuit of serious offenders (and footdragging by Indonesia) has led to Timorese calls for a full international criminal tribunal to be convened. This may be based on unrealistic expectations of what such a tribunal might achieve - in any case, any such proposal appears unhkely to draw the support of the international cornmunity.3"

Law and Order under INTERFET In the wake of the post-referendum violence in East Timor in September 1999, the Australian-led intervention force (INTERFET) had to decide how to respond to denunciations of alleged former militia. Such matters formally remained in the hands of the Indonesian police and judiciary, though thrs was the case on paper only. It was clear that this area would soon become the responsibility of the United Nations Transitional Admttllstration in East Timor (UNTAET) and an East Timorese judiciary, but these had yet to be established on the ground. INTEWET's Security Council mandate was silent on its responsibility or authority to carry out arrests. The Council resolution did, however, stress the individual responsibihty of individuals committing violations of international humanitarian law and demand that they be brought to justice.37 INTERFET ultimately decided that its broad See Strohmeyer, 'Building a New Judiciary', qbra note 33, at 263. The World Bank estimated that over 70% of all administrative buildings were partially or completely destroyed, and almost all office equipment and consumable materials were totally destroyed: World Bank, Report of the Joint Assessment Mission to East Timor (8 December 19991, para. 15, available at <www.worldbank.org/ html/extdr/offrep/eap/etimor/donorsmtg99/jsummablefinal.pd (visited 29 July 2002). 36 See Nehal Bhuta, 'Great Expectations -East Timor and the Vicissitudes of Externalised Justice' in the present volume. 3' UN Security Council Resolution l264 (1999), para. 1. 35

152

Finnish Yearbook ofIntemionalLaw (Vol.XII, 2001)

mandate to restore peace and security could encompass arrests of indwiduals accused of committing serious offences - fdure to do so might encourage Timorese people to take the law into their own hands. INTERFET's commander therefore issued a Detainee Ordinance, creating various categories of detainees. INTERFET troops were authorized to detain persons suspected of committing a serious offence prior to 20 September, and were required to deliver them to the Force Detention Centre in Dili within 24 hours of the detention. If a detainee was held for more than 96 hours, he or she was provided the grounds for the detention, together with material considered by the commander of INTERFET as the basis for continuing detention. Defendmg Officers were avdable to assist the detainee to show why he or she should not be so held, and a number of detainees were released because of insufficiency of evidence. All detainees were handed over to the civil judiciary of UNTAET, established on 7 January 2000.38

Appointment of Judges Though East Timor presented fewer security and political problems than Kosovo (choice of law, for example, was uncontroversial39), the lack of local capacity presented immense challenges. Under Indonesian rule, no East Timorese lawyers had been appointed to judicial or prosecutorial office.40 A Transitional Judicial Service Commission was established, comprising three East Timorese and two intemational experts,41 but the absence of a communications network meant that the search for qualified lawyers had to be conducted through leaflet drops by INTERFET planes. Within two months, sixty qualified East Timorese with law degrees had applied for positions and the first eight judges and two prosecutors were sworn in on 7 January 2000.42 As in I (accessed 1 April 2002).

222

Fitzni~bYearbook oflnternational LW (Vol. XII, 200 1)

peace, and the general sustainability of international criminal justice. The law's operation is ideally unsuited to and flounders beyond a certain number of political variables. The loose internal guidance suggested by the relative gravity of crimes is simply no match for the kind of huge external pressure that will come to bear on the ICC. So what started as an injunction to prioritise the gravest crimes must perforce dissolve into a recommendation to get on with it w i t h the limits of the 'art of the possible', an appropriate if depressing anti-climax to the Law's pretensions. The ideology of global criminal justice's repression of the fractured nature of the international community comes to haunt it. Precisely at the moment at which politics seems to have been forcefully expelled, it returns through the back door, only to find its place at the heart of the ICC's architecture. . . 'This allegedly nonpolitical and apparently even antipolitical system serves existing or newly emergmg friend-and-enemy groupings and cannot escape the logic of the political.'68 The reason why the ICC prosecutor would be better placed to make such decisions than the Security Council -an organ no-doubt very much in need of reform but at least plural and reasonably open - is, precisely, the other question that supporters of the ICC always fad to address. Typically, liberal defenders of an ICC either play down the power of the prosecutor,69 or are casually optimistic about the extent to whch procedural or substantive safeguards d actually constrain the decision of who gets prosecuted.70 Scholarly comments on the issue read like a catalogue of institutional optimism: the prosecutor shall be a person of 'high moral character' (which should at least get rid of all these professional embezzlers and convicted rapists who routinely apply for international prosecuting jobs), shall be elected by secret ballot by an absolute majority of the members of the Assembly of states parties, and 'shall not participate in any matter in which P S ] impartiality might reasonably be doubted on any ground'. All of the above, however, dismally fail the test of addressing the internal problem of discretion: a failure that would in turn seem to make the ICC extremely vulnerable to the very politics it proposes to domesticate.

68 C. Schmitt, The Concept ofthe Political (first published 1932) (translated and with an introduction by George Schwab, University of Chicago Press, 1996) at 36. 6 W n e strategy, for example, is to point out how weak the ICC Prosecutor's powers will be compared to those of a domestic prosecutor. See, for example, E. David, Z a Cour pCnale internationale: une Cour en liberti surveillie?', International Law F o m (1999) 20. The argument, however, is one that is only likely to convince those candid international lawyers who already take it for granted that the 'domestic analogy' works and is the most appropriate one to analyse the international. 70 J. Goldstone & N. Fritz, 'The ICC Prosecutor's Unprecedented Power', 13 Leiden Journal of IntemationalLaw (2000) 655,657-658.

Three Dangersfor the International Cm'minal Cozi&

The ICC as an Instrument of Politics: Holding Mirror of Liberal Identities

223

the

Lookmg-glass, lookmg-glass, on the wall, Who in this land is the fairest of all?71 The final danger with the ICC is that for all the above reasons, it serves less for the purposes it proclaims than as a narcissistic focal point for liberal identity, and as an occasional testing-ground for progressive credentials. This is already apparent in the way the ratification process has become caught-up in a family quarrel between Europe and the US, which boils down to the question of who has the better moral claim to headmg the liberal world." With such minimal strateping, the ICC will be at permanent risk of borrowing from the political some of its basest rhetoric. Indeed, one of the most strhng realities about the ICC is the extent to which it is not and wdl not in the foreseeable future be universal. Most if not all of the 'likely offenders', in particular, have made it quite clear that they will not ratify the Statute. If not a Court for all, however, one can only wonder what might be the more fundamental purpose of an institution whose members have often been fond of referring to themselves as 'like-minded'? The ICC seems at times condemned to remain a loose alhance of liberal states and a few more or less client satellites, all the more committed to the ICC now that they broadly see themselves as belonging safely to 'that part of the world that does not, by and large, commit international crimes'. As if the ICC were, perhaps, less about engagvlg radical dfference than entrenching it. Whether die-hard supporters of the ICC would have been willrng to sacrifice more consistently their ideal of an omnipotent court for the sake of including more states and possibly avoidmg more human rights violations is a political question that cannot simply be framed from the point of view of an absolutist morality (it is those states' fault that have not joined the ICC that they have not been convinced by its merits) and must perforce entail an examination of how all involved stood up to the historical opportunity afforded by the Rome Conference. It is, at any rate, on h s terrain that a sense of historical triumphalism combined with a naivety about what international criminal justice can achieve and how it can achieve it would seem to make the ICC uniquely vulnerable to political manipulation. In the ideology's self-understandmg, justice is always opposed to war because justice can only lead to peace. But such a view overlooks the crucial extent to which

The Grimm Brothers, Snow White, available at <www.fln.vcu.edu/grimm/schneeeng.html> (accessed 1 April 2002).

71

72

Mtgret, 'Epilogue to an Endless Debate', supra note *, at 267.

Finnish Yearbook ofIntemational Law (Vol. XII, 2001)

justice can also be a cause of war, a factor of war's intensification, and a natural agent of its prolongation.

Justice and War To be sure, Schmitt's fear that '[tlo confiscate the word humanity, to invoke and monopolise such a term probably has certain incalculable effects, such as denymg the enemy the quality of being human and declaring him to be an outlaw of humanityY73seems by now characteristically outdated, in view of the fact that the worst that international criminal justice promises to those g d t y of the worst crimes against humanity is a trial endeavouring to conform with state-of-the-art human rights standards. One should be alert, nonetheless, to the fact that certain hlgh levels of social reprobation can be interpreted as so many signals licensing the use of violence, and to the way the rhetoric of justice more broadly infuses/infects the rhetoric of force. Apart from the odd incident involving arrests of ICTY indictees, and the margmal risk of a kind of global vigdantism fuelled by an inflamed moralistic crusading, there is a subtle sense, for example, that by implicitly putting Bin Laden beyond humanity - after all, has he not committed a crime against it? one paves the way for a manhunt that in turn has very little to do with the rule of law.74 More importantly, the role of judicialism in poking the flames of conflicts should not be underestimated. Here, the old Schmittian critique has not lost any of its bite and is made no less incisive by the fact that, every now and then, wars will be waged for purposes and in ways that happen to coincide with 'our' sense of justice. In effect, the framing of political issues as crimes promises to thicken substantially the moral atmosphere within which decisions to use force are made. There is a deeper conceptual affinity between the concepts of judicial intervention75 and military intervention than most defenders of international criminal justice would care to admt, and each faces the other in a relationship of mutual cause and consequence, rather than as the two branches of an alternative.76 As a result, the odd right to humanitarian intervention is already well on its way to being transformed into a kind of compulsory obligation to intervene to prevent human rights abuses. The determination that 'genocide' was being committed or was on the verge of Schmitt, 'Concept of the Political', supra note 68, at 54. See generally, F. MCgret, "War?' Legal Semantics and the Move to Violence', 13 European J o u d of InternationalLw 359 (2002). 75 TO the best of this author's knowledge the expression was coined by David Scheffer. D. J. Scheffer, 'International Judicial Intervention', Foreign PO& (1996) 34. It is at least since that time that it has begun to gain credence. 76 D. Chandler, '(Debating Cosmopolitics) International Justice', 6 New Left Review (2000) 55. 73 74

Three Dangersfor the International Cm'minal Court

225

being committed in Kosovo, for example -whether it was true or not - was crucial in triggering NATO's intervention. Again, one might want to think that h s was justified and that the cause of global international criminal justice should justify the waging of a war (or a few wars) 'to end all wars'. But advocates of global criminal justice cannot simply wipe their hands clean of such a possibhty. Most importantly, they should be ready to bear part of the responsibility -both moral and political - for all those uses of violence that they do not and would not approve of, but which in their own way subtly capitalise on the renewed availability of justice as an off-the-shelf rhetorical tool to use in the adrnitllstration of violence. One might disapprove of the armed intervention in Afghanistan on the ground that it does not correspond to one's concept of 'justice' but, to the extent that it is rhetorically justified by the criminality of terrorists' acts, one will no longer simply be able to oppose it on the ground that it is based on justice rather than law. But it is perhaps most crucially in the aftermath of conflicts and in their retrospective canonisation that international criminal justice becomes most closely intertwined with issues of power. The classic critique of international criminal justice in this respect is that it has been applied unevenly.77 But this critique claims too much and too little at the same time. There are in fact two dimensions to the double standards argument. One dunension is the external one that international criminal justice has been applied only to certain situations; for example, that there were no international criminal tribunals after Nuremberg during the entire Cold War; or that there were tribunals for the former-Yugoslavia and Rwanda but not for Chechnya or the Congo. As already suggested, however, this argument can fairly easily be &smissed by supporters of international criminal justice with a sense of history: one does, after all, have to start somewhere, and the liberal argument is particularly good at showing how partial progress always somehow leads to general progress. Whereas Nuremberg and Tokyo rmght have suffered from many defects, at least they paved the way for the ad hoc international criminal tribunals which themselves, although far from perfect, are the true 'laboratories' of a permanent international criminal justice, etc. The stronger argument is in fact that international criminal justice has been applied discriminately intemlh' that is within existing situations where international criminal tribunals were already operating. It is that critique and that critique only which stnkes international criminal justice at the heart because it targets its very ideological procedures.

See, in particular, T. L. H. McCormack, 'Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law', 60 Albay Law Review (1997) 681.

77

226

Finnish Yearbook ofIntemational lazv (Vol. XII, 2007)

Nuremberg and Tokyo This suggestion is an anathema to the ideology of global criminal justice to such an extent that a huge rhetorical structure has been elevated to conceal it from the inquisitive eye. In order to understand how that dtscourse is constructed, it is necessary to go back to where in a sense everydung started: the Nuremberg and Tokyo trials provide early test cases for both international criminal justice and its critique. There we see the emergence of a legal and scholarly discourse emerging and gradually solidifying into a sub-field, somewhere between law, history and politics, as 'Nuremberg' or 'Tokyo' studies. The field is simultaneously fascinated by its proximity to History and horrified by it. It defines itself by its capacity to isolate itself from politics, at the same time as it claims to tame it. The challenge for the progressive international lawyer, from this point on, is how to salvage the no doubt meaningful accomplishments of Nuremberg and Tokyo - the criminal liability of indtviduals under international law, the emergence of a concept of crime against humanity- whde doing away with its obvious downsides -the h k s of some of the judges with their governments, the prohibitions on challenging the jurisdtction of the courts - in order to exorcise the uncomfortable thought that progress might be linked to regression. This is going to be attempted through a variety of rhetorical strategies. The most facile is by casting some problems as legal' and others as 'political', and concentrating on the former at the expense of the latter. Hence for many lawyers the most relevant and 'interesting' thing that there is to dtscuss about the Nuremberg verdict is whether it was based on expostfacto law or not. Regardless of the answer one finds to that convoluted issue, it is noteworthy that it reflects a vision that this is a question that can be answered within the law when, in fact, all serious reflections on the issue invariably seem to lead to debates on what law is.78 Conversely, one leading commentator of the time, after recognising that the Nuremberg trial could be criticised for being 'unfair because constituted by one side of the same in a war or because some of the prosecuting states had been @ty offences for which they were trying their enemies', proceeded to stress that: '[tlhese moral and political arguments depend upon ethical, psychological, and sociological assumptions which are controversial. They should be distingushed from the legal arguments whlch alone are under consideration here.'79 By such means a long series of scholarly arguments was inaugurated accrediting the bizarre idea that some element centrally affecting law's equal and constant application were not a legitimate object of study for the law itself - while other relatively peripheral ones were. The

78

79

See S. L. Paulson, 'Classical Legal Positivism at Nuremberg', 4 Phdosopby and P~blicAfairs(1975) 132. Q. Wright, 'The Law of the Nuremberg Trial', 41 American JoamaZofIntemationaZlazv (1947) 38, at 45.

Three Dangersfor the International Criminal Coulzf

227

f ~ s international t criminal trials might have been imbued with power through and through, but the international lawyer would have none of it. T h s strategy had its h t s , however, and clearly further recoption of the reality of power was necessary if only to give the international lawyer a glow of worldliness. Typically, for example, one is going to witness the emergence of a genus of arguments to the effect that Nuremberg and Tokyo may have been created for reasons that had everythmg to do with power politics, but that at least liberal procedural safeguards ensured that the accused's rights were protected. After all, were not some of the accused acquitted or sentenced to light sentences? Surely this is a far cry from Vyshinsky show trials. The problem with such an argument (apart from the fact that it may not be true), is that it misses (and knows it misses) the central point, which has less to do with the fact that the Nazis and the Hirohto clique were tried, than with the fact that no Allies were. At a certain level, all critique of Nuremberg and Tokyo is a variation of the tu quogue argument. The classic liberal individualist response to that critique is to say that the crimes of others do not justify one's own. Apart from the complexities of that particular moral quandary, such reasoning essentially mistakes an individual problem for a structural one: the question is not so much whether any gven defendant was @ty or not by reason of his accusers having committed crimes, but whether justice as an institution hto senm was served by prosecuting only the losers. Hence the tu p o p e argument does strike at the root of the international criminal justice project because it challenges the unqualified moral pragmatic claim that justice half-done is substantially better than no justice at all. Most commentators on Nuremberg would in the end recognise this as a stain on the tribunal's record, but most would also disagree as to its gravity in very crucial ways. The tu pope problem, in particular, has often been treated, in typical liberal fashion, as one of intrinsic unfairness (failure to treat hke cases akke). This, however, overlooks the crucial extent to which it also entails a deeper problem of

distolited representation. Specifically, international criminal justice can be seen as an intrinsic element of how some of power's narratives are woven. In criminal law, the concept of @t presupposes the concept of innocence. Innocence stands in pristine opposition to guilt. Hence, although all gurlt requires a determination of gcult, all determinations of gudt also entail an implicit determination of the innocence of what is not gurlty. Tlus is so regardless (and in fact, perhaps precisely because) of the fact that such neat distinctions are not readlly to be found in the 'real' world. The complex acceptance/rejection of tu p o p e arguments, then, from the most superficial to the most radical, at and after Nuremberg, subtly contributes to writing an 'official story' of law, power, and responsibility. Each limited argument against Nuremberg in turn reveals and conceals, suppressed 'voices' of international criminal justice. In such a way is power entrenched rather than challenged.

228

Finnish Yearbook OfIntemationallaw (Vol. XII, 2001)

Firstly, comes what one might call the 'Doenitz' argument. Accordmg to that argument, orders issued by the German navy not to rescue the crew of sunken ships were in fact matched by similar orders given by the US navy. That critique, neatly restricted as it is to a sub-aspect of the conduct of warfare, is so obvious that it was accepted easily at Nuremberg itself where it justified the acquittal on all relevant charges of Doenitz. It falls well within liberalism's capacity for fairness and due process. The limited recognition of a tu p o p e argument in the case of Admiral Doenitz, in fact, is not so much an instance of fair-mindedness, as a stark reminder of all the tu p o p e arguments that were not recopsed. The second critique is what might be called the 'Hiro~huna'argument, which opposes Allied accusations of German war crimes to the Alhed bombing of, most notoriously, Hiroshima, Nagasaki and Dresden. Here one is stdl within the margins of the proceedmgs but only narrowly: Judge Pal was the only one to take the point up, and his dssident opinion was for a long time concealed.80 T h ~ sis a serious charge because it is a strategic one no longer simply involving localised incidents. It challenges the Ahes at the level of principle. Std, it is a critique that only deals with the waging of the war. As such, it is vulnerable to the argument (which the Allies in fact quite consciously made) that confronted with such a colossal evil, the AUles had no choice but to sacrifice some of their principles in order to bring about the ultimate defeat of the enemy. Thirdly, the 'Katyn argument', imputing the deliberate massacre of Polish officers to the Red Army, goes a step further. Although thanks to Soviet cynicism the charge was levelled against the Nazis, the accusation is certady devastating since IGtyn could not conceivably be related to any battle plan. Stdl, the accusation only involves one specific - albeit gruesome - incident concerning one ally (and thus could almost pass for the exception that confirmed the rule). Fourthly, the 'Holocaust' critique is one which focuses on the Alhes' larger passive responsibility in not doing more to prevent the H0locaust.8~Although they knew about the systematic extermination of Jewery in Europe, the Alhes faded to take any decisive action to prevent the Shoah because of a mixture of rampant antiSemitism82 and what one author described as a liberal 'psychological hindrance' about the possibility of absolute evil.83 So for example, while they could have, at little cost to themselves, bombed the railway h e s leadmg to death camps, the Akes 80 See E. S. Kopelman, 'Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial', 23 New York UniverxityJotlnzalofIntemationalLaw and Podtics (1991) 373. 81 D. S. Wyman, The Abandonment oftbe Jews: America and the Holocatlst, 194 1-1945 (Pantheon: New York, 1984). 82 H. L. Feingold, The Podtics of Resme; the Roosevelt Administration and the Holoca~st,1938-1945 (Rutgers University Press: New Brunswick, NJ, 1970). 83 M. N. Penkower, The Jews Were Eqendable: Free World Diploma9 and the Holocatlst (University of Illinois Press: Urbana, IL,1983).

Three Dangersfor the International Cnkvilaal Con&

229

failed to do so.84In some cases the Allies' conduct bordered on aiding and abetting, as when the UK closed off Palestine in 1939,85 or immigration services throughout the Allied world made it difficult for Jews to emigrate.86 This is a more radical type of critique because in linking the Holocaust to the Allies' own moral shortcomings it undermines what is probably one of the foundations of the Allies' legitimacy after the War. S d , it is clear that the Allies only failure was to prevent atrocities that were committed by others, and that they cannot be blamed for starting the war. Fifthly, the 'war critique' points out that the Allies share a more structural responsibility for the war itself. Apart from the obvious case of the Soviet invasion of Finland, this line of argument typically emphasises Munich, and more generally European and American inaction in the face of the invasion of Poland and Czechoslovakia. Going back in time, one might even point to the larger responsibhty of the Allied powers, perhaps not so much for drawing up the Versailles Treaty as for stringently insisting upon its terms long after it had become clear that the &g Weimar Republic would collapse under their pressure. This is a radical critique since it suggests a deeper moral ambiguity about the charges of aggression raised against Germany and Japan. Still, it focuses on the war as a set hstorical piece, rather than upon the Allies' more general behaviour. Sixthly, one might point to a deeper 'segregation' critique. Drawing from critical race theory, for example, one could point out that those assuming the moral hgh-ground in Nuremberg and Tokyo, had either been busily interning enemy nationals in camps during the war?' engaged in racial segregation,88 or in the process of violently putting- down of the first struggles of national liberation.89 Here, the vision is a deeply unsettling one since it targets what the Allies were doing in their own territory or to their own nationals, at exactly the same time as they waged the war. In that context, it also worth mentioning the feminist critique that the entire Nuremberg and Tokyo enterprises could be seen as themselves sitting atop an even larger injustice, one that cut-across both victors and defeated, and consisted in the

M. Gilbert, Aaschwzi~and the Alkes (Mandarin: London, 1981). 85 B. Wasserstein, Britain and the Jews ofEar0pe (Oxford University Press, 1999). 86 S.S. Friedman, N o Haven for the Oppressed United States Poky toward Jewish Refagees, 1938-1945 (Wayne State University Press: Detroit, 1973); R. Breitman, A. M. Kraut, American Refagee Poky and Empean Jewy, 1933-1945 (Indiana University Press: Bloomington and Indianapolis, 1987). 87 C. McClain (ed.), Asian Americans and the LW: v. II, The Mass Internment of Japanese Americans and the Qaestfor Legal Redress (Garland: New York, 1994). 88 M. Mutua, 'Savages, Victims, and Saviors: The Metaphor of Human Rights', 42 Haward International Law Journal (2001) 201, at 21 1. 8 V h k was the defence raised in the Barbie trial. See A. Finkielkraut, Remembering in Vain: the fias Barbie Trial and CrimesAgainst Hamanity (Columbia University Press, 1989). 84

230

Filznish Yearbook ofhtemational Law (Vol. XI& 200 7)

systematic obfuscation and consequent demeaning of the violence inflicted on women in the course of the conflicts.m Finally comes the ultimate all-encompassing critique, onpally made by Heidegger, that it is 'humanism' itself, as the elevation of man above all else, imposing his techno1ogm.l domination over nature, which is ultimately responsible for the Holocaust.91 The IBM machines that were the pride of the Nuremberg tribunal's translation service were the same that were used to assist the Holocaust's bureaucracy in micro-managmg horror. The depth of capitalism's blindness to evil during the Second World War has surfaced only too crudely in the past decade. By this stage the ttr p o p e critique is so stretched that it becomes, effectively, an immanent 'omnium' critique, ascribing responsibility for the human devastation wrought by the Nazi r e p e to the very ideal that claims to punish those responsible for it." This is the most radlcal critique of all, since it attacks the very value system of the Allies by suggesting that barbarity and civhsation are but two faces of the same corn. Whatever one thinks of these criticisms taken separately, an image emerges gradually that seems substantially more complex than the one suggested by international criminal justice's selective accounts. The point here is not to delve in any detail into any one of these criticisms. Nor is the argument that the responsibilities involved are of a very different nature relevant: they may or (most likely) may not be, but that is not the issue. Rather the point seems to be s o m e h g like this: the above critiques overlap to a certain extent, and have witnessed various bouts of popularity or oblivion depending on chance, historical research and the mood of the times; at the same time as they overlap historically, however, they also subtly exclude each other; this is not because of any logical incompatibility; after all one might think that the Allies could be responsible of all the above shortcomings simultaneously; rather, it is as if each criticism, by indicating a level of the 'appropriate challenge' served to obscure and deflate what might be deeper levels of 'critique'. To concede that the worst thing that the Nuremberg Tribunal did was to fail to condemn the Dresden bombing, for example, is often to 'omit' the question of Allied responsibhty for failing to oppose Hitler earlier in his aggressive policies, and so on and so forth. The sum total of the above is that little by little a 'discourse' about Nuremberg and Tokyo is constructed that subtly reinforces dominant perceptions about the See F. Ni Aolain, 'Sex-Based Violence and the Holocaust - A Reevaluation of Harms and Rights in International Law', 12 Yale Journal of Law and Feminism (2000) 43. See also U. Dolgopol, Women's voices, women's pain', 17 Human Rights Quartet- (1995) 127 (on the treatment of comfort women by the Japanese military). 3' See M. Heidegger, l e t t e r on Humanism', in D. Krell (ed.) Basic Witings (Routledge: London, 1976). 92 2. Bauman, Modernity and the Holocaust (Polity Press: London, 1989). 90

Three Dangersfor the Intematiotzal Cm'minal Cozlrt

23 7

nature of conflicts and the role of the victors. Over the years, that discourse is gradually purified by the exigencies of a selective memory as lawyers define more and more issues out of the law, into history, politics and the like. By the time the issue is taken up again in the 1990s, the ICC movement will be able to draw on a clean copy, one free of all dissonance that can be used as a blue-print for the next grand stage in international criminal justice's planning.

The Hague and Arusha We now jump to an age very much different from the aftermath of the Second World War, although paradoxically that aftermath, following the end of the Cold War, is still very much in the background. It is crucial to the heavily-connoted narratives that buttress the creation of the ad hoc tribunals that 'these are not the same as Nuremberg and Tokyo' - or at least that they are not the same in all those respects that one might have found wanting. The circumstances in which the tribunals were created, at least, seem very different. It is no longer the case that there is a 'victor' and a 'loser'. Those creating the international criminal tribunals cannot even be said to have been a party to the conficts which prompted their creation. Rather what we have a priori are internal conficts which 'the rest of the world', through the UN, seeks to 'manage'. The tribunals are apparently created with few or no ulterior motives. Whereas Nuremberg and Tokyo had a narrow origin and membership, the ad hoc tribunals are the 'first truly international criminal tribunals'.93 Commentators on international criminal justice do not fail to see, of course, that the tribunals were created by the Security Council, which is not exactly a model of global democracy. The indebtedness to power, however, is dismissed in a variety of ways, either by saying that the West had no major geopolitical interest in the region, or by noting that the creation of the tribunals had the support of all states represented at the Security Council. If politics is found to exist, it comes from outside the tribunals as a result of state fdures to cooperate with law's injunction, shaky Security Council support or manoeuvres within the General Assembly to reduce their budgets. Even if there had been attempts to control the tribunals, the more sophsticated version of the liberal argument is that the tribunals are staffed by lawyers, most of whom bring with them a professional ethos remote from that of diplomats and who have the potential to free the institutions from their political shackles.94 This last is a serious liberal argument that has to be taken seriously, and one should not underestimate the degree to which judges have indeed reserved a few 93 3. Meron, War Crimes in Yugoslavia and the Development of International Law', 88 American J o ~ m aofIntemationalLaw l (1994) 78. See, for example, P. Hazan, L j n d c e face b laggeve: de Ntlremberg b L a H q e (Plon: Paris, 2000).

232

Finnish Yearbook:ofInternational Law (Vol. XII, 2001)

surprises to their creators." Of course, one can underline that the prosecutor's 'turning against its creators' has always remained w i t h reasonable bounds. For example, the Prosecutor mght go as far as to indict Karadzic against the will of dplomatic negotiators, but when the possibility of indicting NATO personnel for alleged war crimes arose, she backed out. Still, although one can criticise Carla del Ponte's style in the circumstances,"6 dispute some of the ICTY's micro-findings (as seems to be the respectable thing to do)," and otherwise think that it is scandalous that Western pilots should fly at altitudes that do not allow them to minimise civilian casualties, it is hard to escape the bottom-line conclusion that the crimes of NATO seem negligible in proportion to some of the indictments issued by the tribunals.98 So it is probably true, and one can admt for the sake of argument, that old style analyses based on a critique of Nuremberg in Tokyo as 'victors' justice', no longer provide us with an entirely satisfjmg conceptual framework within whch to analyse contemporary international criminal justice. This is not to say, however, that international criminal justice has done away with the problem of power once and for all. It may simply be, for example, that the sources of bias have to be searched deeper. Indeed, if the hypothesis that some of the tribunals' biases are (and, possibly, have always been) traceable to the ideology of criminal justice rather than strict manipulation is correct, the problem may have been merely displaced. Power is internalised into the law: the prosecutor does not need to receive instructions on how to behave since her professional practice is already profoundly embedded in the power to which she owes her function. Indeed, on closer inspection, there remains implicit in much of international criminal justice a commitment to narrating social reahty in a way that fundamentally narrows down the range of legitimate voices. The criticism that comes most naturally to defenders of international criminal justice reminiscent of Nuremberg is of the more tradtional tu p o p e type. So, for example, the temptation to criticise NATO for crimes committed during its Kosovo

95 See, F. MCgret, Xeview Essay: The Politics of International Criminal Justice', Empean Jo~rnalof InternationalLaw (forthcoming). 96 P. Benvenuti, 'The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia', 12 E~ropeanJournalofInternationalLaw (2001) 503. 97 See, for example, M. Bothe, 'The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY', 12 Empean Jo~rnaIoflnternational Law (2001) 531. 98 See generally, Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000).

Three Dangersfor the International Cm'minal Court

233

campaign has simply proved impossible to resist." m e pointing at the relative innocence of Doenitz, or perhaps deploring Dresden in a footnote, this is the 'appropriately radical' criticism to make, allowing those who associate themselves with it to experience the shiver of contestation out of which reputations for impartiality are built. But the point is truly not an enlightening one and this is typically a line of argument which, in trying to prove too much and too little at the same time, discredits critique. The bombing of one TV station or the use of depleted uranium are but poor substitutes to the massive moral charge levelled against the Allies after the Second World War for the razing of entire cities. That criticism, in fact, seems to miss altogether the extent to which the global power structure has undergone a metamorphosis, and the attendant consequences for the way in which we should frame issues of responsibility. The point in fact may be precisely that NATO genuinely does not need or want to commit war crimes, and only does so occasionally as a result of operational blunders that are immediately reframed as so many (sub-optimal) public relations mistakes. Ours is not a world where two equal blocks fiercely fight each other in a kind of moral equivalence, such that in not accusing oneself of something very much like what one accuses the other, one would immediately discredit the enterprise of international criminal justice. Instead, it is a world marked by profound inequahty of access to the means of violence, where precisely the contrary may be true. In that world, responsibhty is more diffuse, because action is more interdependent. But violence is also more asymmetrical, because power is more unequal. There is, first, the violence of those who 'do'; that is the violence of One who wields the machete'. Then there is the violence of those who occupy a privileged position such that their violence never needs to be inficted directly: all that may sometimes be required is to 'allow' others to slip into the downward spiral of destitution and anomie that one has largely contributed to create. It is never too late, after the fact, to pose as the victims' saviours. In that world, it would seem legitimate to ask oneself whether the conditions of responsibhty have not been substantially reshaped. After all, 'we' have already been 'thereY.Did not the international community promise that what had happened during the Second World War would 'never happen again'? Did it not on repeated occasions promise peace to Rwanda and the former Yugoslavia? Yet this responsibility is systematically glossed over by the international criminal tribunals. Again, the 'international community' would want to tell the story of violence and death, while not being party to it. The trials are about prosecuting those 'primarily' responsible: the Balkan despot, the Hutu ideologue, ethnic leaders and base executioners. The rest of the world is presumed absent and only stumbles in inadvertently as a contextual side-bit of information or when a peacekeeper is Human Rights Watch, Civilian Deaths in the N A T O Air Caqaign (Human Rrghts Watch: New York, 2000).

99

234

Finnish Yearbook ofInternational Law (Vol. XI, 200 1)

asked to testify. The testimony of General Dallaire before the ICTR, for example, began with a lengthy statement by a UN legal representative to the effect that the decision-making process of the UN was rigorously outside the Tribunal's jurisdiction 'unless [the questions] are directly pertinent to determining the individual criminal responsibility of the defendantY,'00 an opinion to which the Tribunal deferred abundantly even when it was not obvious that it should. However, there is ample reason to question the intemational community's role. There is, first, the international community's larger, structural responsibdity. In the case of the former-Yugoslavia: the uncoordinated rush to recognise its break-up,lOl the blind trust in the warmongers, the refusal to take sides, the dubious motivations for sending peacekeepers,l02 and the embargo that prevented the victims from defending themselves. In the case of Rwanda, a long history of colonial involvement whose legacy left a society profoundly chided by race, combined with the often b h d baclung of corrupt elites by a French government obsessed with the Fashoda syndrome, and ready to rnilitarily back some of the most extreme Hutu factions.103 But perhaps the type of responsibility that best captures the nature of these c h a n p g times is the more contingent responsibility that flows from the intemational community having assumed certain responsibilities for peacekeeping in both Rwanda and the former-Yugoslavia, and then having failed to prevent the unspeakable, even when it could have done so at relatively little cost to itself.'" This is, for example, the responsibdity of withdrawing UNAMIR in 1994,lOS and of leaving a feeble UNPROFOR to protect the Bosnian enclaves culrmnating in the martyrdom of Srebrenica.1o"t is a responsibility that involves the higher strata of

See T. Cruvellier, 'The case of the "trompe l'oeil"', Judicial DipIbmay (2000); available at <www.&plomatieju&ciaire.com/UK/Tpiruk/AkayesuUK3.h (accessed 1 April 2002). 101 See P. Gowan, 'Making Sense of NATO's War on Yugoslavia', Socialist Register (2000) 260, particularly section on 'A Theory of a Geopolitical NATO War Directed at the NATO Zone Itself, at 272-280 102 See, by the former UN chief political affairs officer in Bosnia, P. Corwin, D&ous Mandate: A Memoir ofthe UN in Bosnia (Duke University Press, 1995) (arguing that the of UNPROFOR was above all motivated by the desire to stem potentially huge refugee flows into Western Europe). 103 See OAU International Panel of Eminent Personalities, Rwanda: the Preventabh Genocide (2000), particularly chapter 15. 104 S. R. Feil, Carnegie Commission on Preventing Dead4 Confict Report, Preventing Genocide: How the Ear4 Use ofForce Might Have Succeeakd in Rwanda (1998); D. Rieff, Slaughterhouse: Bosnia and the Failure oftbe West (Simon and Schuster: New York, 1995). 105 Linda Melvern, A Peopb Betried The Role ofthe West in Rwanda's Genocide (Zed Books: New York, 2000). 106 D. Rohde, Endgam: The Betrga/ and Fall of Jrebrenica, Europe's Worst Marsacre Since WorU War 11 (Farrar, Straus, and Giroux: New York, 1997). 100

Three Dangersfor the Internationaal Cnhinal C o ~ r t

the UN machinery, and the most powerful states.'()' It is a responsibility that often reached perilous heights of neghgence and which, in some cases, bordered on complicity108 as when blue helmets abandoned the protection of the president of the Rwandan constitutional court,lOg when a Dutch lieutenant-colonel had drinks with Mladic as he emptied Srebrenica of its population,'lo or when, in the more subdued atmosphere of the Security Council, the US delegation insisted that the word 'genocide' should not be used in any official documents.ll1 Here international criminal justice provides us with the spectacle of a bizarre paradox. On the one hand, ever more general concepts of inchoate or command responsibdity are being drawn up to indict a variety of suspects, under the imperious injunction that only individual accountability can ensure the h d of personal responsibility that will one day prevent genocides. According to one famous formula, for example, anyone in a position of command k h o knew or should have known that crimes were committed by his subordinates and faded to prevent them' can be found @ty of the correspondmg international crime. International law, moreover, is perfectly capable of being informal when it wants to be: it is only to be expected, for example, that in the chaos of violence neat herarchies will not be ready available and de facto control will suffice, allowing command responsibility to be extended to civilians.112 On the other hand, international law is prompt to reassert its commitment to formalism where the UN or, perhaps more importantly, its member states, are accused. There, it goes without saying that the responsibility of the UN cannot be of remotely the same kind as that of even some of the most remote executioners of the genocide since, after all, peacekeepers were not themselves 'involved' in the genocide, and at any rate did not have a mandate to stop it. Asked by the widows and survivors of Srebrenica whether any charges for complicity in genocide would be contemplated against the UN hierarchy, a leading member of the prosecutor's office noted that, although '[ilt might be theoretically possible for someone to come up with an allegation3, 'some common sense had to be exercised' and that 'to suggest that the UN in it's role as a peace-keeper trying to bring about peace in the 107 M. Barnett, 'The Politics of Indifference at the United Nations and Genocide in Rwanda and Bosnia', in T. Cushman and S. Mestrovic (eds.), This Time We Knew: Western Responses to Genocide in Bosnia (New York University Press, 1996) 128-162. 108 S. Power, 'Accessory to Murder?, The New York Times, 11 February 2001; B. Jagger, The Betrayal of Srebrenica', The E~ropean,15 September - 1 October 1997,14. 109 P. Bone, 'UN Faces Genocide Suit', The Age, 10 January 2000, at l. 110 J. Willem Honig and N. Both, Srebrenica: Record of a War Cbme (Penguin Books: London, 1996). M. Danner, 'In the Killing Fields of Bosnia', New York Review ofBooks, 24 September 1998. "1 S. Power. 'Bystanders to Genocide: Why the United States Let the Rwandan Tragedy Happen', 288 The Atlantic Montbb, September 2001, at 84. 112 See, for exampie, Prosemtor v. ZgniI D e h h et al, Case No. IT-96-21-T, T d Chamber 11, Judgement (16 November 1998) para. 354.

236

Finnid Yearbook ofIntemational Luw (Vol. X I , 200 1)

former Yugoslavia, in particular Bosnia, had motives which would amount to crimes

. . . was unreahstic'. The same official went on to describe the whole thing as 'nonsense' and to point out that the Tribunal would 'not be taking that particular complaint seriously.'"3 There is little doubt that h s is an eminently faithful rendering of at least part of the liberal common sense. It is also important to understand, however, that, in fme-tuning the gates of formalism, this common sense is what leads to a radtcal dtchotomization between bottomless gudt and legal absolution. As a result, institutional or state failures are typically spread across large swaths of unaccountable bureaucracies, even when personal involvement was and has been shown to have been crucial.114 Let justice be meted to the machete-wielders, and statesl15 and the UN116 c o n h e themselves - at best - to the arduous soulsearching of commission reports. So what is in a sense progress (the soul-searching that has occurred would probably not have occurred without the moral pressure generated by the international criminal tribunals), can also be interpreted as another face-saving measure that diverts attention from what might have been a full and methodical accounting of responsibilities.117 In view of the above, one might think that one defence counsel before the ICTR was well justified in asking why his client, a Rwandan bourgmestre with few means of coercion at his disposal, should have been asked to oppose the genocide when UNAMIR, with several battalions at its disposal, failed to do so -if not as a personal defence, at least as a larger comment on Rwanda and the international community."8 Similarly, Erdemovic (a lowly soldier in the Bosnian-Serb army who participated in the Srebrenica massacre under threat of death and pleaded &ty before the ICTY) might nonetheless be inclined, as he contemplates a decade in prison, to ask why he should have to bear alone the dubious honour of being the f~lrstperson to be condemned by the Tribunal, while 'Srebrenica Accusations against UN Chiefs Dismissed', Rezlters, 9 February 2000. H. J. Burkhalter, 'The Question of Genocide: The Clinton Administration and Rwanda', 11 World PO@Journal (1994-95) 44. "5 Bakker Commission Report (2000); AssemblCe nationale, Rapport d'information no 3413 @osipar la mission d'injomation commne sur les ivinements a% Srebrenica (2001); The Betrqal of Srebrenica: W& Did the Massame Happen? Will it Happen Again Hearing Before the S~bcommitteeon International Operations and Human Rzghts of the Committe on International Relations Home of Fhpresentatives one Hundred F@ Congress Second Session, (1998); Rapport de h Commission d'enqutte parlementaire belge sur le Rwanah (1997); Mission d'information sur le Rwanda, Rapport d'i$ormation no 1271 (1998). "6 Report of the Secretary-General pursuant to General Assembly resolution 53/35, The fall of Srebrenica, A/54/559 (1999); Report- of the Independent Inquiry Into the Actions of the United Nations During the 1994 Genocide in Rwanda, 15 December 1999. "7 J. Gow, Tbuqbh ofthe Lack of Will (Columbia University Press: New York, 1997). 118 See <www.diplomatiejudiciaire.com/UK/Tpiruk/ubu33.htm>(accessed 1 April 2002). "3

114

Three Dangersfor the Internaional Cm'minalCond

the UN headquarters that systematically denied UNPROFOR requests for air support at the time merely undergo a minor reshuffle."g That there are fairly profound ideological presuppositions behind the contrast should be obvious. There is a sense in which one begins to finish where one started: with the deep granite foundation of all liberal dogma. The bystander's responsibility is one that the ideology of criminal law is trained not to see because of profound assumptions about liberal individualism that may go at least as far back as late nineteenfth Century liberalism,l20 and that see the indrvidual's dignity (and even his sanctity) as l p g above all in its freedom vs. its responsibilities. Accordrng to one classic common law formulation: Suppose A, standing close by a railroad, sees a two-year-old babe on the track and a car approaching. He can easily rescue the child with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the chrld's injury, or indictable under the statute for its death.121

From such premises, crimes for failure to act are invariably associated with totalitarian regimes: during the Cold War, for example, such crimes were seen typical of the Soviet Union.122 At least five things can be said about this construct, as applied to the international community represented by its peacekeepers. Firstly, that it rests on a notoriously shaky philosophical conception of what is a positive 'act' as opposed to an omissionl23 whose origins themselves lie in an Austinian fallacy of sorts.'" The soldier who could step in to save human is as much involved in an 'act', as the machete-wieldmg criminal-in-the-makmg. He is in fact busily involved in the act of not acting for the particular end of stopping the machete wielding. The prioritisation of the frnal act or of a single act in what is often 'l9

J. Julliard, 'Faut-il juger Janvier?', Le Nouvel Observateur, 3 October 1996.

The example that is most often quoted is that of Lord T.B. Macaulay, J.M. MacLeod, G.W. Anderson and F. Millett, Wotes [on the Indian Penal Code by the Indian Law Commissioners]' in Miscelhneous Worh of lord Macadq edited Ly his sister Lady Treve&an, in Five Volumes, (New York: Harper, 1MO), vol. W ,at 177-327. 121 Buch v. h o l y Manufctun'ng Co., 69 N.H. 257, 44 Atl. 809 (1897). See also Union Pac. Ry. Co. v. Cappier, 66 6 n . 649, 72, p. 281-282 (1903) (not condemning railroad employees for failing to offer assistance to one who bled to death beside the tracks). See J. Hazard, 'Soviet Socialism and the Duty to Rescue' in K.H. Nadehnann, A.T. Von Mehren, and J.N. Hazard (eds.), XXth Centuty Coqbarative and Conficts Law: Legal Essgs in Honor of H e d E. Yntema (Sythoff: Leyden, 1961) 160. 123 R. Shapira, 'Structural Flaws of The "Wiied Bodily Movement" Theory of Action', 1 B u m Criminal Latv Review (1998) 349. 124 R.F. Stalley, 'Austin's Account of Action', 18Joudofthe Histoy ofPbihsopt?y (1980) 453. 120

238

Finnish Yearbook ofhztematiod law (Vol.XI1;2001)

a long chain of causation must surely sometimes count as simply a civhsational prejudice. There are in fact many criminal systems outside the Anglo-American tradition (and some w i b it) that r e c o p s e a concept of criminal responsibility for failure to act. Secondly, that the idea that guilt is an entirely either/or concept introduces a false dichotomy, and in the process sacrifices a great deal of the subtlety that should go into our understandmg of the complex phenomenon of mass atrocity. Even without going as far as the concept of 'commission by omission', there would seem to be space for a specific delictual responsibility for the act of not preventing an international crime of the gravest kind125 under a label such as the French 'nonassistance ii personne en danger'. Thirdly, that in a profoundly unequal world, h s prejudxe is likely to favour systematically those who can afford to stand back, at the expense of those whose back is against the wall. In defLning violence as strictly that violence that is physically delivered to its recipient, one focuses on the tail-end of a much larger phenomenon, in a way that drastically reduces the scope our moral outlook. At a certain level, the systematic clmounting of liab&ty by omission is profoundly complicit with the perpetuation of structural violence.126 Fourthly, that in the case of the peacekeeping forces, the reasoning is based on a fallacy. Saying that Akayesu and Erdemovic should be held liable to the full extent of the law but that the UN should not be held liable in any way, amounts to saylng that the UN was a casual passer-by in Rwanda and Bosnia, rather than an agent standing in a particular and responsibility-conferring relationship to the populations under its protection. In fact, although the UN might not have been quite in the same position as a rescue worker in a domestic scenario (a typical exception to the non-liability for omissions rule, even w i t h the strictures of the common law), nor could it claim to be a complete outsider.'" This is especially so from the moment its provision of security was partially or totally (for example in Bosnia, as a result of the arms embargo) supposed to substitute local means.128 And although neither UNAMIR nor UNPROFOR were explicitly charged with the task of preventing 125 Whatever one thinks of the causation problem, it says nothing about duties owed to the community at large, violations of which can give rise to a separate liability. See A. D'Amato, 'The "Bad Samaritan Paradigm"', 70 Nori%westemLaw Review (1975) 798. 126 This is a view classically associated with Marxism. For an enlightening overview see, J. Harris, 'The Marxist Conception of Violence', 3 PhiZosophy and Public AJairs (1974) 192. 127 See B. Williams, 'Is International Rescue a Moral Issue?', 62 S o d Research (1995) (noting that the UN's has an 'institutional saliency' that makes it roughly comparable to the police in the domestic context). 128 A. J. Vetlesen, 'Genocide: A case for the responsibility of the bystander', 37 Joumai ofpeace Research (2000) 519 (distinguishing between 'passive bystanders' and 'bystanders by assignment', and putting UN peacekeepers in the second category).

Three Dangersfor the Intmatonal Ct;;minalC O H ~

239

genocide, one might think that the clarity of the international community's obligation as expressed in the 1948 Convention could at least have partially made up for the intrinsic ambiguity of their mandates. Fifthly, that in the process the contours of the 'relevant' moral community are o u t l i n e d . ~ 2 ~ hrelevant e moral community is that which is implicit in the highlighting of a special duty to act (for example, that of the parents vis-i-vis the child, of the employer vis-i-vis the worker, or of sailors vis-his those in peril at sea), as the community (respectively, that of the family, the fm or seamen) that requires us to intervene even at risk to ourselves. It is not the least of the paradoxes of international criminal justice that the relevant moral community suggested by the jurisprudence of the tribunals often ends up being narrowly confined to the state (or at least a particular ethnic/geographic configuration), in flagrant contradiction of the global ideology of intemational criminal justice's own proclaimed cosmopolitan ideals. In a murky world where responsibility is often structural (and where, more often than not, today's 'most wanted' is yesterday's discreet ally), therefore, criminalisation serves to draw the line between 'us' and 'them', the malevolent warlord and the benign peace-keeper, 'they' who started the violence, and 'we7who merely did not do well enough in stopping them but will have a better go at it next time. As such, intemational criminal justice can be the smokescreen that lets the hdden 'us' of international criminal justice get away without an examen de conscience. So international criminal justice manages the considerable feat of both legitimising and fuelhg war on the one hand (Kosovo), and justifjmg the non-use of force on the other (Srebrenica, Rwanda). One would like to think that the ICC would be entirely dfferent. It seems more hkely, however, that it d bring more of the same. After all, at least the ad hoc international criminal tribunals of the 1990s benefited from a sort of universal legtirnacy in that they were well anchored w i h the UN system. In that respect, an ICC with no reasonable mid-term prospect of universal membership, may merely replace a partial jurisdiction by a partial membership. It is not obvious that in doing so it will not end up representing a partial regression from the ad hoc international criminal tribunals it was supposed to improve upon.

Conclusion The ideology of global criminal justice brings with it a number of myths. Firstly, that international criminal justice can constitute itself as a comprehensive system of law 129 See 0. Kallscheuer, "'And Who Is My Neighbor?': Moral Sentiments, Proximity, Humanity', 62 S o d Research (1995) 99 (showing the inscription of any concept of good Samaritan in a relevant concept of a moral community).

Finnish Yearbook ofInternational Law (Vol. XII, 200 1)

and order reminiscent of domestic systems, and as such substitute itself to the political mores of the world as a means of managmg international relations. Such a claim seems destined to create dsappointment at best, and to serve as a convenient smokescreen for the world's structural problems at worst. Secondly, that international criminal justice is fundamentally different in its modtls operand; from the politics that it seeks to keep at bay. Such a claim seems premised on a poor understanding of the nature of legal decision-making in a st.11 remarkably antagonistic world. The danger is that, for both these reasons, international criminal justice merely serves as a vector of identity politics and makes itself uniquely susceptible to manipulation. The record, in that respect, does not warrant unqu&fied optimism. That international criminal justice will not do most of the things that it claims to do does not mean that it will not achieve anythmg or indeed, for that matter, that meaningful. International criminal tribunals can it wdl not achieve an-g contribute to establishing a historical record of past events that is substantially more balanced than would have been obtained otherwise. Indeed, in a Durkheimian sense, the ICC may express the existence of the society underlymg it, by designating its negation.130 That may in itself be a sipficant step. Certainly, one can think of all kinds of reasons why one might want to live in a society that did not tolerate impunity. But the analysis by ideology shows that there is always likely to be at the same time more and less to international criminal justice than those in charge of it and who promote it are likely to want to see. How much h s ideology wdl affect the functioning of the International Criminal Court and to what extent the ideology can be exposed raises some classic questions about the nature of ideology. It may be that the uncovering of ideology as ideology, in presumably getting the sting out of false conscience, carries a fairly powerful antidote against alienation. Perhaps, in inoculating a bit of political savvy, one can vaccinate international criminal justice a p s t succumbing to politics altogether. Then again, perhaps h s is simply wishful thinking and, to the extent the ideology does strike at the heart of the concept of criminal justice, it is simply beyond the reach of any superficial remedy. At any rate, partisans of international criminal justice would be well advised to learn to live with politics, if they do not want to be absorbed by it. Politics should not be a word to banish from the repertoire of international criminal law and the ICC prosecutions should be very much 'politicdy-motivated', if one understands by politics a sensitivity to circumstances, an intelligence about the consequences of one's decisions, a commitment to openness and dialogue, and an awareness that law does not relieve us of the need to make choices but merely provides the framework '30 See, for example, E. M. Wise, 'The International Criminal Court: A Budget of Paradoxes', 8 Tuhne Journal Oflntemationale9 Cozqbarative Law (2000) 261.

Three Dangersfor the International C~imina6Coulzf

24 1

wherein such choices become meaningful. If and only if the prosecutor's decisions are marked by a commitment to taking responsibhty for his actions in a complex world marked by the stochastic and in which no decision is ever fully accounted for by the law's operation, wdl the ICC have a chance of fulfLLling some of the very real and respectable aspirations that have been invested in it. In the end, however, the one incontrovertible line is that the ICC will not replace the political, any more than it is in a fundamental sense incompatible with or an alternative to it. Judith Shklar had perceived early on what it is hoped all defenders of international criminal justice suspected all along, but could somehow never bring themselves to put at the forefront: The idea that all international problems will dissolve with the establishment of an international court with compulsory jurisdiction is an invitation to political indolence. It allows one to make no alterations in domestic political action and thought, to change no attitudes, to try no new approaches and yet appear to be working for peace.l3l

By the same token, the explanation through ideology does leave a few obscure corners. No matter how self-sustaining or powerful ideology is, it is unlikely to flourish if it is not anchored in certain social interests. The reifymg of ideology as abstract superstructure, then, risks precisely neglecting the extent to which ideology is necessarily produced by s o m e k g which may not be quite class-interest but will often look very much like it. As the Rome Statute enters into force and the ICC becomes a reahty, therefore, the time seems ripe to turn to that ?CC movement' which has thus far remained discreetly in the foreground but which seems destined to pull many of the strings of international criminal justice. When the moment of reckoning comes (or preferably a little beforehand), the broodmg presence of ideology should incite the international legal profession to a measure of introspection. Indeed, the ICC project seems at time indistinguishable from the professional community that sustains it to the point that, in studying one without the other, one is almost bound to reproduce some form of self-legitimising ideologcal dscourse. The most compelling way in which to configure the turmoil that the international legal profession is going through in the wake of the emergence of international criminal justice, is to picture it as a Bourdieusian 'field' of competing professional strategies vymg for internal domination and external legitimacy.132 The See J. Shklar, Lgabsm: LW, Morah, and Pobtical T12ah (Harvard University Press, 1964) 134. P. Bourdieu, 'La force du droit. -Eltments pour une sociologie du champ juridique', 64 Actes a2 la recherche en sciences s o d s (1986) 3. In the field of human rights; Yves Dezalay and Bryant Garth's From Notables ofthe Foregn Poby Estabbshment to the International Market of Professionah of Phikanthmpy and Human Rights: Strategies for Power and the Social Construction of a New Field of State Expertise (American Bar Foundation: Chicago, Working Paper 9818,1998) is exemplary of that particular sensitivity. 131 '32

242

Finnish Yearbook ofhtemational Law (Vol, XII, 200 1)

concept of 'fields' can help one understand and appreciate the particular kind of medation which the international legal profession manages between law's autonomy and the external dctates of power, a mediation that is irreducible to either of these categones. The 1990s find the discipline in a paradoxical condition. On the one hand, the end of the Cold War seems to provide it with the kind of historical opportunity it had been aspiring to for so long. In the mood of enthusiasm following the fall of the Berlin Wall, no project seems too ambitious for the builders of a New World Order'. On the other hand, nothmg seems to go as planned and the kind of glorious revival of the Charter's collective security provisions that international lawyers had envisaged is still-born after the Somali debacle and the prospects of increasingly unilateralist US administrations. This leaves the UN to the distinctly less glorious task of m a n a p g a patchwork of peacekeeping operations - in which it will take much pride but wiU eventually lose much of its honour. To make matters worse, globalisation throws the discipline in a state of advanced disarray. The solutions of a professional community trained in the management of inter-state relations seem of decreasing relevance in an age in which regulation increasingly takes fluid transnational forms, and in which, after the last great codification enterprises (such as the Convention on the law of the sea), skills linked to the assessment of consular imrnunities, border disputes or even collective security are in comparatively short demand, while eager young professionals are in abundant supply. The dsciphne, therefore, is in sore need of reviving its dwindling fortune in a way that puts it back on the track of increasing returns. In that context, international criminal law presents itself as one of the few subdisciplines - perhaps alongside international trade law or something lrke European integration- that can invest the practice of international law with continued meaning, whde permitting international lawyers to undergo a prestigious reconversion. Around the practice of international criminal law emerges a new professional class of legal entrepreneurs. Whereas the comeiller du Ptince might have been the ideal-typical professional model of classical international lawyers, the key professional referent for the new class is what might be called the 'expert in horror'.'33 The 'expert in horror' may be a prosecutor, a forensic scientist, or simply the assistant to a judge. He may be a civil servant, an international bureaucrat, an NGO delegate, or an academic with an agenda. But he ideally combines a

133 The expert in horror might be seen as a figure corresponding to that of the 'expert in virtue', intervening when the latter's discreet expertise in edgmg societies towards democratic governance has not succeeded and a more radical treatment is required, both for the societies at stake and for the rest of the world. See N. Guilhot, 'The democracy makers: foreign policy activists, political scientists and the construction of an International market for political virtue', PhD thesis, European University Institute: Florence (2001).

Three Dangersfor the International Ciminal Comt

technocratic mind, with a (genuine) liberal bleeding heart, and a casual cosmopolitan veneer (English required, other languages a plus). That the 'expert in horror' should emerge as a result of changing professional agenda does not mean that he does not serve a specific function in the international sphere. On the contrary, it is precisely his capacity to simultaneously respond and shape demand that is the key to rendering himself incbspensable. The 'expert in horror', in fact, has a very specific place in globalised late modernity: his role is to provide insulation against the permanence of radical evil, the uncomfortable banality of evil in a world in which it has become a little too close for comfort by symbolically r e a f f h g the innocence of the system that gave rise to it; to process that evil through the recognisable bolts and cogs of a high-tech legal machmery in a way that makes it palatable to cosmopolitan audiences; as a result, to recycle horror into utopia; finally, to be the last precarious bulwark agamst the forces of evil, irrationality, dfference. In exchange, the 'expert in horror' gets all the considerable legitimacy that comes from being associated with the heroic task of combating evil on the one hand, and challenging state conservatism on the other. Indeed, whilst at one remove from practitioners of classical international law, the new class manages to monopolise much of the discipline's legitimacy. This it does most notably by emphasising its (irresistible) proximity to the real-life suffering of real-life people, those people that were so obsessively absent from classical international law textbooks. Conversely, it is quite evident that the 'expert in horror's' rise is not fully accounted by his larger social usefulness, a 'usefulness' that is itself in need of being constructed in the face of competing interests. For the international lawyer, to specialise in international criminal law i s to be aihere things are happening' and to reclaim a sense of relevance by posing simultaneously as the caretaker and redeemer of the state. In that respect, international criminal law presents itself as a happy end for international law: one that saves intemational law from its perceived irrelevance as a system of coexistence between states, and endows it with the moral sipficance it had in a sense always been striving for. International criminal law manages the dual challenge of being 'more like law', whde also being 'more like morality'. Academic international lawyers are at last going to be able to look their colleagues from domestic law and international relations straight in the face; for a profession traumatised by its imminent loss of prestige, the construction of brick and mortar institutions, as an almost visible vindication of the international community's substance, seems to herald a new-found concreteness: international law must be law -it sends people to prison.134 P

-

P

134 The argument is reminiscent of that other great hopeful reasoning of international law textbooks: intemational law must be law since there are legal departments in foreign affairs ministries. D. Carreau, Droit internationalpublic(Pedone: Paris, 1999) at 8.

244

(Vol. XlI, 2001) Finnish Yearbook oflntemational LW

Hence in retrospect, the move to 'international criminal justice' can be seen as one of the greatest operations of conversion of symbolic capital of the 1990s, on a par only, perhaps, with the conversion of erstwhile kremlinologues, bi-polar neoreahsts and other guardians of outdated Cold War wisdom, into the prophets of the new transnational disorder.135 The transformation may of course lead to various turf battles with criminal lawyers, for example, not to mention international law's various sub-di~ciplines.~3" lot of what happens in the field can be interpreted as so many criss-crossing strategies of captation and struggles for the monopoly of definition of what the means and ends of the hscipline are. But international lawyers feel fairly confident that they command the connections, the aura and the noblesse ob&e to make themselves indispensable (whether that judgment is justified is another question). At any rate, the competition need not be a zero-sum game and a great deal of the professional posturing aims at instoring a new 'division of labour' among various sub-groups vying for domination within the legal field. In fact, the new &vision of labour wdl be all the more workable if it in turn entrenches situational privileges from which the dvidends of expertise can be squeezed. The field is accordingly bristling with new initiatives that seek to draw the boundaries between the new expert 'inside' and the lay 'outside': attempts to organize an international bar association, international criminal law societies, new journals, new research projects, new diplomas. T o be sure, the conversion also involves cutting a few doctrinal corners. Nodung, however, that cannot be stitched back by the profession's legendary flexibility. The urge to publish on international criminal law, in this context, can be interpreted as an attempt to normalise the dsciphne so as to develop the kind of stabilised habitus from which professional competence derives its legitimacy. The field, at any rate, offers many possibilities of reconversion for those not too ideologically regarding, provided one seizes them early enough. (Indeed, to the extent that the necessary skills require a fairly long-term accumulation of social capital, the professional environment of international criminal justice also provides an ideal fonun to stage the kind of inter-generational challenges that gve their real human bite to paradigmatic shifts).l37 The charting of the (permanently, it seems) 135 D. Bigo, 'Grands dtbats dam un petit monde. Les dtbats en relations internationales et leur lien avec le monde de la stcuritt, CtlIttlres et Conpits (1996) 7. 136 See, for example, the model developed by Y. Dezalay, ""Turf battles" or "class struggles": the internationalization of the market for expertise in the "professional society"', 20 Accotlnting, Oqanixations and Society (1995) 331. 137 One of the crucial dimensions of the emergence of more or less permanent institutions of international criminal justice, therefore, is its increased professionalisation, away from its heroic origins as represented by the gentleman lawyer of the Taylor or Ferencz generation. In that respect, international criminal justice charts a course that is already apparent in other fields of global legal

Three Dangersfor the International Criminal CO&

245

virgin discipline of international criminal law offers almost unlimited prospects of technical know-how; experts on 'transitions' seem to occupy a well-carved niche that will ensure that their wisdom is solicited to weigh the more 'ponderous' questions associated with justice, memory and democracy; adepts of the new victimology can gve international law the 'human face' it so badly needed, whde at the same time exploring some of its more distant tortious ramifications; the discipline lends itself ideally to all kind of loose theorizing proclaiming the end (but not quite) of the state, the advent of Humanity as the foundation of global relations, and the not-quite-right-yet-but-clearly-a-step-in-the-right-direction doxa that makes for great symposium issues and keynotes addresses; all in all, in addtion to a keen eye for the field's prospects for monetarization, the ICC movement has all the trappings of an establishment in the making, replete with honours and hierarchies. International criminal tribunals even allow an opportunity to symbolically test whch of the Anglo-American or continental models of procedure is the most appropriate, a major stake in its own nght in strategies vying for the domination of the market for global legal services. With the emergence of an 'international criminal procedure', one is at last going to know which of the two systems is most faithful to the liberal ideal of the rule of law. . . The international lawyer might become a little less like a diplomat and a little more like a travelling salesman, but at least by promoting a cultural model (as opposed to conventional state interest) he retains a representational function that preserves his organic links to the public sphere. Comfortably leaning against the financial cushion of major 'global' philanthropic foundations,l38 the ICC movement organises itself as a 'transnational advocacy networld139 h o u g h the well-tried recipes of academia: the mixture of incestuous cross-inviting and inter-quoting which alone can guarantee the permanence of positions and validate professional strategies. For the young-andaspiring in search of patronage, it generates ample opportunities for socialisation in the form of law clinics, internship programs and summer schools that constitute a bottomless reservoir of good-will and the guarantee of the movement's permanence through intergenerationalrenewal. After a while, the movement gathers enough force to switch from accompanying the state agenda to contributing to shaping it. It combines just the practice. See for example Y. Dezalay, 'De la faillite au redressement des entreprises en difficult& la redkfinition de la division du travail entre le notable, l'homme du droit et l'expert, et l'irnportation du modde amtricain du professionnel du conseil aux entreprises', 7 Droit et Socie'te'(1987) 379. 138 Although rarely acknowledged, the human rights movement's historical links to global capital have been cogently documented. See, for example, Y. Dezalay and B. Garth, Droits de l'homme et philanthropic h6gCmonique7,Actes de b recherche en sciences sociales (March 1998) 23-41;and, in the context of the ICC, J. J. Tierney, Jr., 'Lobby for Intemational Court Gets Grants: Ford, MacArthur Fund World Federalists' Pursuit of Global Government7,Foundation Watch (February 2001). l39 See M. E. Keck and K. Sikkink, 'Activists Beyond Borders: Transnational Advocacy Networks in Intemational and Regional Politics', IntemationalSoGialScienceJomal (l998) 89.

246

Finnish Yearbook ofIntemationalldzv (Vol.XII, 200f)

right amount of exoticism, critique and new-ageism against the backbone of impeccable professional credentials and commitment to the dominant positivist epistemology authenticated by passage through the best global universities, that it can (almost) pass as both the alternative and the mainstream. Its strength, above all, consists in its capacity to weave alliances, thanks to the extreme professional mobdity of its components parts, between academia, activism, and the state apparatus, allowing it to play with different social 'hats': one day a stem professor, the next an NGO luminary, the third a know-better realist. That corporation, in turn, is intrinsically committed to promoting the solutions that value its professional expertise, not simply in the vulgar sense of creating job opportunities as is sometimes suggested, but more generally in the sense of conferring a sense of social valorization upon its endeavours. International criminal lawyers pay lip-service to ideas of complementarity in the context of the ICC and it has become a clichi that a good permanent court is one that will not have to use its jurisdiction. But it is difficult to take the profession at its word and, sure enough, on the first possible occasion grand designs resurface that prioritise global jurisdiction.140 Implicit in many of the solutions promoted by the field, thus, is the assumption that an international criminal tribunal is always better than a national one and generally, that global solutions are the best solution to international problems. The profession sees the world in its own image: as a cosmopolitan place of boundless opportunities for its discreet technologies of narration. What will become of the ICC, in this context, is not for t h s article to explore. But perhaps a few words of historical hindsight would be in order. In 1947; Karl Jaspers published what was to become at once a classic and perhaps one of most lucid works of soul-searching of the twentieth century that paved the way for subsequent public atonement for the crimes of Nazi Germany. In The Question of German Guilt,141 Jaspers distinguished between four concepts of guilt. 'Criminal gulf concerns those crimes that are 'acts capable of objective proof and violate unequivocal lawsY.l42'Political guilt' is that which 'results in my having to bear the consequences of the deeds of the state whose power governs me and under whose order I liveJ.143 'Moral g d t ' is the individual's responsibility for all his deeds 'including the execution of political and moral ordersJ.i~ ' ~ e t a ~ h ~ s iguilt3 c a l derives from the fact that 'there exists a solidarity among men as human beings that makes

140 See F. Mkgret, 'Justice in Times of Violence', European Journal forthcoming). '41 Jaspers, sqra note 1. 142 Ibid., at 31 143 Ibid. 144 Ibia.'

of

International

Lazv (2003,

Three Dangersfor the International Cm'minal Coufi

247

each co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge'.l45 There would seem to be several ways of re-readmg Jaspers today. One superficial, sociological re-reading might be to note that the material conditions of global existence have changed so that at least the frontiers of the various categories have been substantially redefined. 'Legal @tJ, for one, has certainly seen its scope expanded as more and more norms have soliddied into criminal prohibitions. In a world in whch various forms of democracy are the dominant model in precisely those polities that have the greatest potential for impact, moreover, one can less than ever claim - as one might possibly have in a totalitarian state - 'political innocence' from the decisions of one's state, when all that is involved may be apathy in resorting to democratic channels. 'Moral &t' might be said to derive increasingly not only from the following of state orders, but also from following orders issued by various forms of inter-governmental organisations and structures of governance. And while one could conceivably claim that one d d not know. about the Holocaust, such pretence is becoming ever more dfficult in an age of ubiquitous media, with the consequent extension of 'metaphysical g d t ' to almost universal proportions. Another way of looking at TbeQuestion ofGeman Guilt fifty years later would be a Foucauldian knowledge-as-power type of analysis, pointing out that Jaspers' work is merely, in at least one dimension, a locus classims of liberal pigeon-holing. However heartfelt his account, his commitment to elucidating the meaning of a particular tradition was bound to reproduce the common sense of the time. On that basis, we should develop new, perhaps more all-inclusive, post-modern concepts of responsibility destined to reintegrate the excluded middle. Such concepts, in turn, would better make sense of our intuition that responsibihty is always at the same time localised and dffuse, individualised and all-pervadmg.146 But perhaps all of the above only goes to show that surely criminalisation is not a panacea. Perhaps the point in the end is not to suggest that criminal responsibihty should be extended ad injnitum, as much as to show ad absurdurn how fragde that criminal responsibility that is already imposed really is. The new temples of justice should not be tilled with the resounding trurnpets of the end of history, but by the deafening silence of our own shortcomings.

I h d , at 32. Along the lines, for example, of Larry May's reconstructionist Sharing Regonsibilig (University of Chicago Press, 1992). l45

146

This page intentionally left blank

Just Revenge? The Deterrence Argument in International Criminal Law Jan Klabbers*

The other morning I saw a child of about five years old, stark naked, marching along by himself with a swastika flag over his shoulder and singing Detltschhnd iiber alhs. Christopher Isherwood, Goodbe to Berlin (1939)

Introduction The conclusion, in the summer of 1998, of the Statute of the International Criminal Tribunal, has caused waves of cheers and hoorays in international legal circles. For many of us, the ICC is a great achievement, finally f u l f h g a promise made at Nuremberg in 1946.1 While few would claim that the ICC Statute is a perfect instrument, it is nonetheless heralded by many as a triumph for humanity: finally, so we tend to think, international law allows itself to take the prosecution of war criminals and the like seriously, implymg therewith also that finally international law itself aspires to be taken seriously.2 Following the battle cry of the proponents of the ICC, we will soon 'bring an end to the culture of impunity7.3

* Dr J. Klabbers is professor of international law at the University of Helsinki. This paper was first presented at a seminar on International mmminallaw - recent a'evelopmentts, organized at the University of Helsinki on 11 and 12 June 2001. The author acknowledges his debt to participants for their useful comments; still, the usual disclaimer applies. 1 As McGoldrick puts it, the ICC 'represents a historic achievement for international law and the international legal system'. See Dominic McGoldrick, 'The Permanent International Criminal Court: an end to the culture of impunity?', CkminalLaw Review (August 1999), 627-655, at 654. 2 For a critique of international criminal tribunals as instruments to vindicate international law itself, see Lucas W. Andrews, 'Sailing around the flat earth: the International Tribunal for the Former Yugoslavia as a failure of jurisprudential theory', 11 E m 0 9 International Law Review (1997)' at <www.law.emory.edu/EILR/volumes/fall97/andrews.html(accessed 4 May 2001). 3 Notice also that the UN has installed special rapporteurs addressing the topic of impunity. See, e.g., the revised final report of Mr Joinet on the impunity of perpetrators of civil and political rights

250

Finnish Yearbook ofIntemational Laly (VOL. XII, 2007)

While h s feeling that impunity is a bad dung and therewith punishment is somehow proper may have a long history, what is surprising at present is the sheer scope of its popularity.4 In 1919, when lscussing the fate of those accused of war crimes during the First World War, the allied powers demonstrated a serious internal division: for the US, there was nodung sacrosanct about prosecuting war criminals; quite the opposite. The US representatives on the Commission of Responsibilities, Robert Lansing and James Brown Scott, pointed out that [tlhe laws and principles o f humanity vary with the individual w h c h , if for n o other reason, should exclude them from consideration in a court o f justice, especially o n e charged with the administration o f criminal law.5

This type of lssent is conspicuously absent these days: we have all fallen under the spell of international criminal law and the beauty of bringmg an end to the culture of impunity. But why, then, is punishment thought to be good t h g ? Why is it thought desirable that we 'bring an end to the culture of impunity'? Several possibilities are mentioned. Thus, for some, the raison d&-eof the ICC is the protection of victims." Others invoke more systemic goals: thus, punishment would help to reinforce the authority of the violated norms and of the rule of law generally, and reduce the incentive for people to take matters into their own hands: by doing public justice, recourse to private justice will be reduced.' Be this as it may, what I would wish to explore is another argument often mentioned (and, not by coincidence, often mentioned first): punishment may serve as deterrence. In this respect, the purpose of penal sanctions in cases of war crimes, crimes against humanity or crimes against peace or, indeed, more generally penal sanctions for human rights violations, is said to be 'largely coextensive' with the purpose of penal sanctions in national legal orders.* violations, UN Doc. E/CN.4/Sub.2/1997/20/Rev.l (2 October 1997), which strongly adopts a victim's perspective. 4 A rare exception is the balanced criticism of Richard F&, 'Telford Taylor and the legacy of Nuremberg', 38 ColumbiaJournalof TransnationalLaw (1999) 693-723. 5 As reproduced in Michael R. Marrus (ed.), The Nuremberg war nim trial 194546: a documentay histoy (Bedford Books: Boston 1997), at 8. 6 SO, e.g., Philippe Kirsch & John T. Holmes, 'The Rome Conference on an International Criminal Court: the negotiating process', 93 American Journal oflnternationallatv (1999) 2- 12, at 12. 7 Those arguments, and others, are mentioned in Tom J. Farer, 'Restraining the barbarians: can international criminal law help?', 22 Human RightsQuader- (2000) 90-1 17, at 91. 8 Farer, ibid., at 91. But see Shklar, wondering 'whether international criminal law can fulfill in any degree the great function of criminal law - the deterrence of potential criminals'; Judith Shklar, L e g a h : hw, morah, andpolilialtriah (frrst published 1964) (Harvard University Press: Cambridge, MA, 1986) at 187. Brants, in turn, wonders whether the individual focus of criminal law makes it a useful tool to deal

Jart Revenge? The Deterrence Argument in International Cm'minal Law

The deterrence argument is one of the main reasons (perhaps the main reason) underlymg the creation of the ICC: the idea is to ensure punishment and, through punishment, to deter. As Rolf Einar Fife, a member of the Norwegian delegation negotiating the ICC, points out: A traditional proposition since Hobbes has been that fear o f punishment and the existence o f an effective penal machinery serve as man's security to o n e another. Establishing such a machmery for the most serious crimes o f concern t o the international community as a whole is therefore a major contribution t o the strengthening o f the international legal order."

More to the point, much of the negotiations on the ICC on penalties focused on the idea of deterrence. Thus, some delegations argued that the possibdity of fines as punishment would amount to an added element of deterrence, and for some delegations, forfeiture of the proceeds of criminal activities could help to 'remove an incentive' to engage in human rights violations.10 Yet another participant sums up the general mood in no uncertain terms: 'Every day, the Conference everyday [sic] stands f d y by the principle that the more gas we give to the punishing machine, the less crirninality we wdl end up with'." The same deterrence argument provided part of legal justification for the establishment of the Yugoslavia-tribunal, as the Tribunal's Appeal Chamber underlined in its judgment in the Tadc case: after all, the Security Council's creation was justified because of its potential contribution to the maintenance of international peace and security.12 The academic literature too makes much of the deterrence argument. Cherif Bassiouni, the spiritual father of much of today's international criminal law, puts it succinctly:

with the collective experiences that are so typical of war and gross human rights violations. See Chrisje Brants, 'Dealing with the holocaust and collaboration: the Dutch experience of criminal justice and accountability after World War 11', 34 Crime, hLmv Jocia/Change (2000) 21 1-236. Qolf Einar Fife, 'Penalties' in Roy S. Lee (ed.), The International Criminal Court: the making oftbe Rome Statute (Kluwer Law Intemational: The Hague 1999) 319-343, at 319. Incidentally, in the discussions concerning international criminal law, the distinction between general and specific deterrence does not play an important role. '0 Ibid., at 328, also at 333. Irnmi Tallgren, W e did it? The vertigo of law and everyday life at the diplomatic conference on the establishment of an International Criminal Court', 12 &den Journal of International Lm/ (1999) 683-707, at 686. '2 See The Prosecutor v. Dusko Tadic a / k / a ‘Dub', case no. IT-94-1-AR72, decision of the Appeals Chamber of the Intemational Criminal Tribunal for the Former Yugoslavia, 2 October 1995, reproduced in 35 InternnttionalhgalMaten'ah (1996) 32.

Finnish Yearbook oflntemationallaw (Vol. XII, 2001)

The relevance of prosecution and other accountability measures to the pursuit of peace is that through their effective application they serve as deterrence, and thus prevent further victimization.13

Indeed, for Bassiouni, deterrence is the cork that keeps the entire enterprise afloat: other arguments are judged on their potential to contribute to deterrence.14 Others too place much faith in deterrence. For McGoldrick, the ICC may come to 'play an important role in deterrence7.15Antonio Cassese quotes with great gusto the words of his compatriot Cesare Beccaria, who stated in 1764 that 'the conviction of fmding nowhere a span of earth where real crimes are pardoned might be the most efficacious way of preventing their occurrence7.~6And for Payam Akhavan, perhaps the most tireless advocate of international criminal law among a new generation of lawyers and scholars, deterrence is the be all and end all of international criminal law: accountabhty, in his view, contributes to the 'transformation of a culture of impunity7;17 indeed, 'individual accountabhty for massive crimes is an essential part of a preventive strategyY.l8 The deterrence argument owes much of its attraction to being aligned with the dominant methodology of the social sciences: that of individuals operating as rational actors, making balanced cost-benefit analyses before making their rational choices. Akhavan neatly sums up the position: The prosecution or related political demise of [political] leaders sends a message that the cost of ethnic hatred and violence as an instrument of power increasingly outweighs its benefits.lg

Even those who are more or less skeptical20 about the real-life effects of deterrence are none the less somehow captured by its promise.21 Thus, David Wippmann 13

See M. Cherif Bassiouni, 'Searching for peace and achieving justice: the need for accountability', 59

LW e9 Contemporav Pmblem (1996) 9-28, at 18. Ibid., esp. at 25. McGoldrick, 'End to the culture', sttpra note 1, at 655. 16 Antonio Cassese, 'On the current trends towards criminal prosecution and punishment of breaches of international humanitarian law', 9 EzlropeanJozlmalofInternationallam, (1998) 2-17, at 17. 17 Payam Akhavan, 'Beyond impunity: can international criminal justice prevent future atrocities?', 95 AmericanJozlrnal of 1ntemationalL-m (2001) 7-31, at 8. 18 Ibid., at 10. 19 Ibid., at 7-8. And elsewhere, focusing on political leadership: Where leaders engage in some form of rational cost-benefit calculation, the threat of punishment can increase the costs of a policy that is criminal under international law' (at 12). 20 Some simply hope for, or seem to expect, a deterrent effect without addressing the argument specifically. So, e.g., Steven R. Ratner & Jason S. Abrams, Accomtabik~for bzlman rights atron'tiets in international law: byond the Nzlremberg legay (Oxford University Press, 1997) at 184; Madeline H. Morris, l4

l5

Jztst Revenge? The Deterrence Al;gzment in International Criminal Law

253

argues that while deterrence is a 'largely untested assumption', it may stdl be plausible.22 And to the extent that deterrence will not work, this is caused not by its being mistaken in principle, but by the practical consideration that in times of confict, people simply may be guded by other motivations (from hatred to superior orders) which render deterrence highly unlikely.23 While I largely share Wippmann's concerns, what I wish to explore is something else. The question for me is this: assuming that deterrence works in domestic contexts where criminal law has to deal with common criminals (itself an assumption of doubtful validity perhaps),24 does deterrence also work in cases of human rights violations? In slightly different terms: how useful is it to think of human rights violators as common criminals?25 Is it sdl important to make a distinction between persons who commit assault and battery on the one hand, and torturers and war criminals on the other, or are we loolung merely at different manifestations of the same type of e ~ i l ? ~ 6 What I will argue boils down to this: to my mind, international criminal law and international criminal tribunals will not play a sigmficant role when it comes to such things as deterrence, simply because the human rights violator is not to be deterred. And the human nghts violator is not to be deterred because he or she is not usually inspired by evil motives. Instead, the human rights violator will act mainly for political reasons, hoping, nay expecting, that history will prove him or her right. The cost-benefit analysis underlying the deterrence argument cannot simply be applied in such a case; indeed, one may even wonder whether the traditional staples of criminal law discourse, with their focus on mens rea, can be meaningfully applied when it concerns human rights violations. 'International guidelines against impunity: facilitating accountability', 59 Law e9 Contemporay Problem (1996) 29-39, at 29. 21 Jonathan Glover puts forward the thesis that deterrence might be to little avail, as under extreme circumstances people's 'moral resources' will often be diminished. See Jonathan Glover, Humanio: a moral bistoty oftbe twentieth centuty (Pimlico: London 2001). 22 See David Wippmann, 'Atrocities, deterrence, and the limits of international justice', 23 Fordbam Internationalb Joz~rnal(1999) 473-488, at 474. 23 Ibid., at 479. 24 See, e.g., H.L.A. Hart, Trolegomenon to the principles of punishment', reproduced in his Punishment and responsibiidy: essgs in tbepbil'osopby ofkaw (Oxford University Press, 1968) 1-27. At any rate, deterrence is difficult to prove or to disprove; as Fletcher observes, 'evidence of effective deterrence is hard to come by'. See George P. Fletcher, Basic conctrpts ofcrimnalkaw (Oxford University Press, 1998) at 31. 25 For a different dichotornization (focusing more on a distinction between state crimes and ethnic crimes), see JosC A. Alvarez, 'Crimes of states/crimes of hate: lessons from Rwanda', 24 Yale Journal of International Lazv (1999) 365-483. 26 Fletcher seems to have some doubts about prosecuting war criminals simply on the basis of homicide statutes; between the lines, he seems to accept that there might be a difference 'between killing someone in a 1943 Berlin robbery or killing someone in a 1943 Auschwitz gas chamber'. Fletcher, Basic concps, sqra note 24, at 11.

254

Finnish Yearbook of InternationalLdzv (Vol.XII, 200 1)

That is not to say that there is no point to intemational criminal law and international criminal tribunals; but what I am suggesting is that if deterrence is the main justification, then we are bound to end up greatly disappointed. In the end, we may have to accept the uncomfortable proposition that punishment is meted out only for the sake of punishment itself.

A fictional example Perhaps it is best to begm exploring the question of the ideas we have about human rights violators with the help of a fictional character: the main vdain in the latest novel of Harvard law professor Alan Dershowitz, Just revenge.27 Alan M. Dershowitz is no ordinary law professor. Apart from occupymg the prestigious F e h Frankfurter chair at Harvard Law School, he is also a renowned commentator of legal events on television, and manages to somehow find the time to also write crime novels. As a novelist, Mr Dershowitz is not particularly good. That said, he is not particularly bad either; he is a notch or two above Grisham,2* but in a different league from the likes of Turow or (beyond the narrow confines of courtroom novels) Burke or Lehane or Mosley, whose moral universes allow for far more shades of grey than does Mr Dershowitz's. Having read one of Mr Dershowitz's earlier novels, I would probably not have bothered to buy his novel Just revenge if it had not been for the blurb on the backcover. There, Elie Wiesel is quoted as saymg: Brilliantly written . . . Alan Dershowitz deals with a theme that is but rarely touched upon in the Holocaust-inspired literature: can there be vengeance now when there was none then?'

And indeed, the theme of Just revenge is highly i n t r i p g . The story goes, in a nutshell, as follows. In 1942, in V h a , the passover of the Jewish Menuchem family is rudely interrupted by Lithuanian police forces. The entire farmly is dragged to the woods, and shot. Due to a quirk of good fortune, 18-year old Max manages to escape, having lost his wife and infant boy. Max turns into a world-famous biblical scholar with a chair at Harvard, and for well over fifty years is haunted by what happened to his family. Then he finds out that the man who was the police commander in Vilna during the war, a certain Marcelus Prandus, is s d l ahve and actually living close by in --

Alan M. Dershowitz, Jmt revenge (Warner Books: New York, 1999). The one thing interesting about Grisham is not so much his individual works, but his being overtly communitarian. 27

28

Jtlst Reveqge? The Detewence Atg~mentin International Criminal LW

Massachusetts, in perfect happiness surrounded by a loving family. As Prandus is d p g from cancer, any official proceedings agamst him for his part in the Holocaust will remain ineffective: he will die before proceedings can even seriously commence, and hence, he d die a happy man. This, now, is so unfair that Max decides to look for revenge on his own. Aided by h s most b f i a n t student, Danielle, he looks for just revenge, and Danielle comes up with a brilliant scheme, inspired by the teachings of Mairnonides: she can fabricate video footagezhf Prandus's family members being lulled (without actually killing anyone), which can serve to confront Prandus with his evil deeds. He should feel so gwlt-stricken that he commits suicide, for Max and Danielle want to make it clear that Prandus's family members are being killed in retribution for what Prandus did during the war. The scheme works wonderfully well: upon watching the fabricated footage, Prandus realizes that his family members have (seemingly) suffered for his past behaviour, and commits suicide, an utterly unhappy man. Enter the lawyer, a successful Harvard graduate30 and long-time friend of Max. He decides to argue the case on the basis of the just revenge theme, leaving it to the jury to balance legality (thou shalt not inspire people to commit suicide) with morahty (how fair is the world if those who commit genocide can live on as if n o h g ever happened, while the victims continue to suffer). Predictably, the jury cannot make up its collective mind, resulting in a hung jury. Jtl.ri revenge is not really a good novel. While fast-paced, the plotting is not terribly spectacular (it has to be rescued by the detls ex muchina of the surprise witness: always a bad sign), and the characters bear an uncanny resemblance to cardboard.31 Moreover, the dialogues are far from lively, with characters invoking Shakespeare's or Dostoyevski's thoughts too often to be credlble (even for Harvard Yet there is one fascinating element about the story, and that is the portrayal of Marcelus Prandus, the villain of the piece. Prandus is first introduced when he interrupts the passover festivities. As Max remembers: T h e man at the d o o r politely introduced himself as Captain Marcelus Prandus o f the Lithuanian Auxiliary Militia. I will never forget h o w h e looked. Captain Prandus was a strikrngly handsome man, tall, with neatly trimmed blond hair and deep blue eyes.32

29 It SO happens that apart from a hlghly talented biblical scholar, Danielle is also a highly talented video artist. 30 One of Prandus's sons is also a lawyer, with a degree from Boston College. Curiously, this little bit of information is enough to immediately portray him as a small-time lawyer. 3' Some never even come into thek own. Thus, Prandus is reported to have two sons with his late wife; only one of them plays any role in the book though. 32 Dershowitz, Just Revenge, sqbra note 27, at 39.

Finnish Yearbook oflntemational Law @I.

256

XII; 2001)

The first impression then of captain Prandus is that of a serious official, polite, wellbred enough to introduce hunself, and good-looking, something which usually, in the conventions of the crime novel, is to be taken as being good-hearted as well or, at least, is usually juxtaposed with evil. This impression is maintained over the next few critical pages, the pages where Prandus presides over the murder of a number of families, i n c l u h g Max's f d y . Trandus was so polite, so matter-of-fact7." And fmally, when the lulling was imminent, Prandus read out a statement explaining the rationale: What we are about to do is for the good of all humankind. You are about to fulfil the destiny assigned to you by the Thtrd Reich. You may regard yourself as soldiers dying on behalf of the Fatherla11d.3~

Indeed, Prandus treats the entire sordid affair rather business-like, urgmg his victims not to make it 'more difficult or painM than it has to be735and insisting on carrying out his orders properly, but without any apparent enthusiasm. Thus, the first introduction of Prandus suggests an effective official, overzealous perhaps, and perhaps inspired by the thought that history would vindicate whatever his contemporaries might resent, but emphatically not criminal, not monstrous. This impression will rapidly change though. As soon as Max has told his story to h s friend Abe and Abe's family (Abe is the lawyer who will defend Max), Abe's daughter Emma sets a new tone, speaking of Prandus as a 'bastard' and a 'monster' for whom lulltng people was not hard,36 and it is this new version of Prandus that dominates the remainder of the book. The interesting thing then about Jurt revenge is the shift in the portrayal of the villain: the effective official who killed for the Fatherland all of a sudden becomes a monster. And that is curious: why does Dershowitz need to make 151s sudden shift? On the one hand, Dershowitz must have realrzed that to portray Nazis simply as monstrous killers who do what they do out or sheer bloodlust and sadlsm would, in all likelihood, represent a caricature, one that is not terribly convincing. On the other hand, if Prandus was merely being effective at his job, and was inspired by lofty motives (however perverse those motives are themselves, or however perverse their effects upon implementation), then how can we ever justify punishment half a century later? Hence, it is far easier to brand Prandus as a monster after all, for monsters, we can all agree, need to be taken off the streets.

Ibid., at 45. Ibid., at 46. 35 Ibid., at 47. 36 Ibid., at 51.

33

34

J ~ s Revenge? t The Detemence A p t m e n t in International C ~ m i n aLaw l

257

Thus, Dershowitz feels compelled to caricaturize his own fictional creation: the zealous servant Prandus becomes a bloodhsty monster, because any attempt to criminhe his behaviour would be unconvincing if he merely was a zealous servant, acting out of a mixture of loyalty to his superiors and a sense of being part of an unique historical process. In order to get criminal law (or even moral responsibility) to apply to Prandus, he must be seen as a monster. It is here that Dershowitz the novelist makes way for Dershowitz the criminal lawyer: the criminal lawyer realizes that unless he can make his character act with some criminal intent, the audlence might lose interest or perhaps even take sides with Prandus. Now what does tlus fictional account illustrate? It dlustrates, or so it seems, that we are fundamentally in two minds about those who commit war crimes or human rights violations. Our most primitive sentiment, personified in the novel in the daughter's comments, is to simply regard them as monsters, as bastards. We should lock them up and throw away the key or, even more drastic, simply execute them. But it is, in the end, not terribly productive to regard them as monsters, if only because it is clear that they do not lull, maim, rape or torture for pleasure, or at least not solely for pleasure. It is this factor which distinguishes the human rights violator from the hkes of Ted Bundy or Jeffrey Dahrner or, to once more resort to fiction, characters such as Hannibal Lecter. And intuitively we realize as much, even if we have difficulties putting it in words: there is a qualitative difference between the ordinary criminal and the human rights violator. Indeed, it is this qualitative difference that Dershowitz taps into when first introducing Marcelus Prandus: our first impression was not that of a monster, but rather that of a loyal civil servant, overzealous perhaps but most certainly not monstrous in the accepted sense of that word: Prandus's behaviour, we are initially led to believe, had nothing to do with sadism or cruelty for the sake of cruelty.

From fiction to non-fiction Dershowitz's initial characterization of Prandus owes much to the powerful image of Adolf Eichrnann, as seen through the eyes of Hannah Arendt. It has become commonplace, since Hannah Arendt's study of the Eichmann trial, to speak of the banahty of evil:37 Mr Evil goes to the office in the morning, does his work, causes 37 See Hannah Arendt, Eicbmann in Jemsah: a rqort on the banakp of evil (rev. ed., Viking Press: New York, 1965). A similar enterprise in Dutch, written around the same time, produces a similar portrait of Eichmann not as a monster, but rather as a single-minded official. See Harry Mulisch, De xaak 40/61: een rtportage ( f ~ spublished t 1962) (De Bezige Bij: Amsterdam 1999). Interestingly, Mulisch suggests in a theological vein that the vision of Eichmann as a monster may well have been inspired by his invisibility, first as a cog in the machine, later as a fugitive from justice, in much the same way as satan is said to thrive on invisibility (at 48-49).

258

Finnish Yearbook OfIntemationalLdw (Vol. XII, 2001)

serious suffering, and goes back home in h e for dmner. And after b n e r he might retire to his study or bedroom for a bit of Beethoven and Goethe for, as George Steiner famously observed, it may not necessarily be the case that the humanities humanize: 'Knowledge of Goethe, a delight in the poetry of Rilke, seem[s] no bar to personal and institutionalized sadsm7.3*When we think in terms of the banality of evil, often the upshot of the argument is that human rights violators are not so much immoral as they are a-moral: they do not have the capacity to dstinguish between right and wrong. As Arendt characterizes Adolf Eichmann: The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifymgly normal . . . [rZlhs new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong.39

Arendt, in her attempt to understand what happened, points to a circumstance which may have a bearing on the absence of moral judgment: in a totalitarian state, people lose the quality to recogtllze evil, i.e. the quality of temptation. Many people, so she writes, must have been tempted not to murder and not to rob, but they had learned how to resist such temptation. They no longer could recogtllze evil, s o m e t h g which, in turn, might help explain the banality of evil.40 Yet, Arendt herself had not always thought in terms of the banality of evil. Whde t h i n h g of evil in terms of banality predates the Eichmann trial (Arendt and Karl Jaspers were dscussing Nazi-Germany in those terms already in 1946),4l her earlier work still seemed focussed on evil being somethmg radical rather than banal. In her The omgins oftotalitaridnism, written somewhat more than a decade before the Eichmann study, Arendt spoke of the concentration camps not so much as being the result of overzealous admimstrators, but as the result of 'some radical evilY.42Life in the camps, as she put it, was 'thoroughly and systematically organized with a view See George Steiner, 'To civilize our gentlemen', reproduced in his Lunggage and dence: essgs 19581966 (Faber & Faber: London 1985) 75-88, at 81. 39 Arendt, Eicbmann, mpra note 37, at 276 (emphasis in original). As early as 1949, Arendt came to a similar characterization of her former mentor Martin Heidegger in a letter to Karl Jaspers. Heidegger, so she wrote, suffered from lack of character - but in the sense that he literally has none and certainly not a particularly bad one'. See Lotte Kohler & Hans Saner (eds.), Hannah Arendt - Karl Jaspers corre.pondence 1926-1969 (Robert & Rita Kimbel trans., Harcoua Brace & Co.: San Diego, 1992) at 142. 40 Arendt, Eicbmann, sqbra note 37, at 150. 41 See Kohler & Saner, Arendt-Jaspers, sqbra note 39, at 62 (letter from Jaspers dated October 19, 1946, actually using the term 'total banality'), and at 69 (Arendt agreeing with Jaspers that it would be irnproductive to think in terms of 'satanic greatness'; letter from Arendt dated 17 December 1946). 42 Hannah Arendt, Tbe ongins oftotalitarianism ((firstpublished 1951) (Harcourt Brace & Co.: San Diego, 1979), at 443. 38

Jtcst Revenge? The Detewence Atg~rnentin International Cr%zinalLaw

to the greatest possible torment7.43This suggests nothing banal; instead, it suggests a criminal intent of the highest order. Whether Arendt's earlier conception of radical em1 and her later one of the banality of evil are essentially the same is a question that need not detain us here.44 What matters, is that both conceptions have an important element in common: Arendt's radical evil and her banal evil are both characterized by a singular lack of criminal intent; they are both characterized by the circumstance that thls evil has nothing to do with what we usually regard as evil motives. Eichmann's evil was not the result of evil motives, and by the same token, the evil of totalitarianism, in Arendt's view, is not the evil of monsters and demons; it 'cannot be accounted for by evil motives', as Richard Bernstein has put it.45 Hence, the doing of evil comes to be dworced from evil motives: evil, be it radical or banal, can also be the result of less than evil motives, perhaps even, if we extrapolate, be the result of noble motives. As Arendt put it in 1951, writing to KarlJaspers: [ . . . ] m o d e m crimes are n o t provided for in the T e n Commandments. Or: the Western tradition is suffering from the preconception that the most evil things human beings can d o arise from the vice of selfishness. Yet we know that the greatest evils o r radical evil has n o k g t o d o anymore with such humanly understandable, sinful motives.46

This, surely, is the crux of the matter: evil has little to do with humanly understandable motives. But divorced of such motives, it becomes awkward, not to say impossible, to do something with the help of criminal law.47 Indeed, the conception of evil as something inspired by evil motives is never far from our minds when we dunk about war criminals or gross human rights violators.48 It inspired, amongst other dun@, the creation of the Nuremberg Tribunal. Robert Jackson, the lead US prosecutor, formulated it as follows in his opening address: Ibid., at 445. See, e.g., Richard J. Bernstein, 'Did Hannah Arendt change her mind? From radical evil to the banality of evil' in Larry May & Jerome Kohn (eds.), Hannah Arendt Weno years hter (MIT Press: Cambridge, MA, 1996) 127-146; see also Seyla Benhabib, 'Arendt's Eichmann in Jerusalem' in Dana Villa (ed.), The Cambn'dge companion to Hannah Arendt (Cambridge University Press, 2000), 65-85. 45 Bernstein, D i d Hannah?', strpta note 44, at 133. 46 Letter of 4 March 1951, in Kohler & Saner, Artndtja.pers, strpra note 39, at 166. 47 This is surely no coincidence, as 'this form of evil has never been conceptualized, neither in the Christian tradition, nor even by Kant'. See Thomas Mertens, 'Arendt's judgement and Eichmann's evil', 2 Finnish Yearbook ofPokticalThought (1998) 58-89, at 70. 48 Compare only the brief piece by Roger S. Clark & Madeleine Sann, 'Coping with ultimate evil through the criminal law', 7 Ctzminal Law Forum (1996) 1-13, asking such 'basic questions' as 'can the law cope with supreme evil?' (at 3). Quite indicative is also a title such as 'restraining the barbarians'; see Farer, 'Restraining', strpra note 7.

43 44

260

Finn3 Yearbook ofInternational l a w (Vol. XII, 200 1)

The common sense of m a b d demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion e d s which leave no home in the world untouched.49 As Dana Villa sums it up: the way we normally conceive of the evil of totalitarianism is by means of personahzing the evd of the regune as s o m e h g emanating from demonic genius; totalitarian evil is 'causally reduced to the rejection of traditional moral limits and personal pathology'.50

Beyond totalitarianism Arendt's main focus was the evil of totalitarianism, something which, as she often underlined, was distinct from other evil. After all, throughout history there had been organized mass murders, genocides, and gross human rights violations; even concentration camps, illustrating the heart of totalitarianism by their capacity to render human beings superfluous, had already been in use before totalitarianism.51 Arendt's thoughts, as I mentioned before, have become commonplace: as Alan Dershowitz's crime novel suggests, part of our thinking accepts a version of evil as s o m e h g which is the result of efficiency and zealousness, the banality of people just doing their jobs without thinking much about it. Yet, at least in lawyerly circles, this conception is often held to be insufficient, for the obvious reason that people who are just doing their jobs can hardly be accused of acting with criminal intent: if we are serious about suggesting that criminal behaviour is somehow the product of intentional human behaviour,52 then we have a hard time coming to terms with people who are just doing their jobs. At best, we can hold them @ty of thoughtlessness (as Arendt famously observed with respect to Eichmann), but surely, there is n o h g criminal about thoughtlessness per se.53 As reproduced in Marrus, The Nunmbeq, strpra note 5, at 80. Dana R. Villa, 'Terror and radical evil', in his Poktics, pphosopby, terror essgs on the thought of Hannah Arendt (Princeton University Press, 1999) 11-38, at 14. 5' For an analysis of how totalitarianism and liberalism are uncomfortably related, see Michael Halberstam, Totalitarianism & the kberal conception ofpoktics (Yale University Press: New Haven, 1999):in his view, totalitarianism promises to fill the void at the heart of liberalism with meaning. 52 SO, e.g., Duff, in very succinct terms: 'A defendant is g d t y of a criminal offence only if he committed its actus rem with the appropriate mens red. See R.A. Duff, Intention, ageny e9 mmminalliability: pMosopby ofaction and the mmmina//aw(Basil Blackwell: London, 1990) at 8. 53 And accepted criminal law categories as negligence or recklessness seem hopelessly inadequate to deal with human rights violations. 49

50

lust Revenge? The Deterrence Argument in I n t e d o n a l Ct7iminalLaw

261

It is for that reason that we almost inevitably slip back into the picture of the war criminal as a monster, a demon, acting out of greed, covetousness, or simply acting out his or her sadistic soul. Whether we th.tnk of the Eichmanns of this world, the characterless bureaucrats who do their jobs with enthusiasm, or whether we dunk of the evil of totalitarianism, we always seem to slip into h h g in terms of monsters and 'satanic greatness'. Moreover, whenever the amount of evil persons would become intolerably l q h , we start to speak of conspiracies.54 Thus, our standard portrait of what happened in Rwanda or Yugoslavia is not that there just happened to be many evil persons (so much so as to lose all faith in humanity), but rather that 'thousands of citizens became unwitting instruments for unscrupulous political 61ites7,as Akhavan put it.55 Those innocent citizens became the victims of 'ruthless demagogues and warlords7,56who themselves were engaged in an elaborate conspiracy, a 'carefully orchestrated common design7.57Our attempts to come to terms with the Holocaust has sometimes taken on similar characteristics: the prosecutors at Nuremberg did their best, with mixed success, to provide the outline of various groups engaged in a conspiracy.58 In short, when the evil becomes too gross to comprehend, we reformulate it, in much the same way as Alan Dershowitz turns his zealous servant into a bloodthirsty monster. Too much indmidual evil becomes evil as a result of a conspiracy,i9 masterminded by people who themselves are the devil personified. This has the great benefit that we can somehow get a handle on things: if all evil results, eventually, from a few monsters loaded with criminal intent, then we can simply apply the time-honoured notions of criminal law. The drawback, however, is that our picture might not be a terribly realistic one. As Shklar puts it with great clarity: 'A criminal trial demands a mem rea, and there is often no mens rea to be found in the development of socially complex events such as wd.60 Whde there is

54 See in a similar vein Judith Shklar, observing (as I read her) that the format of a criminal trial inevitably reduces complex events in which thousands participated to something more simple, pointing to specific persons making specific decisions. Shklar, Legalism, supra note 8, at 172. Some pages later (at 188) she clarifies that a trial for the crime of waging aggressive war must presuppose a conspiracy, for 'else there is no mens red. 55 Akhavan, 'Beyond impunity', supra note 17, at 7.

" Ibid.

Ibid., at 11. See generally Telford Taylor, The anatonly ofthe Nutembe3 triah (Bloomsbury: London 1993). 59 In a similar vein, Teitel has noted that the emphasis placed by the Yugoslavia Tribunal on genocide and crimes against humanity connects individuals and collectivities. While her focus is on the crime itself rather than on the suspects, it nonetheless illustrates 'that the project of ascribing individual responsibility must somehow be reconciled with . . . contemporary constructions of ethnic identity'. See Ruti Teitel, 'Bringing the messiah through the law' in Carla Hesse & Robert Post (eds.), Human nghts inpoliticaltransitiom: Gettysbzq to Bosnia (Zone Books: New York, 1999) 177-193, at 186-187. 60 Shklar, Legalism, supra note 8, at 172. 57 58

262

Finnish Yearbook ofIntemationalLaw (Vol. XII, 2001)

no doubt that some nasty activities are committed for nasty reasons, nastiness may not underlie everything being done.61 It has been pointed out that what makes totalitarianism so unique is its moral corruption: those within the system no longer can tell rlght from wrong, since the entire system puts a premium on changing the nature of that very difference.62 As a result (at least in part) criminal activities are 'irreducible to any set of recogmzably human motivations7.63 Instead, bddtng on the conspiracy argument, Villa points out while preserving the uniqueness of the Holocaust: 'if recent events in Bosnia, Rwanda and the Congo prove anythmg, it is the ease with which governments can manipulate the language of ethnic and cultural survival to the point where genocide is perceived by the perpetrators as a necessary act of self-defence7.64Yet, if this is true, so Villa takes the conspiracy argument one step further, then this seems 'to threaten the very idea of moral responsibility for political evi1'.65 I thmk Vda, following in Arendt's footsteps, has a point here, but that is not perhaps the most significant observation to make. What I am afraid of (quite literally so) is that the point can be extended to cover not just the grossest abuses of human rights (to once again resort to this term as a convenient if inaccurate shorthand), but most politically inspired human rights violations.66 We have a hard time dealing with politically inspired behaviour precisely because intuitively we recogmze that it is not usually the result of evil intentions, and equally intuitively, we seem to cherish the idea of politics as an activity of intrinsic worth: the good citizen is one who engages in politics, at least to the extent that he or she goes to the polls every four years and takes some part in public debate.67 See also Herbert C. Kelrnan & V. Lee Hamilton, Ctiins af obedience (Yale University Press: New Haven, 1989) at 14. Looking to explain mass violence, they observe, 'any explanation involving the attackers' strong sadistic impulses is inadequate. There is no evidence that the majority of those who participate in such killings are sadistically inclined'. 62 Similarly W. Michael Reisman, 'Legal responses to genocide and other massive violations of human rights', 59 Lau/ e9 ContetrgoraryPmblems (1996) 75-80, at 77. 63 Villa, 'Terror', sqra note 50, at 32. 64 See Dana R. Villa, 'Conscience, the banality of evil, and the idea of a representative perpetrator', in Villa, Pohtics, supra note 50, 39-60, at 54. 65 Ibid. 66 I broach this topic in two other papers. See my T h e general, the lords, and the possible end of state immunity', 68 Nordic Journal ofIntemationalLaw (1999) 85-95, and 'Doing the right thing? Foreign tort law and human rights' in Craig Scott (ed.), Torture m tort: Cotrgarative Perspectives on the Devehpment of TransnationalHuman Rzghts Lit&ation (Hart Publishing: Oxford, 200 1) 553-566. 67 Compare Lipset: 'a society in which a large proportion of the population is outside the political arena is potentially more explosive than one in which most citizens are regularly involved in activities which give them some sense of participation in decisions which affect their lives'. See Seymour Martin Lipset, Pokticalman: the social bases ofpolitics (2nd ed., Johns Hopkins University Press: Baltimore, 1981) at 184. 61

Jzit

Revenge? The Deterrence Argument in International Cm'minalLaw

263

It is a matter of record that extreme political behaviour is nonetheless, its extremity notwithstanding, ultimately political behaviour, where political considerations may override more mundane incentives. The most clearcut examples perhaps are suicide bombers: those who give their lives in the process of kdlmg others. They do not act out of sadism or cruelty, I would imagine (not solely, at any rate); nor do they act for personal gain, except perhaps in the intangible sense that they hope to become martyrs for the good cause. But this is precisely the defrnrng characteristic: the action is inspired by what they hold to be a good cause. Perhaps another example relates to Anton Mussert, the leader of the Dutch national-socialist movement during much of the 1930s and 1940s. Mr Mussert did not commit any war crimes or suchlike activities that I am aware of. Stdl, Mussert had great sympathy for Hitler, and warmly welcomed the German occupation of the Netherlands, fond as he was of the thought of Holland and Germany united in a Greater Germany. Indeed, for Mussert, Hitler was a prophet, a demi-God. In a speech to mark Hitler's birthday in 1943, Mussert spoke of the personal sacrifices Hitler made, of his greatness, his wisdom and justness. As Mussert's biographer concludes: those were the words of an exalted believer.68 Indeed, more generally, Mussert thought of himself as spearheading a historical process: leadmg the Dutch nazi movement was a duty, and despite obstacles which may enter the movement's path, Mussert was sure that 'history would do them jus tice7.69 Whatever one may think of Mussert's actions, one thing seems clear: h s actions were not the result of evil motives, but were politically inspired. While probably much attracted to power and its paraphernalia, his main guiding principle was that history would see hright. He was working not for the here and now, but for the future, for what he believed in. His beliefs may have been naive; they may have been terribly misgmded; they may have been perverse and obscene; but they were nonetheless his beliefs. And Mussert is, of course, far from alone in this: even someone like Joseph Goebbels is reported to have written in his diary (and thus, one may presume, not directly playing for an audience) that his actions were inspired by the necessity to

Putnarn theorizes that civic activities (incluclmg political participation) contribute to a community's social capital which, in turn, contributes to the community's general well-being. See, e.g., Robert D. Putnam, 'Civic disengagement in contemporary America', 36 Government e9 Opposition (2001) 135-156. 68 See Jan Meyers, Mmert: eenpolitiek leven (De Arbeiderspers: Amsterdam 1984) at 235. Similar sounds were uttered, in Nuremberg, by Rudolf Hess (who, admittedly, was considered by many as somewhat batty): 'I was permitted to work for many years of my life under the greatest son whom my people has brought forth in its thousand-year history. . . . No matter what human beings may do, I shall someday stand before the judgment seat of the Eternal. I shall answer to Him, and I know He will judge me innocent'. As reproduced in Marms, The Nurembmg, stlpra note 5, at 223. b9 Meyers, Mussert, qbra note 68, at 92.

Finnish Yearbook of Intematiional Law (Vol. X I , 2007)

264

counter Jewish plans to destroy Germany.70 Again, the idea was hopelessly misguided, but for all that not less real: it points to a picture of even the grossest form of genocide as an act of self-defence in the mind of the perpetrator. Indeed, it has often been remarked, with some surprise, that many human rights violators show no remorse, show no sense of gdt.71 Thus, someone close to Albert Speer is quoted about saying about the Nuremberg accused that apart from Speer, 'all of the others basically felt it was unjust for them to be there; none of them -please believe me- none of them felt they had done anythmg wrong, or even that they had been involved in anythmg wrong. And thus . . . none of them felt any responsibility or gLlllt7.72 And where they do confess to feehgs of &t or remorse and publicly accepted the justness of punishment,73 we get terribly uncomfortable: witness the reactions to Speer.74 But absence of remorse would seem perfectly logcal upon acceptance of the thesis that people act for higher motives: surely, one should not feel @ty for doing one's best to achieve an ideal? Surely, one should not feel remorse over trying to make the world a better place?75 Perhaps the most bizarre, and therefore the most evocative example of how difficult it is to capture human rights violations in simple terms of evil motives, took place in the aftermath of the My Lai massacre, in Vietnam in 1968. After a morning of shooting and killing, at 11:OO in the morning the US troops involved ('Charlie company') went on their lunch break. Two young Vietnamese girls, who had just escaped the massacre, wandered back into the village from their hiding place, and were invited to share lunch with 'Charlie company'. Surely, as psychologsts have observed, h s 'surrealist touch dustrates the extent to whlch the soldiers' action had --

AS quoted in Gitta Sereny, Albert Speer: his batth with tmth (Random House: London, 1995) at 350. 71 See, e.g., Mark J. Osiel, 'Why prosecute? Critics of punishment for mass atrocity', 22 Human Rights Quarter- (2000) 118-147, at 136. 72 The speaker was Speer's long-time secretary, as quoted in Sereny, Albert Speer, strpm note 70, at 560 (emphasis in original). 73 Some of the nazi's on trial at Nuremberg confessed to feeling gudty but denied that they ought to be punished for, as one of them put it, 'I placed the will of the State before my conscience and my inner sense of duty because, after all, I was the servant of the State. I also considered myself oblrged to act according to the will of the Fiihrer'. So, e.g., Walther Funk, as reproduced in Marrus, The Nuretllbea supra note 5, at 21 5-216. 74 Speer, after confessing to a sense of responsibility, was met by either disbelief (on the part of the Allies) or accusations of betrayal (on the part of his fellow accused at Nuremberg). See generally Sereny, Albert Speer, supm note 70. 75 Quite the opposite, according to some. Thus, for Badiou, it is precisely the faculty to be able (and allowed) to imagine the good which defines humanity. To prohibit political ideals is to prohibit humanity itself. See Alain Badiou, Ethics: an essg on the understandng ofevil (translated and introduced by Peter Hallward, Verso: London, 2001) at 14. 70

Just Revenge? The Detemence Apunent in International Criminal Law

become dissociated from its meaning7.76And surely, one might add, it illustrates that we cannot simply regard human rights violators as common criminals. Yet, that seems to be the very premise underlying the creation of international criminal tribunals and the popularization of international criminal law: by locking up the culprits, we aim to deter both them and others from engagmg in criminal behaviour.

Crime and punishment Now if what I have said earlier about human rights violators acting out of a sense of political idealism, however perverted, is plausible, then it follows that we may wonder whether there really is any point in putting d our eggs in the basket of deterrence. It may be the case that potential common criminals can be deterred into lawful behaviour; but does it also work where behaviour is not inspired by base motives but rather by a sense of 'doing the right thing7?At the very least, if we insist in thinking in terms of rational actors making choices on the basis of an analysis of the costs and the anticipated benefits of their prospective actions, then we have to adapt the terms of the equation: under the heading of 'benefits' we should include such things as the promise of paradse; it is doubtful, then, whether any costs will be high enough to offset the benefit of possibly reaching the promised land. If deterrence is the main justification for international criminal law, but is not to be expected to work in any serious way, then what's the point of having an International ~ d m i n aCourt, l and international criminal law, at all? Perhaps the only justification left is simply that of punishment: people who do nasty things should be put away, as simple as that. Motives, on tlus score, don't really matter anymore, nor does criminal intent or the absence thereof; indeed, it may well turn out to be the case that as soon as we separate evil acts fiom evil motives, there is nothing left but to punish for the sake of punishment.77 The one problem with h s is that punishment for the sake of punishment rests uncomfortably with our liberal sentiments: we tend to think that punishment must serve a goal higher than punishment itself, and the fact that we have ruled out the possibility of the ultimate form of punishment (i.e. capital punishment) is perhaps an indication that we need to think of something to help us justify p u n i ~ h m e n t . ~ ~

Kelman & Hamilton, Cn'mes, s q r a note 61, at 9. Morawetz has observed that theorists of criminal law are not terribly assured as to whether criminal law can reach its goals and aspirations: 'From questioning whether all of the goals can be achieved simultaneously, they have gravitated to questioning whether any of them can be achieved at all'. See Thomas Morawetz, 'Introduction' in Thomas Morawetz (ed.), Criminalh (the International Library of Essays in Law and Legal Theory, Dartmouth: Aldershot, 1991) xi-xv, at xi. 78 Other arguments often mentioned would include the need to provide closure for the victims, the need to re-enforce the law, or the need to prevent private vlgilantism by doing public justice. For a 76

77

266

Finnish Yearbook oflntemational LW(Vol. XII, 2007)

But what could that sometlung possibly be? How can we still justify punishment, and, afortiori, how can we justify it in situations where the suspect presumed that far from committing any crime, he or she was actually doing the right thing? 'The history of the criminal law', as Ju&th ShMar has observed [. . . ] is the story of 'the protection of God's interests'. Primitive governments used to punish sin in order to prevent &vine punishment, and they regarded the expiation of sin, the elunmation of taint, as a communal responsibihty . . . p u n i s h g sins has been the preoccupation of the criminal lad.79

And she continued by observing that all thts changed when we stopped believing in sin altogether, so much so that we thmk punishment of sin is not feasible: we no longer punish people for their internal acts, only for their external acts. An intention that remains unperforrned will usually not lead to punishment. What we see increasingly now though is that the requirement of intent itself is done away with: a performance that results in something bad may lead to punishment, regardless of intent. That is only logical, for two reasons. First, some acts are simply too gross to be the result of any specific intention. Surely, no one in his or her right mind can intend to commit genocide, but that does not dunmsh the circumstance that genocide does take place.80 Second (and related), it is often the case, in particular with human rights violations, that if we take the idea of criminal intent seriously, then we must conclude that it is lacking: Mr Evil does not set out to kill, rape or torture, no, he sets out to save the world, or at the very least to show others that his point is a serious one, and superior to theirs.81 And where there is no criminal intent, the application of criminal law becomes difficult to justify. That is not to say that there is no point whatsoever in holding international criminal trials. Perhaps we must simply learn to live with the idea that the law cannot reach all corners of human activity; perhaps we must simply learn to live with the idea that criminal law is not terribly well-equipped to deal with human general critique of such arguments, see Immi Tallgren, T h e sensibility and sense of international criminal law', 13 European Journal oflnternationallaw (2002) 561-595. 79 Shklar, Legalism, qbra note 8, at 46. The quotation marks refer to W. D. Lamont, Thepn'nn)h ofmoral judgment (Clarendon Press: Oxford, 1946). 80 This suggests the poverty of legal language, which insists that genocide is only genocide if it is done intentionally, i.e. with an intent to commit genocide. For reflections on this and related themes, see Martti Koskenniemi, 'Faith, identity, and the kiUing of the innocent: international lawyers and nuclear weapons', 10 I i d e n Journal of InternationalLaw (1997) 137-162. 81 A sobering report is that of the arrest of a certain Dr Kovacevic by NATO troops in Bosnia in July 1997. Reportedly, the arresting troops themselves engaged in activities which would not survive closer scrutiny by a human rights tribunal. See Anthony D'Amato, 'Defending a person charged with genocide', 1 ChicagoJournal of International l a w (2000) 459-469.

Just Revenge? The Deterrence Agwvent in International Cm'minal Lazv

rights violations, and not terribly well-equipped to help deter them either. And perhaps, then, punishment for the sake of punishment may well be the best that we can do. This is how Hannah Arendt could reach her otherwise somewhat incomprehensible conclusion that his lack of evil motives notwithstanding, Eichmann deserved to be punished by death." In language borrowed from Yosal Rogat, she felt that Eichmann's crimes had offended nature, and had violated a natural harmony which only retribution could restore. To Arendt, it was 'precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with, and . . . they were, in fact, the supreme justification for the death penalty7.83There, then, lies the supreme, perhaps the only, justification for international criminal law: punishment, in cases of exceptional gravity, for the sake of punishment.

AS Schabas puts it: 'The death penalty is the only sanction that can be justified solely from the standpoint of retribution'. See WilLiam A. Schabas, 'Justice, democracy, and impunity in post-genocide Rwanda: searching for solutions to impossible problems', 7 CkminaZLaw Forclm (1996) 523-560, at 554. 83 Arendt, Eichmann, s q r a note 37, at 277. Mertens, 'Arendt's judgement', s q r a note 47, argues for another interpretation: in his view, Arendt justified the death penalty (implausibly perhaps) on the ground of Eichmann having lost all sense of community. 82

This page intentionally left blank

How to Find the Proportionate Criminal Sentence for Crimes Against Humanity Felix Herzog*

Talking about proportionate criminal sentences for crimes against humanity one has to start with some reflections on the punishment in that field. Myjrst assz~mptionon this is inspired by the social psychology of torture and indwidual psychology of the offenders. The famous Mdgram experiment has shown, that the people committing torture are not a species far apart from law-abiding citi.ens.1 Between 1960 and 1963, Stanley Milgram did an experimental research at the Faculty of Psychology of Yale University. His aim was to fmd out the degree of possible obedience of 'normal people' under the pressure of authority, including the obedience to hurt or kill another person. In a way, Milgram was very successful. He found out, that absolutely ordinary people were able to torture or kill unknown victims when they were told so by a 'scientistywho explained that everydung had to be done in the name of science. One of the keys to get that power over the test subjects was not the typical aggression of human being but laid in the dlusion of hierarchy and authority that was pretended by Milgram and his team.2 Regardless of the question, if the results of tbis experiment could be fully generahzed under any socio-cultural circumstances, Milgram worked out some plausible indcators that are typically present as conditions of obedience. For example: presence or pretence of authority (including the feeling of inferiority), ideological justification to get 'voluntary obedience', a system of reward (to increase the voluntariness) and the spirituahzation of hierarchy-values hke loyality, duty and disciphe.3 Finally this leads to a mental state that Mdgram called the agentic state; with this term Milgram described 'the condition a person is in when he sees himself as an agent for caflylng

Professor, Humboldt University of Berlin Stanley Milgrarn, Obedence to Autborig. A n eqerimentalview (Harper and Row: New York 1974). 2 Ibid., chapter 13. 3 Ibid., chapters 10,11 and 15. *

1

Finnish Yearbook OfIntemational Law (Vol. XIT, 2007)

out another person's wishe2.4 These assumptions of obedience don't only work in totalitarian systems, as the My-Lay-massacre in Vietnam most urgently showed for example - a humanitarian debacle where soldiers of a democratic nation were involved in a fatal way.5 The conclusion of Mdgram's research about the typical torturer in hierarchic structures is in general: Although there are some people among them, that loose control, the majority are people that are integrated in the social structure, that obey the laws of their society, that have 'normal' moral orientations and that live a family life like everybody else. Being a torturer depends on a certain setting and a social climate, that leads to the perception of the victim as a person of less dignity, as a person one must not respect and one could even kill, because h s person is for political reasons, because of her race or religon regarded as an enemy or inferior. In addtion there is another reason for strict obedience in hierarchcal systems, as Theodor W. Adorno and Max Horkheimer proved in several psychological studies shortly after World War I1 - it's the so-called 'authoritarian personality'. Adorno and Horkheimer pointed out a lot of aspects of h s phenomenon. The roots of this structure of personality can be found in an unloving childhood, a deep adrmration of power and carelessness in or ignorance of social questions; t h ~ sleads to a behaviour that may be shortly described as joyful obedence. People who have an authoritarian personality are predisposed to obey voluntarily with no need of inducing this submissiveness in situations of command. They follow any accepted leader(ship) in a strict and consequent way if the power demands that other people - enemies - are to be hurt.6 My second assumption is to dsprove a very common opinion on the just desert for taking part in the Holocaust. It is often said, that there is no proportionate sentence for an evil of such quality, because any rational reflection on the just desert is a degradation of the unmeasurable pain of the victims. For sure, victims of crimes against humanity can never be fully satisfied for their tortures by any sentence of a court down on earth. Gullt and retribution remain metaphysical questions even when all is said and done. But the task of the criminal justice system is to find a textual structure for describing the evil in a way that leads to a reasonable measurement of pain and @t - and a rational sentence. My third asszimption derives from a cultural pessimism inspired by Sigmund Freuds psychoanalpcal theory of culture. According to Freud, aggression will

-

4

P

-

P

-

Ibid, chapter 10, at 133.

Ibid., chapter 15. Theodor W. Adomo and Max Horkheimer, Yorurteil' in So@ologische Exkztrse (Institute of Social Research in Frankfurt (Main), 1956) 151-161. 5

6

How to Find the Proportionate Cm'minaZ Sentencefor Cm'mesAgainst Humani~ 271

always be a part of manhood, he calls it the indestructible essence of human nature:7 'Homo homini Zupus - who has the courage to deny these words after all the experiences of life and history?'8 Consequently there would be no hope, that international criminal law and the international prosecution of crimes against humanity wdl lead to the disappearance of these crimes everywhere in the world and for any time. They can only be a symbolic approach in the struggle for humanity.

These assumptions have consequences for the aims one could have in sentencing an individual person who committed a crime against humanity. The jrst assumption has the consequence, that it seems very dfficult to apply theories of resocialrzation or rehabilitation to offenders that committed crimes against humanity. They don't need social training programs or therapy concerning their further life in the neighbourhood - Milgram showed frappant that typical offenders in hierarchcal structures are, before the critical situation, socially integrated people.' One could only h k of teaching them tolerance, resistance against the bad influences of power and respect for human rights. But that seems to be very dfficult in a practical manner under the conditions of imprisonment. This aspect which was shown impressive 1971 by Philip G. Zimbardo in the famous Stanford Prison Experiment. Zimbardo conducted a simulation study of the psychology of imprisonment with a group of absolutely ordmary young men that was divided in a group of 'prisoners' and a group of 'guards'. In only a few days the guards became sadistic and the prisoners became depressed and showed signs of extreme stress so that the study had to be stopped.10 The second assumption has the consequence, that a retributivist point of view would often call for the death penalty or conditions of imprisonment near to the pains of hell in these cases, which cannot be applied for reasons of humanity even in cases of crimes against humanity. The reason is that punishment has a symbolic meaning even in cases of death penalty or strict penitentiary. The meaning is that society deprives the offender totally. This deprivation of the offenders is not suitable for a 'symbolic restart' because the death or total isolation stops any kind of

Sigrnund Freud, 'Das Unbehagen in der Kultur' in Anna Freud and Ilse Grubrich-Sitnitis (eds.), Werkamgabe in pei Banden, Band 2: Anwendmgen der Psyhoana&e (S. Fischer Verlag: Frankfurt (Main), 1978) 367 at 402. 8 Ibid., at 400. 9 Milgram, Obedience, sqbra note 1. 10 Philip G. Zimbardo, 'The Stanford Prison Experiment: A Simulation Study of the Psychology of Imprisonment Conducted at Stanford University', <www. prisonexp.org> (accessed 4 May 2002). 7

272

Finnish Yearbook OfIntemationalLaw (Vol. XII, 2001)

'dtalogue of g d t 7 with the offender." The elunination of human nghts violators may cause a form of cultural absent-mindedness. This leads to the conclusion that one has to apply somehow emotional inadequate measures of evil and pain in finding an adequate rational sentence. The third asstlmption has the consequence, that all preventive rationales in f i n h g the proportionate criminal sentence are of very relative value. Could for instance draconic sentences in the Ruanda Tribunal really prevent any crimes against humanity else where in Africa, in Afghanistan or in Columbia? Any manifestation of the validty of norms is confronted with the phenomenon of individual or cultural neutralization by means of refering to higher goals. According to Herbert Jager it is not possible to connect the loss of effect or the neutrahation of norms yith a certain type of offender, collective events or historical epoch. Neutrahation of norms depends on, as Jager states, different condtions and mechanisms that have to be analysed case for case.12

My assumptions and the consequences should not be misunderstood. The international discussion on crimes against humanity, the International Criminal Court and the Statute of Rome show, that the civil society of the world is aware of the disrespect for human rights and the lack of humanity, the cultural and humanitarian deficits of rnankind.13 But one should be modest in the aims of punishment. The sentence in an individual case could not solve the political, social, ethical or relqgous conficts in a region. Tne deterrence factor is very low. And many victims d not be satisfied because they have good reasons in their own and their folks fate to reject rational sentencing. For this reason one has to apply basic principles of punishment in frnding the proportional criminal sanction for crimes against humanity. My proposal is, to refer to Andrew von Hirsch's justification of punishment in his work 'Censure and Sanctions7.14This justification has two main elements: First, that punishment conveys blame and second, that punishment should bear a reasonable relation to the degree of blameworthiness. Applying this justification to 11 Klaus Rogall, 'Justizmord? Todesstrafe irn Strafrecht' in Christian Boulanger, Vera Heyes, Philip Hanfling (eds.), Zur Aktuadtat dw Todesstr.fe (l3erlin Verlag Arno Spitz: Berlin, 1997) 51, at 66. 12 Herbert Jager, Makrokriminadtiil: Studen xur Kt.imnadtat hlhktiver GewaD (Suhrkamp: Frankfurt (Main), 1989) at 209. 13 Cf. Gerhard Werle, 'Menschenrechtsschutz durch Volkerstrafrecht', 109 ZktschnJ j2r de g e d e Strafrechthtsssenschq? 109 (1997) 808-829 and 'Konturen des deutschen Volkerstrafrechts', 21 Jurisren Zeitung (2001) 885-895. l 4 Andrew von Hirsch, Censure andSanctions (Oxford University Press, 1993).

How to Find the Proportionate Cm'minal Sentencefor Cm'mesAgainst Htrmanz'g

273

crimes against humanity one could try to leave the argument behind, that there is no rational measurement of the evil. It is possible to argue, that even if the blame for crimes against humanity should be extraordinarily, there are still degrees of blameworthmess within this highest level of blame. It sounds strange: but there are different levels of applying torture or fulfilling the role of a commander of a concentration camp that cause drfferent degrees of blameworthiness.l5 Von Hirsch explains the principle of proportionality in three steps. First of all he considers that the state's sanctions against proscribed conduct should take a punitive form; that would be, visit deprivations in a manner that expresses censure or blame. Secondly von Hirsch points out that the severety of a sanction has to express the stringency of the blame. The t h d step is that the punitive sanctions should be arrayed according to the degree of blameworthiness (i. e. seriousness) of the conduct.16 To solve the problem of how to fmd the proportionate sanction as exactly as possible, von Hirsch makes the distinction of ordinal and cardinal (i. e. nonrelative) proportionality and emphasizes that it isn't possible to fmd a unique 'proportionate' sanction: The cardinal-ordinal distinction explains why one cannot identify a unique 'proportionate' sanction for a p e n offence. Whether X months, y months or somewhere in between is the appropriate penalty for (say) armed robbery depends on how the scale has been anchored and what punishments have been prescribed for other crimes. The dstinction explains, however, why proportionality becomes a sigruficant constraint on the ordering of penalties. Once the anchoring points and magnitude of the penalty scale have been fixed, ordinal proportionality will require penalties to be graded and spaced accordmg to their relative seriousness, and require comparably-severe sanctions for equally reprehensible acts."

In h s framework I will now try to show, how the International Criminal Tribunal for the former Yugoslavia (ICTY) has argued on drfferent degrees of blameworthiness. Finally I d try to derive from these arguments a theory of sentencing pdelines for crimes against humanity.

l5 This aspect is shown in Gerhard Werle and Thomas Wandres, AuschmMq vor Gen'chf: VoIkemord und bun&s&utsche Strajustip: Mif einer Dokumentafion des Auschm'rp-Urieih (C. H. Beck: Munich, 1995) at 82 et seq. ' 6 Hirsch, Censure, sqra note 14, at 15. '7 Ibid., at 19.

274

Fitwish Yearbook ofInternational Law (Vol. XII, 200 1)

In the Erdemovic case18 the ICTY accused the offender for hls participation in a massacre committed by Serbs. Approximately 1200 unarmed civilians were killed during a five-hour-period. The accused pledged to have tried to refuse to execute the civilians, but that he has been threatened with death if he refused. Erdemovic is personally responsible for the killtng of between 10 and 100 people. The ICTY considered as mitigating circumstances the young age of Erdemovic at the t h e of the event (23 years), the remorse he had shown, the corrigible, tolerant and undangerous character of his fady-minded personality includmg his desire to surrender to the International Tribunal as well as hls plea of g d t y and his subordinate level in the military hierarchy. The facts, that Erdemovic had no nationalistic background or ideals and no criminal record were also mitigating factors as his co-operation with the Office of the Prosecutor. Finally the Tribunal remarked that Erdemovic had to act under the duress to kill otherwise he would be killed; this was regarded as some state of urgent compulsion. The aggravating circumstances were linked to the gravity of the massacre and the scale of the accused's role in it - even though he was not in a high mtlttary position of command. But nevertheless, the fact that Erdemovic prevented his fellow soldlers from killing his former colleague was considered as a mitigating circumstance again. In the Blaskic case19 the offender was an officer serving in the Croatian Army and in &us function responsible for a series of attacks and crimes, for example attacks on towns and villages, murder and serious bodhy injuries of his victims, inhuman treatment of c i d a n s or the forcible transfer of victims. The ICTY emphasized as aggravating factor first of all the high number of victims and the way Blaskic acted - he committed the crimes systematically and also in an extreme cruel ('babybombs', flame-throwers) and sadistic way which included also h u d a t i o n . Furthermore, Blaskic's hrgh command position was a clearly aggravating circumstance. The ITCY remarked as mitigating factors the relatively young age for his position as a commander (32 years), the absence of any criminal record, the 'exemplary behaviour' throughout the trial and his reformable character. In the Tadic case20 the accused was involved in a great number of different most brutal crimes, that included torture carried out in a sadstic way and using torture 18 Prosemtor v. Dra~enErdemovic, Case No. IT-96-22-Tbis- 117, ICTY Trial Chamber 11, Sentencing Judgment (5 March 1998). 19 Prosemtor v. Tihommr Bh& ( h v a River Valg? Case No. IT-95-14-A, ICTY Appeals Chamber, Decision 26 September 2000). 20 Prosemtor v. Dusko Ta& Case No. IT-94-1-A, ICTY Appeals Chamber, Judgment (15 July 1999).

How to Find the Proportionate Cm'minaI Sentencefor Cm'mesAgainst H~manity 275

instruments. There was a massacre of some 800 civilians in a town of around 4000 inhabitants. The I C T J considered as aggravating factors Tadic's desire to contribute to the elimination of non-Serbs as well as the cruel, sadistic, inhuman and humiliating treatment of the victims and the horrifyulg conditions in the camps where Tadic acted. The Tribunal also saw in Tadic's racism against non-Serbs, his nationalistic ideals including h s farnily-incriminated background, his wdhngness to perpetrate the crimes and to prosecute non-Serbs aggravating factors. Moreover the chamber regarded his du-ect participation in the attack on two small towns as well as his desire to eliminate non-Serb elements from the whole region and his increasing political role in the Serb Democratic Party ('SDS') as aggravating circumstances. At last the Tribunal considered Ta&c's indgnation to cooperate with the Prosecutor as an aggravating factor. As mitigating circumstances were considered that Tadic was before the events a law-abidmg citizen, who had no criminal record. Even in the jail of the ICTY he behaved as a 'model detainee' during a period of eighteen months until his trial. Furthermore the Tribunal remarked that the offences were committed in the context of an armed conflict and that propaganda as well as the 'totality of circumstances in Bosnia-Herzegowina' portrayed non-Serbs as enemies and less worth than human beings. In the 'Pavo7/'Zengd case21 the accused were the commander (Tavo') and a guard (Zenga') at a prison-camp of the Bosnian Army. In this prison-camp occurred wilful killing and murder, torture and cruel treatment as well as plunder of private property. Among the mibgating factors one could find the consideration, that commander Tavo' had a good character, because he tried to prevent the commission of acts of violence in the camp. Furthermore the ICTY regarded as a mitigating circumstance - s d a r to the Tadic case - the intolerant general mood agamst other ethnic groups; in h s case it was an anti-Serb-feeling. On the other hand it is stated as an aggravating circumstance, that Tavo' stayed away from the prison-camp especially at night to save himself from the excesses of the guards or soldiers and it was remarked that he made even no effort to investigate specific incidents of mistreatment including the death of detainees. Furthermore the Tribunal regarded as an aggravating factor that Tavo' consistently demonstrated a defiant attitude and a lack of respect for the judicial process as well as for the participants in the trial; it was pointed out that he also presumed to show a lack of awareness of the gravity of the offences for which he was charged. Considered as mitigating circumstances were the youth of 'Zenga' at the time of the crimes (19 years) includmg the immature and fragde personality of this young 21 The

accused were Zdravco Muck (also known as Tavo') and Esad Landzo (also known as 'Zenga'), cf. Prosemtor v. Mtrcic et al., Case No. IT-96-21-Tbis-R117, ICTY Trial Chamber 111, Sentencing Judgment (9 October 2001).

Finnish Yearbook OfIntemationalLaw (VoL XII, 2001) man with a poor family background. Moreover the ICTY pointed out that 'Zenga' had no proper d t a r y training or any instruction of how to treat detainees in an adequate way. Aggravating circumstances were found in his cruelty and particularly sadistic tendencies.22 In the Ft/n/nd@a case23 a military commander was interrogating a woman, while one of h s soldiers tortured and raped her. The commander &d not take part, but did nothing to stop or curtail the solders actions. The trial chamber considered as aggravating circumstances in general that torture is one of the most serious offences and that Furundzija had an active role as commander - even though he didn't rape the woman by himself. The Tribunal also pointed out that the victim was a civilian detainee, at the complete mercy of her captors and that the whole circumstances were particularly horrifymg. As mitigating factors were considered - as in the Erdemovic case - the young age of the accused (23 years) and that he had no prior criminal record. The point that Furundzija was the father of a young chdd was denied as a mitigating factor because this circumstance couldn't be given any significant weight in a case of this gravity. In the Ai'ekrovski case24 the accused was the commander of a prison-camp with very poor conditions of food supply and treatment. In h s case the ICTY seemed to h d only mitigating factors as the good character of the accused and that he had no criminal past before the offences for which he was charged. The Tribunal also considered just a secondary role of Aleksovski and saw him merely as a too1.25 It was also an important mitigating point, that the accused had obviously no racist background and did actively made attempts to improve the conditions for the victims, which included even that Aleksovski hunself transported detainees to medical facilities. The facts of being a husband and a father of two young chddren were also regarded as mitigating circumstances, an aspect which shows -with a glance of the F m n d ~ acase- that the chamber regarded the offences of Aleksovski just as criminal acts of less importance. Finally it can be stated that the Tribunal saw in Aleksovski a so-called 'good character under bad circumstances'.

For this phenomenon -increasing violence and sadism against prisoners by the guards of a jail described, see Zimbardo in the famous 'Experiment', Jupra note 10. 23 Prosemtor V. Fmnd@a, Case No. IT-95-17/1-A, ICTY Appeals Chamber, Judgment (21 July 2000). 24 Pro~ecutorv. Z h t h Aleksovsk, Case No. IT-95-14/1-A, ICTY Appeals Chamber, Judgement (24 March 2000). This seems to be exactly the condition of an obedient person that Milgram describe as 'agentic state'; Milgram, Obedience, supra note 1, chapter 10, at 133. 22

How to Find the Pmportionate Criminal Sentencefor CrimesAgainst Hzmanig

277

In the &narac/Ko~ac/ Vakovic case26 the accused participated in the enslavement, sexual assaults and gang-rape of women on the grounds of ethnic and religious discrimination. Concerning Kunarac, the trial chamber nearly found only aggravating factors. First of all the Tribunal emphasized that he was the person with the leading organisational role includmg substantial influence over some of the other perpetrators in these events. Furthermore the ICTY remarked the youthful age of the particularly vulnerable and defenceless women and p l s , and stated that Kunarac committed these offences over an extended period of time, for example enslavement for two months. Kunarac had a dominant role in all these cases of ethnic and gender discrimination; in the end it was the chamber's conviction that these circumstances causes a higher culpability. The fact that Kunarac surrendered voluntarily was considered as a mitigating factor as well as his statement of remorse in one case of gang-rape.

Looking closer at the rationale of the sentencing considerations of the ICTY, one could find four clearly aggravating and seven clearly mitigating factors. Both, the aggravating as well as the mitigating circumstances, are divisible in three subparts: personal background, circumstances of the crime itself and the behaviour afterwards.

Four aggravating factors [l-41 A clearly aggravating personal background is the offenders nationalistic and racist belief of the inferiority of another ethnic group includmg the conviction of the neccessity to discriminate and e b a t e this group. Especially a political leadership before the crime itself is regarded as reason for the responsibility of creating a c h a t e encouraging crimes against humanity [l]. The most important aggravating circumstance of the crime itself is doubtless a leading role in a certain criminal action. The Tribunal stated the relationship between the leadmg role and the sentence very clearly in the Blaskic case: 'Command position must systematically increase the sentence' or 'command position is more of an aggravating circumstance than direct participation' [2]. Another important aggravating circumstance is cruelty and sadism in the execution of crimes against humanity, described for instance as 'desire to contribute to the e h a t i o n of non-Serbs', 'cruel treatment', 'cold-blooded commission of murder and mistreatment', 'enthusiastically committed the crimes', 'bestial nature of 26 Prosemtorv. Drago&b Kt/narac et al, Cases Nos IT-96-23-A & IT-96-23/1-A, ICTY Appeals Chamber, Judgement (12 June 2002).

278

Finnij-hYearbook $International L z w (Vol. XII, 2007)

behaviour'. The most emotional sentencing considerations can be found in the Fztmndva case (sexual torture and rape during an interrogation) and in the Kunarac/Kovac/ Vakovic case (sexual enslavement and gang-rape of Muslim women). My impression is that the blaming considerations and severe punishment in these cases can be explained by the fact that the involved women witnessed their tragedy in court [3]. Last but not least the Tribunal regards the indignation to co-operate with the Prosecutor and the court as a clear aggravating factor after the crime [4].

Seven mitigating factors [l-7] An important mitigating personal factor is the young age of an offender which leads the Tribunal obviously to the general consideration that the personality should be corrigible [l]. Another point is the absence of any criminal record [2]. This fact should not be astonishing taking in account psychological knowledge on torturers and their biographical background. The thud mitigating personal circumstance is the so-called 'good character' of the offender. In the Alehov~kicase and in some aspects in the Erdemovic case the Tribunal considered that even under the circumstances of systematic crimes against humanity (massacres and concentration camps) it is possible to judge the good or bad character of an offender: Erdemovic is attested an 'honest disposition' because he saved the live of a former colleague. Aleksovski is attested a 'good character' because he 'personally transported detainees to medical facilities'. According to the Tribunal, such persons 'should be given a second chance to start life afresh upon release' (Erdemoviccase) [3]. The probably most important mitigating circumstance of the crime itself is a 'secondary role' in the actions [4]. Furthermore the Tribunal regards as a mitigating aspect the general political and nationalistic situation or mood concerning an ethnic group - a circumstance the offender normaly can't flee from. One could say, that the court has some kind of understanhg for the accused, if he acted under the pressure of the circumstances and showed no enthusiasm in committing crimes against humanity. In the case of a massacre with more than thousand people killed (Erdemovic case) this approach can lead to a lot of mitigating considerations concerning the political circumstances and the subordinate role of the offender. The ~ribunalobviously regards the personal responsibility for the crimes minor the higher the offender is entagled gzllltlessly in h s general circumstances [5]. Important mitigating factors in the behaviour of the offender after the crimes respectively during the trial are shown remorse [6] and co-operation with the Prosecutor or the Court

m.

How to Find the Propotsrionate Criminal Sentencefor CrimesAgainst Humanig

279

The analysis of sentencing considerations of the ICTY in cases of crimes against humanity leads to the following three proposals for sentencing gude lmes [l-31: For practical and theoretical reasons is it not possible to apply the european discussion on aims of punishment to the sentencing considerations of international courts in cases of crimes agamst humanity. The practical difficulty is already the incompatibhty of all the criminal-law-systems in the world, obvious for example if lawyers from Sweden, Iran, Israel and China have to work together in an international court. From a theoretical point of view it is not only difficult but impossible to create a 'worldwide' conviction on aims of punishment because these aims are tied up in the historical development of each society [1].27 For &us reason the sentences of the International Criminal Court can only have a symbolic function in the struggle for human rights-respect all over the world. Sentencing considerations have to be based on the ground of the common denornitator of common sense. The severity of penalties has to be determined referring to the seriousness of the crime. The main factors of the seriousness of a crime are the severity of the damage and the amount of the offender's guilt. The amount of g d t can be determined on common sense grounds by the degree of freedom of choice for the evil and under the circumstances of an evil social structure by the role of the offender in this structure. Taking in account the social circumstances and group dynamics of crimes against humanity it is possible to make dstinctions between leadershp and subordinate roles in the commission [2]. Furthermore it seems to be possible to evaluate the degree of emotional commitment of a person in disrespecting the human rights of his victims. It might sound cynical, but crimes against humanity can be committed in a correct or cruel manner [3]. In &us framework of common sense arguments a theory of sentencing guldeltnes for crimes against humanity could be elaborated. Its main idea should be the internal proportionality of sentences. And its aim should be a manifestation of the values of human rights and humanity in rational manner.

-

--

Felix Herzog, Pravention &S Unrecbts o&r Manifestation &S Rechts: Bausteine v r Ubem'ndung des heteronompriiventiven Denkens in der Stn$rechtstheorie det.Modme (Frankfurter kriminalwissenschaftliche Studien. 19: Frankfurt (Main), 1987) at 82 et seq. 27

This page intentionally left blank

Prosecuting International Crimes in Domestic Courts: A Look Back Ahead Florian ~ e sberger* s

Towards an International System of Criminal Justice In the 1970s, when Jorge Videla,' Pol Pot: and Mengistu Haile Mariam3 ruled as tyrants in Argentina, Cambodia and Ethiopia, they were confident that they would never be made to pay for the gross violations of human rights committed during their rule. So far, they have been proven correct. Today, however, we have reason to believe that the fate of such authoritarian dictators is becoming graver: We have the privilege of witnessing the emergence of an international system of criminal justice. An In temational Criminal Court - permanent, independent, and authorized to * Senior research fellow, Law Faculty, Humboldt University, Berlin, Germany. An earlier version of this article was presented at the annual Finnish-German Symposium on International Criminal Law, held at the University of Helsinki on 11 June 2001. The author is grateful to Wolfgang Kaleck, attorney-at-law in Berlin and legal representative of several victims in the proceedings mentioned infra at notes 38-41 and accompanying text, for many fruitful discussions; many of the views and opinions expressed in this article are the product of these conversations. Special thanks extend to Sylee Gore for refining the English version of this article. The hdcle was completed in October 2001. 1 Jorge Videla was a member of the military junta and commander in chief of the Argentinean army from 1975 to 1978. During the so-called 'campaign against subversion' thousands of people disappeared and were killed, see infra note 30 and accompanying text. Videla was convicted by an Argentinean court and sentenced to life imprisonment in 1985, but was pardoned by the Argentinean President in 1990. Today, he lives in Buenos Aires, Argentina. 2 Pol Pot was Prime Minister in the government (generally referred to as the 'Khmer Rouge') that ruled Cambodia from 1975 to 1979. The Khmer Rouge was widely accused of atrocities against the population in Cambodia in connection with its pursuit of a policy of radical communalization. See H. J. De Nike et al. (eds), Genocide in Camboda, Dommentsfmm the Tn'al ofPol Pot and Ieng Saty (University of Pennsylvania Press: Philadelphia, 2000). When Pol Pot became available for prosecution in 1997, no state was willing to seek his extradition. He died in 1998. 3 Mengistu Haile Mariam ruled Ethiopia from 1974 to 1991. During the so-called 'Red Terror Campaign', thousands of people were executed or disappeared. Charges on counts of genocide and crimes against humanity against him are stiU pending in an Ethiopian court. See J. V. Mayfield, 'The Prosecution of War Crimes and Respect for Human Rights: Ethiopia's Balancing Act', 9 Emor InternationalLaw Review (1995) 553-593. Today, Mengistu lives in Harare, Zimbabwe.

Finnish Yearbook OfIntematioml ldzv (Vol. Xlf, 2001)

prosecute the 'most serious crimes of international concemJ4- is being established as the heart of the 'new penal world order7.5The number of international ad hoc tribunals is constantly increasing.6 Domestic prosecution under the principle of universal jurisdiction is complementing these efforts to bring the perpetrators of international crimes to justice.' The message of modem international criminal justice is clear: Gross violations of basic human rights d be tolerated no longer. Anyone committing a crime of international concern, such as a crime against humanity, genocide, or a war crime, be he a head of state or a WLUVlg agent, must be aware of the potential criminal repercussions. However, whether and when this sentiment will

4 See Arts 1 and 5 of the Statute of the International Criminal Court, Rome, 18 July 1998, UN Doc. A/CONF.183/9 (1998), reprinted in 37 International Legal Maten'ah (1998) 999, (hereinafter the 'ICC Statute'). The jurisdiction of the International Criminal Court will cover the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The jurisdiction over the crime of aggression however shall not be exercised before a further provision is adopted by the State Parties assembly defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to that crime. 5 On 17 July 1998, the United Nations Conference of Plenipotentiaries adopted the ICC Statute. The Statute entered into force on 1 July 2002. So far 139 states have signed it. As of 13 November 2002,84 states have ratified the Statute. For the current number of ratifications, see <www.untreaty.un.org/ ENGLISH/bible/englishinternetbible/ partI/chapterXVIII/treatylO.asp> (visited 13 November 2001). 6 While the International Criminal Tribunal for the former Yugoslavia (hereinafter 'ICTY'), established pursuant to Security Council Resolution UN Doc. S/RES/827 in 1993, and the International Criminal Tribunal for Rwanda (hereinafter 'ICTR'), established pursuant to Security Council Resolution UN Doc. S/RES/955 in 1995, are already in operation, the most recent examples of ad hoc tribunals are the Special Court for Sierra Leone (see Report oftbe Semetag-General' on the Estabhsbmenl ofa Special Coztrt for Sierra Leone, UN Doc. S/2000/915 (2000) and M. Frulli, 'The Special Court for Sierra Leone: Some Preliminary Comments', 11 Eztropean Joztm~l'of International Lazv (2000) 857), the Panels with exclusive jurisdiction over serious criminal offenses in East Timor (see UN Transitional Administration in East Timor, Regulation No. 2000/ 15, UN Doc. UNTAET/REG/2000/15 (2000) and S. Linton, 'Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor', 25 Melbome Universig Law Review (2001) 122) and the Extraordinary Chambers in Cambodia (see Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135, UN Doc. A/53/850 (1999), Annex, and Tribunal Memorandum of Understanding between the United Nations and the Royal Government of Cambodia, 9 November 2000). The 'internationality' of these tribunals takes various forms. Some, like the ICTY, are established under international law, apply international law, and are composed of judges from different countries. Others, like the Sierra Leonean Special Court, are more hybrid in their 'internationality'. 7 See for the most prominent recent case, the prosecution of Augusto Pinochet in Spain and the United Kingdom, R. Wedgwood, 'International Criminal Law and Augusto Pinochet', 40 Virginia Jozlmal of International Lazv (2000) 829; R. J. Wilson, 'Prosecuting Pinochet: International Crimes in Spanish Domestic Law', 21 H m a n RigbtsQztader& (1999) 927. The 'Pinochet precedent' contrasts the common reality of domestic prosecutions, see R. Wedgwood, 'National Courts and the Prosecution of War Crimes', in G. Kirk McDonald and 0. Swaak-Goldman (eds), Szlbstantive and Procedztral Aqects of InternationalC7;minalLazv (2 vols, Kluwer Law International: The Hague, 2000), vol. I, 389-414.

Proseating International Cmjnes in Domestic Co~rts:A Look Back Ahead

283

be f d y established in intemational law and - even more importantly- in international practice, remains an open question.8 The aim of this article is not to speculate on the potential repercussions of the implementation of the international system of criminal justice. Rather its focus is retrospective justice. It discusses the chances to successfully prosecute the members of authoritarian regimes who committed crimes of international concern before 'Rome'g signalled the new era of international criminal justice. It will be shown that the 'pre-Rome' crimes might well escape the mechanisms of the emerging system for three main reasons. First, the forthcoming international criminal court lacks retroactive jurisdiction; second, domestic law does often not provide for the definitions of crimes required to adequately prosecute intemational crimes; and third, domestic criminal courts often lack jurisdction to prosecute crimes committed abroad. The article will focus on these problems as exemplified in the prosecution of international crimes in Germany, specifically in the prosecution of members of the rmlltary juntas that ruled Argentina from 1977 to 1983 by the German criminal justice system. The article concludes with some general observations on the prosecution of 'pre-Rome' crimes.

Coming to Terms with the Past Presently, there is no international enforcement mechanism or agency capable of globally investigating and prosecuting 'pre-Rome' crimes against international law. The Intemational Criminal Court will have only jurisdxtion d o n e temporis over crimes perpetrated after the entry into force of the ICC Statute.10 T h s is not a consequence of the principle nullm mzinen .rine lege @raevia), but a matter of

Facing the reality of widespread atrocities around the world, indeed, there is little room for 'judicial romanticism'. So far, it appears that the fact of being prosecuted by an international tribunal is a 'privilege' of 'deposed rulers' such as Slobodan Milosevic; see M. M. Penrose, 'It's Good to be the King!: Prosecuting Heads of State and Former Heads of State Under International Law', 39 Colrumba J o m a l of Transnational La2v (2000) 193-220. For an excellent analysis of the capacity of international criminal justice in general see P. Akhavan, 'Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?', 95 American Jo~maIoflntemational LW(2001) 7, and T. Farer, 'Restraining the Barbarians: Can International Criminal Law Help?', 22 Human RzghtsQuafler& (2000) 90. 9 The term 'Rome' ('pre-Rome', 'post-Rome') as used in this article refers not only to the Rome Conference and the International Criminal Court (see s@ra note 5)' but to the wider phenomenon of the emergence of the international system of criminal justice as a whole. 'Rome' is not a historical event but a process which remains to be completed by implementing the various elements of international justice envisaged by the Rome Statute. These elements include most notably the establishment of the International Criminal Court, but also the equipment of the domestic legal systems to be able to 'complement' the efforts of the Court. 10 Art. 11(1) ICC Statute, s@ra notes 4 and 5. 8

Finnish Yearbook of IntemationalLaw (I/al. XII, 200 I ) compromise at the Rome Conference.ll The fact that the crimes within the jurisdiction of the court have been long-established under customary international law would, in principle, have made it possible to provide the International Criminal Court with retroactive jurisdction. However, under the ICC Statute the permanent International Criminal Court has to be ruled out from the possible international caddates to punish 'pre-Rome' crimes. In contrast, the alternative model of ad hoc established international tribunals typically includes an expostfacto element.12 The ad hoc tribunals have been founded with the understandmg that they apply rules established under customary international law at the time when the criminal acts were committed;l3 thus, one may argue that the prohibition of retroactive punishment as a principle of international law is not impaired. Although the concept of ad hoc tribunals appears to be an option for the international prosecution of 'preRome' crimes, and notwithstanding the recent developments in Sierra Leone, Cambodia, and East Timor,l4 it is unlikely that the model of costly and expensive international ad hoc tribunals will become the standard for combating international crimes, in particular once the International Criminal Court is in operation. If no direct15 enforcement mechanisms are available, the only prosecuting agencies remaining are the national criminal justice systems. However, national prosecutions seem not to be the ideal options either. As Van den Wyngaert points out, even in those states where the political wlllmgness to investigate and prosecute persons who have committed crimes against international law exists, the 'efforts to

See S. A. Williams, 'Art. 1lY,in 0 . Triffterer (ed.), Commentay on the Rome Jtat~teoftbe International Cn'minalComf, Observers'Notes, Azticle by Article (Nomos: Baden-Baden, 1999) 323-328, paras 2 and 4. 12 See, e.g., Art. 1 of the ICTY Statute [Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, Annex (3 May 1993), reprinted in 32 International Legal Materiab (1993) 11591 ('crimes committed since 19913; and Art. 1 of the ICTR Statute [Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, SC Res. 955 (8 November 1994), reprinted in 33 International LegalMaterab (1994) 16021 ('crimes committed between 1 January 1994 and 31 December 19943. 13 See, e.g., Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), UN Doc. S/25704,3 May 1993, para. 34. l 4 See szcpra note 6. 15 For the basic distinction between 'direct' enforcement (e.g. by the International Criminal Court) and 'indirect' enforcement (by the states) of international criminal law see M. C. Bassiouni, 'The Sources and Content of International Criminal Law: A Theoretical Framework', in M.C. Bassiouni (ed.), International Cn'minal Lazv (2nd edn, 3 vols, Transnational Publishers: Ardsley, 1999), v01 I: Crimes, 3l26 at 110. 11

Prosemting International Crimes in Domestic Coalits:A Look Back Ahead

bring such criminals to justice often fad for purely juridcal reasonsY.16Domestic courts generally apply domestic law, and -a first obstacle to effective national prosecutions - special provisions criminalizing crimes against humanity, genocide, and war crimes are seldom found in domestic codes or case law. Although several states took the ratification of the ICC Statute as an occasion to 'internationalize' their criminal law provisions by creating new (international) crimes, these new codes and provisions are generally not to be applied retroactively.17 The second potential obstacle to national prosecution is the fact that crimes against international law are typically state crimes, and as a consequence the territorial state, the state where the crime has been committed, is usually neither wllllng nor able to effectively prosecute the offenders18 Therefore, realistically, it is left to the criminal justice systems of states not directly involved in the crimes (so-called 'third states3) to bring these offenders to justice. Because international crimes will, by definition, not have been committed w i b the territory of a 'third state', it is necessary that the state's domestic courts be provided with extra-territorial jurisdiction.19 Thus, the starting point of the following analysis is that national criminal justice systems are responsible for prosecuting 'pre-Rome' crimes. It is the tradrtional, the 'pre-Rome' law of the 'third states', that generally has to be applied to the 'pre-Rome' cases. If human rights violators of the past are to be punished, one must depend on the capacity of domestic criminal law to prosecute international crimes.

16 C. Van den Wyngaert, War Crimes, Genocide and Crimes Against Humanity - Are States Taking National Prosecutions Seriously?', in Bassiouni, International Criminal Law, szlpra note 15, v01 111: Enforcement, 227-238 at 228. 17 For the reform of national criminal laws within the process of ratifymg the ICC Statute, see C. Kress and F. Lattanzi (eds), The Rome Stattcte and Domestic Legal Orders (Nomos: Baden-Baden, 2000), vol. I: General Aspects and Constitutional Issues; W. A. Schabas, 'Follow Up to Rome: Preparing for Entry into Force of the International Criminal Court Statute', 20 Human Rights Lazv Journal (1999) 157; and F. Jessberger and C. Powell, Trosecuting Pinochets in South Africa', 14 South Afrian Journal of Criminal Justice (2001) 344. 18 The complex issues of 'transitional justice' and the discussion of available (other, non-prosecution) options in territorial states is beyond the scope of this article, but see N. J. Kritz (ed.), TransitionalJustice, How Emerging Democran'es Reckon with Former Regimes (3 vols, US Institute of Peace: Washington DC, 1995); and P. B. Hayner, Unqeakable Tmths, Confronting State Terror and Atron'g (Routledge: New York and London, 2001). 19 The recognition of extra-territorial jurisdiction differs among the legal systems of the world. Traditionally, common law systems are far less willing to apply their criminal law to extra-territorial cases than are states with civil law systems, see J. Dugard, InternationalLaw, A South African Perspective (2nd edn, Juta: Kenwyn, 2000), at 135.

286

Finnish Yearbook oflntemtional law (Vol. XII, 2001)

The Prosecution of International Crimes in Germany Prosecuting international crimes in Germany has always been a difficult task. Traditionally, there has been little love between the Germans and international criminal law. After all, it were the crimes committed by Germans that instigated the development of the first effective international criminal tribunal in Nuremberg. The poor account of the efforts made in Germany to prosecute the crimes of the Nazi era has been the subject of extensive research and analysis.20 The legitimacy of the Nuremberg trials of 1945 and 1946, and that of the further trials conducted by the occupymg powers, was not even readily accepted by liberal Germans. In the period following 'Nuremberg', both the state's institutions and judiciary displayed a strong reluctance to implement and apply international criminal law.21 The creation of a special crime provision for genocide in the Penal Code in 1954, pursuant to the obligations under the Genocide Convention," is a notable exception. For centuries, the international dunension of criminal law and criminal justice has been largely ignored in Germany. Paralleling the developments on the international level in the 1990s, the German attitude towards international criminal justice shifted from strong aversion to overwhelming approval. In the case of crimes committed in the former GDR, the judiciary for the fust time referred extensively to international criminal law and the Nuremberg prin~iples.~3 Moreover, the German criminal justice system has recently increased its efforts to prosecute international crimes committed outside Germany. The most relevant example is the prosecution of crimes committed on the territory of the former Yugoslavia in the early 1 9 9 0 ~The . ~ ~number of cases investigated and prosecuted by German authorities exceeds that of those prosecuted by the ICTY. The conviction of two Serbs for genocide has been confirmed by the Federal

20 See e.g. G. Werle, "We asked for Justice and Got the Rule of Law": German Courts and the Totalitarian Past', 11 S o d African Jo~maZonH m a n Rights (1995) 70-83. 21 See H. Ostendorf, 'Die Auswirkungen der Numberger Prozesse auf die deutsche Justiz sowie fiir die Errichtung eines intemationalen Strafgerichtshofes' in K. Liiderssen (ed.), A.z&gekZarte Kinzinatpolitik oder Kaqfgegen das Biise (3 vols, Nomos: Baden-Baden, 1998), v01 111,170-189. 22 Para. 220(a) StGB (German Penal Code). 23 See e.g. Bundesgerichtshof (Federal Supreme Court), BGHSt. 41,101 at 109. 24 In these cases, the active role of the German courts was obviously prompted by the fact that many Yugoslavian citizens - both offenders and victims - live in Germany as guest workers or refugees. See for details K. Ambos and S. Wirth, 'Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts' in H. Fischer, C. Kress and S.R. Luder (eds), International and National Prosedon of Cimes Under IntemationaZ Law, Czn-ent Developments (Berlin Verlag Amo Spitz: Berlin, 2001) 769-797.

Prosecziting International Crimes in Domestic Coztds: A Look Back Ahead

Supreme Court and the Constitutional C0~rt.25The active role of the judiciary is reflected by the statements and decisions of the German government and parliament, whch have been s d a r l y supportive of a strong international system of criminal justice. The German government supported the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, and has been taking an active role in the negotiations of the ICC Statute.26 The government has explicitly stressed its commitment to the enforcement and development of intemational law in connection with the ratification of the ICC Statute, which was overwhelmmgly approved by the Parliament.27 In a statement before the German Parliament, the Federal Minister of Justice voiced her approval of the active role of the German courts, emphasizing that the International Criminal Court alone would not be in a position to guarantee the prosecution of international crirnes, but would require assistance in the form of increased effort on the part of the national justice s~stems.~8 Furthermore, the government aims to improve the legal grounds for prosecuting international crimes. In a move explicitly designed to establish a new and better basis for the prosecution of crimes against international law in Germany, a Code of crimes against international law has been prepared by the Federal Ministry of J~stice.~g Since it is unlikely that the government expects intemational crimes to be committed on German territory in the near future, one can assume that the true reason for the new code, beyond a 'symbolic function' signahg the German commitment to contribute to the international system of criminal justice, is to equip the German judiciary to cover extra-territorial cases. In fact, Germany is in a strong position to take on such a role: It commands substantial political influence, stability, resources, as well as having a modem criminal justice system. Today, it seems safe to say that the German government, parliament and judiciary are committed to enhancing the international system of criminal justice. Since, as will be shown in the following text, the applicable German law is still 'preRome' law, the situation in Germany vis-i-vis international criminal justice remains split: While politically a strong open-mindedness towards international justice is 25 See the benchmark decision of the Bundesgerichtshof Federal Constitutional Court), BGHSt 45,64; Bundesverfassungsgericht,Nezle Zeitschnftfir Strafrecht (2001) 240. 26 See F. Jarasch and C. Kress, 'The Rome Statute and the German Legal Order' in Kress and Lattanzi, The Rome Statate, sqra note 17, vol. I: General Aspects, 91-112, at 91; and 'Entwurf der Bundesregierung eines Gesetzes zum Romischen Statut des Internationalen Strafgerichtshofs vom 14. Februar 2000', Begriindung zum Vertragsgesetz, Bundestags-Drucksache 14/2682, at 6 (hereinafter 'Entwurf der Bundesregierung'). 27 See 'Entwurf der Bundesregierung', ibid, at 6. 28 See Bundesministerin der Justiz, H. Daubler-Gmelin, Deutscher Bundestag, Stenografischer Bericht, 90. Sitzung, 24 February 2000, Plenarprotokoll14/90,8380. 29 During the ratification process the Government announced its intention to establish a new and better basis for the prosecution of international crimes in Germany, see 'Entwurf der Bundesregierung', s q r a note 26, at 7. For the German Code of crimes against international law see infra note 99 and accompanying text.

288

Finnish Yearbook oflntemationalLaw (Vol. XII, 200 l )

expressed, the legal basis does not (yet) adequately reflect the changes in intemational criminal justice. The practical consequences of this situation are illustrated in the efforts of the German justice system to prosecute members of the Argentinean military apparatus involved in human rights violations.

The Argentinean Juntas in the Dock Since 1998, the German jucbciary has been investigating the cases of people who disappeared in Argentina during theJate 1970s and early '80s. The manner in which these cases have been handled by the German criminal justice system shows the range of legal questions raised when intemational crimes are prosecuted with domestic tools and mechanisms, and demonstrates the limitations of the 'pre-Rome' law in general and of the applicable German law in particular to prosecute crimes against humanity committed abroad.

The Facts The system of repression established in Argentina between 1976 and 1983 was among the bloocbest of its kind.30 During the seven years of repression following the military coup on 24 March 1976, thousands of people became victims of human rights violations. The military junta announced its intention to stamp out subversion at any cost, and illustrated its resolve by resorting to torture and extrajudicial execution. Moreover, the 'disappearance' of persons became a common practice: Plain-clothed members of security forces would kidnap people from their homes, their jobs, or from the streets, and dnve them to secret detention centers. There, they would be questioned and tortured, sometimes over a period of months. Victims surviving the torture and the inhumane living conditions were generally executed. The National Commission on Disappeared Persons (CONADEP), which was established after democracy was returned to Argentina in 1983, lists 340 clandestine detention camps in Argentina and has documented nearly 9,000 cases of disappearances, while indicating that the true figure may be even hlgher. In fact, there are estimates that as many as 30,000 persons disappeared. The report concludes that the armed forces had used the state's military apparatus to commit human rights violations in an organized manner. The systematic violations of fundamental human rights, including the forced disappearances and torture, were carried out by the military r e p e as part of a widespread methodology of 30 See Comisibn Nacional Sobre la Desaparicion de Personas, Nmca Mris: The I3.tpot-t $the Argentine National Commission on the Disappeared (Farrar, Strauss: New York, 1986); and A. M. Garro and H. Dahl, legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Jo~rnal(1987) 283-344. Backward', 8 H m a n fights LW

Pmectlting International Crimes in Domestic Courts: A Look Back Ahead

repression. Presently, the vast majority of the disappearance cases remains unsolved. In categories of international criminal law, the r e p e of repression in Argentina between 1976 and 1983 clearly committed crimes against humanity, as dehned under customary international law and Article 7 of the ICC Statute.31 In the period immediately after the state of siege was lifted and Raul Alfonsin was elected President, there were promising signs that the repressors would successfully be brought to justice. Criminal investigations were initiated against many of those responsible for &sappearances, executions, and torture. Several members of the juntas were convicted and sentenced to long prison ~entences.3~ However, due to growing military pressure, the story of transitional justice in Argentina soon turned into the usual one of impunity. Major setbacks included two laws of 1986 and 1987, which frustrated all prosecutorial efforts by setting an extremely short statute of h t a t i o n s on when criminal complaints could be filed against the former repressors, and by giving an absolute defense to all but those perpetrators at the very top of the d t a r y hierarchy.33 In addition, the convicted military leaders soon received pardons." Notwithstandmg a few very recent decisions of single Argentinean courts?5 which seem to point to the revival of court action, it appears unlikely that an effective prosecution of crimes against humanity will take place in Argentina in the near future.

The Cases Foreign courts have been more open to instigating legal action. As early as 1983, criminal proceedmgs against Argentinean military leaders were initiated in Italy on behalf of &sappeared Itahans; in 2000, an Italian court convicted several persons for 31

In particular the crimes against humanity of murder, torture and enforced disappearance,Art. 7(l)(a),

(f) and (i) of the ICC Statute, s@ra note 4. See further UN General Assembly, Declaration on the

Protection of AU Persons from Enforced Disappearance, UN Doc. A/RES/47/133 (1992); InterAmerican Convention on the Forced Disappearance of Persons, Washington, 10June 1994, in force 28 March 1994, reprinted in 33 International Legal Maten'ah (1994) 1529; and C. H. Hall, 'Art. 7 (i)' in Triffterer, Commentay on the Rome Statnte, s q r a note 11,151-154, at 151, para. 73. 32 See, e.g., C k a r a Nacional de Apelaciones en 10 Criminal y Correccional de la Capital Federal, s al.), reprinted in 8 H m a n Rights Law Jo~rnal Judgment of 9 December 1985 (re Videla, Agosti, M ~ a s et (1987) 372. 33 Ley de Punto Final (Law of 'Full Stop'), law 23.492 of 23 December 1986 (Legislacibn Argentina 1986-B, at 1100) and Ley de Obediencia Debida (Law of 'Due Obedience'), law 23.521 of 4 June 1987 (Legislacibn Argentina 1987, No. 335). Further, Garro and Dahl, 'legal Accountability', sqra note 30, at 334. 34 In 1989 and 1990 President Menem pardoned all imprisoned members of the juntas. 35 See Videla, primer dictador procesado por el "Plan Condoryy',11 July 2001 <www.el-mundo.es/ elmundo/2001/07/10/internacional/994773644.h(visited 11 October 2001). 'Resoluci6n del juez federal argentino Gabriel Cavallo, que declara la inconstitucionalidad y la nulidad insanable de las leyes de Punto Final y de Obediencia debida' 6 March 2001, <www.elpais.es/temas/textos/cavallo> (visited 11 October 2001).

290

Finnish Yearbook ofInternational Ldzv (Vol. XII, 2001)

crimes against Italian citizens during the military d~tatorshrp.36In 1990, a French court sentenced a member of the Argentinean marines to a life term in prison for his part in the dsappearance of two French nuns. And in 1996, a Spanish judge charged a number of former Argentinean d t a r y leaders on counts of genocide and terrorism, and issued international arrest warrants.37 With these and several other precedents in mind, human rights activists and family members of the victims studed the possibility of initiating criminal proceedings in Germany. The German criminal justice system was confronted with the events in Argentina in May 1998, when relatives of disappeared persons submitted their cases to the authorities. An ahance of several NGOs, the Coalition Against Impunity, took up their cause and provided legal, financial, and public relations assistance.38 Common to all complainants and victims was their close tie to Germany. A few of the victims were German citizens, and all of them were of German origin. Several were children of Jewish-German parents forced to leave Germany during the Nazi era. A typical case is that of Nora Marx:39 Marx was born in 1948 in Buenos Aires. Both her parents were German Jews who had to leave Germany in the late 1930s. Pursuant to a Nazi law of 1941, both parents had been denaturalized.40 In 1964, her mother applied for German citizenship and was regranted it. Nora Marx, who held only Argentinean citizenship, worked as a civil servant in the Argentinean air force, and was actively involved in trade union work. On 21 August 1976 she was kidnapped by the Security Police. She was last seen in a detention centre in Buenos Aires. All inquiries and habeas corpus proceedings initiated by her mother were unsuccessful. Currently, the Office of the Prosecutor at Nuremberg, to whch the cases have been assigned by the Federal Supreme Court,4l is carrying out inquiries in at least 20 cases of disappeared persons. The investigations are directed against the members of the military juntas that ruled Argentina between 1976 and 1983, as well as against several lower-ranking members of the military and the security forces. In total, about 50 persons are affected by the proceedmgs.

36 See Corte di Assise di Roma, Repubblica italiana contro Santiago Riveros et al., judgment of 6 December 2000, <www.derechos.org/nizkor/italia/sent.html>,(visited 11 October 2001). 37 See Wilson, 'Prosecuting Pinochet', szlpra note 7, at 932; and M. Lacabe, 'The Criminal procedures Against Chilean and Argentinean Repressors in Spain', <www.derechos.net/marga/papers/ spain.html> (visited 11 October 2001). 38 The Coalition installed a comprehensive internet-site covering the proceedings, see <www.menschenrechte.org/Koalition.htrn> (visited 15 October 2001). 39 For details of her case see the complaint submitted on 21 June 1999, <www.menschenrechte.org/ Koalition/maml.html> (in German) (visited 11 October 2001). 40 For details see infra note 60 and accompanying text. 41 See Bundesgerichtshof, decision of 20 October 1999 (2 ARs 381/99), on file with the author.

Prosecuting International Cm'rnesin Domestic Courz's:A Look Back Ahead

29 1

The Law Both the representatives of the victims' farmlies and the prosecutors in Nuremberg have been confronted by the same crucial question: Can a handful of pensioners living peacefully - and shielded by national amnesty laws - on the other side of the world be punished by a German court for crimes they committed years ago and far from Germany? Leaving aside all moral implications involved, it was clear from the very beginning of the proceedings that the answer was to be determined by matters of law as well as by matters of evidence. The matters of evidence as well as the matters of procedural law42 raised by this question, though of high practical importance, do not qualitatively differ in the prosecution of international crimes from the prosecution of any other allegedly criminal act committed in temporal and local &stance from the investigating state. The focus of the following analysis d therefore be on issues of substantive criminal law. Since several suspects are high-ranking commanders and military leaders who were seldom directly involved in specific crimes, the first question is how to attribute criminal responsibility for specific criminal acts to them. Though theoretically a complex issue, the German prosecutors have been aided by the fact that the German courts, whde trying leaders of the former GDR after Germany's reunification, developed clear standards for the criminal responsibility of offenders acting within a herarchcal organization.43 The second problem is that crimes against humanity are not included in the German Penal Code. Of the core crimes of international law, only the crime of genocide is covered: Paragraph 220(a) tracks the definition of the Genocide Convention. Direct application of the Geneva Conventions, the torture convention, or any other international instrument binding on Germany is not an option; neither is the application of crimes under customary international law. The reason for both is the strict interpretation of the nullurn &men First, it is important to note that the level of cooperation and mutual legal assistance between the states involved, and in particular between the forum and the territorial states, differs from case to case. Because Argentina and Germany share no bilateral treaty on legal assistance, there is little formal cooperation between the two countries. Furthermore, Argentinean law prohibits the extradition of Argentinean citizens, see H. Griitzner and P.-G. Potz, Internationater Recbt~hi&verkebrin Strafsacben (2nd edn, 5 vols, Decker: Heidelberg, 2001), v01 11, I1 A 19, paras 2 and 7. Secondly, in cases of extraterritorial jurisdiction, the strict principle of legahty that is generally applicable under German law and that deprives the prosecutor of any discretion as to whether or not to prosecute a case is replaced by prosecutorial discretion, see para. 153c(l) StPO (German Code of Criminal Procedure). It can be argued, however, that this discretion is in fact limited (if not effectively abolished) in cases of most serious crimes, such as crimes against humanity, because when deciding whether to prosecute or not the prosecutor has to take into account the gravity of the offense, see R. Griesbaum, %her Verfahrensgrundsatze des Tribunals, auch im Vergleich zum innerdeutschen Recht, und die praktische Arbeit des Tribunals', Hmanitires Vdkevecbt-In$mationsschnften (1997) 127-135 at 129. 43 See Bundesgerichtshof, BGHSt. 40, 236; and G. Heine, 'Taterschaft und Teilnahme in staatlichen Machtapparaten, NS- und DDR-Unrecht im Vergleich der Rechtsprechung', 55 Jtlristenpitmg (2000) 920. 42

Finnid Yearbook oflnternational LW(Vol. XII, 2001) Silze lege (scm$ta) principle.44 This finding, that the criminal behaviour cannot be

adequately labelled by attaching the suitable crime provision, should be (and in fact is) an incentive for reform.45But at the same time, it was clear from the start of the investigations that h s fact posed no insurmountable obstacle to prosecution in the Argentinean cases, since the 'ordinary' crime provisions available under existing German law appeared sufficient to cover the acts afffiated with the defendants, in particular the crimes against humanity, torture, and disappearances.46 Besides the international crime of genocide, the current investigations therefore refer to the 'ordmary' crimes of murder, hostage-taking, kidnapping, and assault. However, the key issue in the proceedings has been that of whether the German courts have the necessary jurisdiction to investigate and try members of the foreign mhtary for crimes against international law committed outside of Germany. Traditionally, German law has been relatively far-reaching in its scope of extraterritorial jurisdiction. The German Penal Code provides for extra-territorial jurisdiction under the passive and active personality principles, the protective principle, the universality principle, and the principle of representative administration of justice.47 While the initial complaints referred to the nationality of the victims and the principle of passive personality as the ground for the jurisdiction of the German courts, a complaint submitted in March 2001 explicitly made reference to the principle of universal jurisdiction.48 According to these principles, aliens may be punished for acts committed abroad harmful to nationals of the forum or to the world community as a whole.49 Though both principles are widely acknowledged, they have a certain delicacy in terms of their conformity with international law. The passive personality principle is relatively widespread in the See H. H. Jescheck and T. Weigend, Lebrbtvcb &.s St@ncbt, Al&meiner Teil (5th edn, Duncker & Humblot: Berlin, 1996) at 134. 45 See infra note 99 and accompanying text. 46 For the application of 'ordinary' crime provisions in 'international crime situations' see generally G. Werle, 'Volkerstrafrecht und geltendes deutsches Strafrecht', 55 Juristen@ung (2000) 755-760. 47 See paras 4-7 StGB. In a wider sense also the principle of objective territoriality ('effects principle', see The Case oftbe SS Lotm (France/Turkey), PCJI Series A, No. 10 (1927) 4, at 23) under paras 3 and 9 StGB provides for extra-territorial jurisdiction. 48 O n behalf of the Max-Planck Institut fiir auslindisches und internationales Strafrechts, K. Ambos, G. Ruegenberg and J. Woischnik presented a legal expertise for the Coalition, see K. Ambos, G. Ruegenberg and J.Woischnik, 'Straflosigkeit in Argentinien fiir wahrend der Militiirdiktatur (1976-1983) begangene Taten des "Verschwindenlassens"?, Rechtslage fiir Opfer mit deutscher und anderer Staatsangehorigkeit' in Et/ropaiscbe Gmndrecbte-Zeitschny?(1998) 468-479. 49 See for the passive personality principle, C. L. Blakesley, 'Extraterritorial Jurisdiction' in Bassiouni, International Ct;;mnal Law, sqra note 15, v01 11: Procedural and Enforcement Mechanisms, 33-105, at 67. For the universality principle, K. Randall, 'UniversalJurisdiction under International Law', 66 Texas Law Review (1988) 788, at 841; and T h e Princeton Principles on Universal Jurisdiction', <www.princeton.edu/-lapa/unive-jur.pdf> (visited 11 October 2001). 44

Prosecuting International Crimes in Domestic Cowts: A Look Back Ahead

293

continental law systems, but it is, as Brownlie points out, the 'least justifiable, as a general principle, of the various bases of jurisdiction7.50One reason for this is that it subjects persons to foreign criminal laws who might not have been aware that their victims were foreign citizens. Universal jurisdiction, on the other hand, although on the rise in connection with the development of an intemational system of criminal justice, is sensitive because the lack of any territorial or personal connection between the forum state and the criminal act necessarily (and intentionally) leads to the concurrence of several jurisdictions. Under intemational law, however, universal jurisdiction for certain crimes is widely accepted, with the most relevant examples in the present context being crimes against humanity, genocide, and torture.51 The following paragraphs discuss whether there is adequate evidence to assume jurisdiction under the passive personality or the universahty principles in the Argentinean cases.

Jurisdictionunder the Passive Personality Principle Under paragraph 7(1) of the Penal Code, German courts have jurisdiction over acts committed outside Germany against a German victim if the act is punishable in the place where it occurred.52 Homicide, unlawful detention, kidnapping, and assault are all crimes under Argentinean law.53 The fact that crimes cannot be prosecuted under Argentinean law due to the aforementioned amnesty legislation54 is not relevant in deciding if the acts are 'punishable' in the sense of paragraph 7(1). The first reason for this is that there is consensus that 'punishable' refers to the punishability of the act under substantive law only.55 Procedural or factual bars to prosecution are not relevant. The second reason is that a defense which contradicts international legal standards -as do the Argentinean amnesty laws, which intentionally grant immunity from charges of crimes against humanity56 - does not render a criminal

Brownlie, Principles ofPubdc Intemationalb (5th edn, Oxford, 1998) at 306. 51 See Principle 2 of 'The Princeton Principles on Universal Jurisdiction', <www.princeton.edu/-lapa/ univejur.pdf> (visited 11 October 2001); and Blakesley, 'Extraterritorial Jurisdiction', stcpra note 49, at 71. 52 Para. 7(1) reads as follows: 'Das deutsche Strafrecht gdt fiir Taten, die irn Ausland gegen einen Deutschen begangen werden, wenn die Tat am Tatoa mit Strafe bedroht ist oder der Tatoa keiner Strafgewalt unterliegt'. 53 For details see Arnbos, Ruegenberg, and Woischnik, 'Straflosigkeit in Argentinien', stcpra note 48, at 474. 54 See sqra note 33 and accompanying text. 55 See Bundesgerichtshof, BGHSt. 2, 160; and K. Lackner, 'S 7' in K. Lackner and K. Kuhl, Stra&ese~bucbmit Erhutemngen (23rd edn, Beck: Munchen, 1999) at 51, para. 2. 56 See K. Ambos, Str@os&keit von MenscbenrechtsverleQungen: Zur 5qbunidad' in siidamen'kanischen G n d m am volkerstr&ecbthber Sicbt (edition iuscrim: Freiburg, 1997) at 239. 50 I.

294

Finnish Yearbook OfIntemationalb (Vol.

XI& 2001)

act lawful and must be excluded from consideration when assessing the punishability of an act under paragraph 7(1).57 The critical issue in the Argentinean cases as far as the jurisdiction under paragraph 7 is concerned is the characterization of the victims as 'German'. In the usual understanding the meaning of 'German' in paragraph 7 is that an individual has German citizenship.58 Only a few of the victims were in fact German citizens. In those cases, the jurisdiction of the German courts under paragraph 7(1) is obvious. As mentioned earlier, however, the majority of the victims were of German orign, but not formally German citizens. Prima facie, the requirements of paragraph 7 appear not to have been met. To better understand the problem in the present cases, it is important to know some detds of German nationality law. Under paragraph 4(1) of the Nationahty Act:' the principle of ztts sdngztinis applies to the acquisition of German citizenship: If one parent is a German citizen, the child will acquire German citizenship at birth. Since the parents or grandparents of the victims were German, it appears that the victims themselves are (notwithstandmg their Argentinean nationality) also German citizens. Unfortunately, the situation is far more complicated. In several cases, the ancestors of the victims were Germans of Jewish faith who had to escape Germany during the Nazi era. Due to a Nazi law of 1941, they were deprived of their German citizenship. This law prescribed that 'a Jew loses his German nationality if he, at the time of the entry into force of this law, has his permanent residence outside Germany'." After 1945, it was acknowledged that this law was clearly contrary to fundamental principles of justice. The Parliamentary Council, which drafted the German post-war constitution, the Grundgesetz, was of the opinion that this injustice had to be rectified. After much dscussion a prescription was included in the constitution that gave the depatriated persons and their descendants the right to regain their German citizenship - but on application only.61 With the latter

57 See Bundesgerichtshof, BGHSt. 42, 279; and A. Eser, 'S 7' in A. Schonke and H. Schroder, Jtrafgesetabncb: Kommentar (26th edn, Beck: Miinchen, 2001) at 112, para. 9. 58 See G. Gribbohm, Vor S 3' in B. J5hnke et al. (eds), L.eip.@gerKommentar p m Jtrafgeset~b.wb(l l th edn, De Gruyter: Berlin, New York, 1997) at para. 331. 59 Para. 4(1) StAG reads as follows: 'Durch Geburt erwirbt ein Kind die deutsche Staatsangehorigkeit, wenn ein Elterntefi die deutsche Staatsangehorigkeitbesitzt'. 60 '[. . .] or if he takes permanent residence outside Germany after the entry into force of this law from the time on where he has taken permanent residence outside Germany.' Para. 2 Elfte Verordnung zum Reichsbiirgergesetz, 25 November 1941 (RGB1. I, 722) (translation FJ). 61 An application is not necessary, however, if the person is a permanent resident of Germany and therewith - expresses his will to be a German again. Aa. 116(2) of the Grundgesetz provides that: 'Friihere deutsche Staatsangehorige, denen zwischen dem 30. Januar 1933 und dem 8. Mai 1945 die Staatsangehorigkeit aus politischen, rassischen oder religiosen Griinden entzogen worden ist, und ihre Abkommlinge sind auf Antrag wieder einzubiirgern. Sie gelten als richt ausgebiirgert, sofern sie nach

Prosemting liztewzational Crimes in Domestic Cowts: A Look Back Ahead

295

requirement, the drafters of the constitution sought to ensure that German citizenship would not be forced on a victim of the Nazi regime. The intention was that the will of each victim to be a German or not should be respected.62 In 1968, the Federal Constitutional Court ruled that the persons affected by the Nazi law of 1941 had not lost their German nationality, since that law contradicted the fundamental principles of justice in such an evident and grave way that it could not be characterized as 'law'." At the same time, taking note of the constitutional prescription just mentioned, the court stated that these 'Germans' could not assert this right if citizenship had not been formally regranted to them.64 Thus, wlde they technically still held their German nationality, the persons affected by the Nazi law did not enjoy the rights and duties generally attached to citizenship unless they had applied for and had been formally regranted German citizenship.65 Though one could argue that ths concept was politically and historically adequate, and even welldevised, the consequences in the present case are at once bizarre and tragic: As none of the disappeared had actually regranted citizenship and only two had applied, the German courts lack jurisdiction under the passive personality principle as it is traditionally interpreted. Thus, the families of the victims have been deprived of their fundamental human rights twice within one century: Because their parents or grandparents were victims of crimes against humanity committed by Germany in the 1930s and '40s, the victims of crimes against humanity committed in Argentina in the 1970s and '80s are denied access to and protection from the German criminal justice system. Certainly, there are ways to avoid this 'side-effect' of an attempt to provide adequate relief and reparation to victims of the Nazi dictatorship. The meaning of 'German' in paragraph 7 could (and should) be re-construed by takmg into account the special circumstances of the persons affected by the Nazi depatriation laws, and their descendants could thus still receive the protection of the German criminal justice system under the passive personality principle. On the other hand, it is vahd to argue that, due to the dubious compatibility of the passive dem 8. Mai 1945 ihren Wohnsitz in Deutschland genommen und nicht einen entgegengesetzten Willen zum Ausdruck gebracht haben.' 62 See Bundesverfassungsgericht,BVerfGE 23,98 at 110. 63 See Bundesverfassungsgericht, BVerfGE 23,98 at 106 and BVerfGE 54,53 at 72. 64 See Bundesverfassungsgericht, BVerfGE 54,53 at 73. 65 See Bundesverfassungsgericht, BVerfGE 54, 53 at 70: 'Solange ein Verfolgter von der Moglichkeit, die deutsche Staatsangehorigkeit geltend zu machen, keinen Gebrauch macht, wird er von der Bundesrepublik Deutschland nicht als Deutscher betrachtet. Die Bundesrepublik Deutschland darf den Verfolgten nicht als deutschen Staatsangehorigen behandeln. Allerdings kann in diesem Fall auch der Betroffene sich gegeniiber der Bundesrepublik Deutschland auf die deutsche Staatsangehorigkeitnicht berufen. . . . Dass sich die durch Art. 116 Abs. 2 G G getroffene Regelung zur Wiedergutrnachung des durch nationalsozialistische Ausbiirgerungen zugefiigten Unrechts im Einzelfall fiir den Verfolgten nachteilig auswirken kann, ist nicht zu verkennen. Es ist die Folge der grundsatzlichen Entscheidung des Verfassungsgebers, die deutsche Staatsangehorgkeit nicht automatisch wiederaufleben zu lassen, dal3 dem Verfolgten die Last zufdt, sich entscheiden und seinen Willen bekunden zu miissen.'

296

Finnish Yearbook: ofInternational lcaw (Vol. X I ' , 200 l)

personality principle with the principles of international law in general, the range of applicabhy under paragraph 7(1) must be construed to be as restrictive as possible. In any case, the German courts have so far proven reluctant to test the possibility of an extensive interpretation of 'German' by requiring the formal link of citizenshp.

Jurisdiction under the Universality Principle The second possible ground for extra-territorial jurisdiction in the Argentinean cases is the universality principle. Under paragraph 6 of the Penal Code, German courts have extra-territorial jurisdiction over the crime of genocide and over acts subject to prosecution by the terms of an international treaty binding on Germany even when cornmitted abroad.66 There is agreement that such treaties include the Geneva Conventions of 194967 and the UN-Torture Convention.68 Under paragraph 6, German law applies even if the act does not constitute a crime under the law of the state where it has been committed. Initially, a major and seemingly insurmountable obstacle to the exercise of universal jurisdiction in the cases under discussion seemed to be created by the German courts themselves. In several decisions, out of the fear that 'pure' universality would infringe the sovereignty of other states affected by the crime, the Federal Supreme Court held that universal jurisdiction under paragraph 6 required an 'additional' link of the individual case to Germany that 'legitimizes the application of German criminal law'.@ Such a link could be shown, for example, by the fact that an offender had his permanent residence in Germany. None of the alleged perpetrators in the present cases held residency in Germany, or had even been in Germany after the complaints were submitted. The question of whether the German nationality or origin of the victims would satisfy

66 Paragraph 6 of Strafgesetzbuch penal Code] reads as follows: 'Das deutsche Strafrecht gdt weiter, unabhangig vom Recht des Tatorts, fir folgende Taten, die im Ausland begangen werden: 1. Volkermord (S 220(a)); [. . .] 9. Taten, die aufgrund eines fir die Bundesrepublik Deutschland verbindlichen zwischenstaatlichen Abkornmens auch dann zu verfolgen sind, wenn sie im Ausland begangen werden.' 67 See in particular the Convention Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, in force 21 October 1950,75 UnitedNations Treag Series 135, and the Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, in force 21 October 1950,75 United Nations Treaties Series 287. 68 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the GA Res. 39/46,10 December 1984, in force 26 June 1987, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984); (1984) 23 InternationalLegaiMateriah 1027 and (1985) 24 InternationalLegal Materiah 535. @See, e.g., Bundesgerichtshof, BGHSt 64, 64 at 66. For a thorough analysis, see Ambos and Wirth, 'Genocide and War Crimes', sqra note 24, at 778. For a critical discussion, see G. Werle, 'Anmerkung zum BGH', 54 Juristen~eit~ng (1999) 1181.

Prosecuting International Crimes in Domestic Co~rtr:A Laok Back Ahead

297

the requirement70 can be left open, since the court inchcated in a recent decision that it intends to do away with that requirement.71 Std, it remains to be established whether the human rights violations in Argentina amounted to a genocide or constituted war crimes or torture. Genocide The systematic extermination of Jews in Germany and the occupied territories during World War 11, the slaughter of the Tutsi population in Rwanda in the 1990s, or the massacres against the Armenians in Turkey during World War I are what one first thinks of as examples of genocides. It is certainly not the Argentina of the late 1970s and early '80s. It could be argued, however, that a total of up to 30,000 victims makes it legitimate to discuss genocide. But though it is true that genocides do typically result in a great number of victims, that is not always (and not necessarily) the case, since the essential feature of the 'crime of crimes' is not that it affects a large number of inchviduals, but that it is directed against the existence of a certain group.72 It is therefore necessary to determine whether the victims of the Argentinean repressors were persecuted as members of a specific group, and if such a group is protected under the genocide provision. The following section discusses two arguments: First, if there is evidence that a genocide was conducted against a 'political group', and second, if genocide was conducted against a 'national group'. The repression of the junta was hected against a minority of persons who are best characterized by their political dissidence from the r u h g system.73 However, the 'politicide' argument seems to fail when one examines the enumeration of protected groups in paragraph 220(a) of the Penal Code, paralleling the definition in the Genocide Convention.74 In fact, political groups have been intentionally excluded from the list of Article 2 of the Genocide Convention, and attempts to enlarge the definition have so far faded.75 The rationale behind the restriction to See on the one hand Bundesgerichtshof, Netle Zeitscbnftfur Strajfirecbt (1999) 236 (the fact that the victim is a German does not meet the requirement), on the other hand K. Ambos, 'Anmerkung m m BGH', Neue Zeitscbnft fur Strajfirecbt (1999) 404-406 at 406 (the fact that the victim is a German constitutes a legitimizing link). 71 See Bundesgerichtshof,Netle Jtln'stiscbe Wocbenscbnft (2001) 2728. 72 See Prosemtor v. Akqestl, Case No. ICTR-96-4-T, ICTR Trial Chamber, Judgment (2 September 1g%), para. 521; and D.D. Ntanda Nsereko, 'Genocide: A Crime Against Mankind', in McDonald and Swaak-Goldman, Substantive and ProcedtlralAspech-, szlpra note 7, v01 I, 113-140 at 113. 73 Stiil, this is a very rough characterization. As a matter of fact, the 'Doctrine of national security' targeted thousands of individuals who were not politically involved at aU. 74 Convention on the Prevention and Suppression of the Crime of Genocide, Paris, 9 December 1948, 78 United Nations Treag Series 277. However, there are examples of national genocide legislation which departs from the Convention's definition by explicitly providing for the protection of political groups, see, e.g., Art. 118 of the Polish Penal Code and Aa. 281 of the Ethiopian Penal Code. 75 For attempts at the Rome Conference, see W.A. Schabas, 'Article 6', in Triffterer, Commentay on the Rome Stattlte, szlpra note 11,107-116 at 110 para. 6. 70

Finnish Yearbook ofInternational ldw v o l . X71,200 l ) racial, ethnic, religious, and national groups is that, in the opinion of the drafters, those groups are characterized by homogeneity, stability and tradition, whereas membership in a political group is considered a matter of indwidual choice.76 From that perspective, any attempt to extend the crime of genocide to the destruction of political groups appears to be doomed from the start. On the other hand, if one widens the perspective beyond the scope of the conventional genocide definition and turns to the crime of genocide as it has developed under customary international law, there still may be a point in the 'politicide' argument. The first requirement would then, of course, be that the term 'genocide' in paragraph 6 refers to the definition under customary intemational law rather than to the one in paragraph 220(a). A major obstacle to that approach, however, is the wording in paragraph 6 itself. Since paragraph 6 explicitly refers to the genocide provision in paragraph 220(a), and even mentions t h s provision in brackets27 there is a strong reason to believe that the meaning of 'genocide' in both sections must be interpreted identically. Nonetheless, in favour of an 'autonomous' interpretation of 'genocide' in paragraph 6, it could be argued that the intention of the law-makers was to stretch the scope of extra-territorial jurisdiction as far as possible without violating international law. If the scope of criminal behaviour is extended withtn the standard of (customary) international law, the extension of the scope of jurisdiction would automatically follow. Such a dynamic approach may appear problematic from a rule-of-law perspective, but is not unfamiliar, as can be seen when paragraph 6 is further discussed in the following section.78 Furthermore, a systematic interpretation of paragraph 6 must take into account the fact that the German constitution highly values international law and customary intemational law in particulaY.9 But even if one were to follow the argument so far, it stdl remains to be established that, under customary international law, the traditional dehnition of genocide has been enlarged to include the protection of political groups.80 Such a move is unlikely, as it has not yet been shown that there exist sufficient indicators in state practice to argue that the definition of the crime of genocide under customary international law covers the

See W.A. Schabas, Genocide in International Law: The C r i m of C7i;mes (Cambridge University Press, 2000) at 134. 77 See szpa note 66. 78 See infra notes 88-93 and accompanying text. 79 Under Art. 25 of the Gmndgesetz the rules of customary international law are part of the German law. 80 In favour of inclusion B. Van Schaack, 'The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot', 106 Yale Law Journal (1997) 2259, at 2280. It appears however, that the necessary distinction between the prohibition against committing genocide under customary international law (which might well include the protection of political groups) and the crime of genocide under customary international law is not adequately reflected in this contribution. 76

Prosectrting Intemtional Cr;imes in Domestic Cozirts:A Look Back Ahead

299

protection of political groups - in particular when the ICC Statute, adopted by a conference of more than 120 states, gives clear indication to the contrary.81 In contrast to political groups, national groups are clearly protected under the genocide definitions. Traditionally, 'national' in the genocide defifiition is understood as referring to the citizenshp of the members of the group. A c c o r b g to the benchmark decision of the trial chamber of the International Criminal Tribunal for Rwanda against Jean-Paul Akayesu, the term 'national group' refers to a 'collection of people who are perceived to share a legal bond based on common citizenshipY.82T h s (objective) approach of referring to the citizenship of the victims does not support the view that the Argentinean repression of late 1970s and early '80s resulted in a genocide. The vast majority of the victims were Argentinean citizens, as were the perpetrators. As far as the few German, Italian and French victims are concerned, it is obvious that they were not persecuted because of their respective nationalities. Thus the 'national group' argument appears to be another dead end. However, the concept of a 'national group' as it is traditionally understood for the crime of genocide has been criticized for being too narrow.83 There are two alternative approaches to what constitutes a 'national group', both of whch support the argument that a genocide was committed in Argentina. The first is an argument put forward by a Spanish court in the cases of the Argentinean and Chilean suppressions.84 In the opinion of the Spanish court, the 'national group' requirement must be interpreted extensively. In essence, the judges found that the group which the repressors in Argentina and Chile attempted to e h a t e was one whose views were inconsistent with what the military leadership saw as the necessary 'new national and social order'. The term 'national group', the court concluded, 'cannot mean a group formed by people who belong to the same nation, but instead a national human group, a distinct human group, characterized by ' 8 Prosemtor v. Krstic, Case No. IT-98-33-T, ICTY Trial Chamber, Judgment (2 August 2001), para. 541 correctly held, that the ICC Statute is a 'useful key to the opinio juris of the States'. O n the other hand Art. 10 of the ICC Statute provides that nothing in the Statute should be interpreted as limiting any existing or developing rule of (customary) international law. a2 Prosemtor v. A d g e m (ICTR), sqra note 72, para. 511. 83 See Prosendor v. Jelisic, Case No. IT-95-10, ICTY Trial Chamber, Judgment (14 December 1999), para. 70: 'Although the objective determination of a religious group still remains possible, to attempt to define a national, ethnical or racial group today using objective scientifically irreproachable criteria would be a perilous exercise. It is the stigmatisation of a group as a distinct national. . . unit by the community which allows it to be determined whether a targeted population constitutes a national . . . group in the eyes of the alleged perpetrators'. See also Prosemtor v. Krstic (ICTY), sqbra note 81, para. 556: 'To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and the purpose of the [Genocide] Convention.' See further W.A. Schabas, Genon'ak in International Law, supra note 76, at 109 and 115; and E. Fronza 'Genocide in the Rome Statute' in F. Lattanzi and W.A. Schabas (eds), Essgs on the Rome Stattlte oftbe International C7;;mnd Cozlrt (Sirente: Ripa Fagnano Alto, 1999), v01 I, 105-138 at 134. 84 See Wilson, Trosecuting Pinochet', sqra note 7, at 959.

Finnish Yearbook ofInternational Law (I/ol. XII, 200 l )

something, integrated into a larger collectivity', includmg 'those who did not fit into the project of national reorganization7.85Taking h s approach, nearly any group of people could constitute a national group. The second approach, as taken in several decisions of the International Criminal Tribunal for the former Yugoslavia, refers to the determination of groups in a more general way.8-y applying a subjective approach, the trial chamber of the tribunal reasoned that a 'group may be stigmatized by way of positive or negative criteria'. In the words of the Tribunal, a positive approach would: [. . .] consist of the perpetrators of the crime &stinguishing a group by characteristics which they deem to be particular to a national, ethnic or religious group. A "negative approach" would consist of identifjang individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and whlch to them displays specific national, ethnic, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.87

This approach is convincing because it refers to the nature of a group as a social construct and takes the perceptions of the victims and the perpetrators into account. Applied to the Argentinean repression, this argument gves reason to assume that a genocide did occur. Who belonged to the Argentinean nation was in fact established by the military. In the words of the junta, the repression was directed against 'a minority we do not consider Argentinean'. The Trocess of National Reorganization' was directed towards achieving a new order in which certain people did not conform. The idea that the perpetrators' exclusion of the victims from the Argentinean nation qualifies the group of victims as a national group appears compelling. However, both challenges to the traditional concept of 'national groups' -the extensive interpretation as shown by the Spanish C O U ~as well as the 'subjective-negative approach' applied by the International Criminal Tribunal for the Former Yugoslavia - have the disadvantage of blurring the dfferent concepts of crimes under international law, particularly that of the distinction between genocide and crimes against humanity. To apply the crime of genocide to a crimes against humanity situation by redefining certain elements of the latter's defulition might destroy the specific content of the crime of genocide. Auto de la Sala de 10 Penal de la Audiencia Nacional confirmando la jurisdicci6n de Espana para conocer de 10s crimenes de genocidio y terrorism0 cometidos durante la dictatura argentina, 4 October 1998, <www.derechos.org/nizkor/arg/espana/audi.html (visited 11 October 2001). 86 See Prosemtor v. Jeksic (ICTY), strpra note 83, para. 71; and Prosemtor v. Krdc (ICTY), strpra note 81, para. 557. See also Prosemtor v. Rz/nd@ndana-Kazyshema, Case No. ICTR-95-1, ICTR Trial Chamber, Judgment (21 May 1999), para. 98 (departing from the holding in Akayesu). 87 Proseador V. Jeksic (ICTY), sttpra note 83, para. 71. 85

Prosemting Intemtional Cm'mes in Domestic C0mt.r:A Look Back Ahead

30 1

War and Torture Under paragraph 6 of the Penal Code, German courts have jurisdction over acts that are required to be prosecuted by the terms of an international treaty binding on Germany.88 This provision gves German courts extra-territorial jurisdiction for certain war crimes, in particular for 'grave breaches' of the Geneva Conventions, such as wilful killing, torture, or inhumane treatment of civilians or prisoners of war.87 With respect to the present cases there are two problems: First, the grave breaches provisions explicitly apply only to international conflicts.90 Certainly, the repressive system under discussion cannot be regarded as a d t a r y conflict between two or more states. Whether and to what degree crimes committed in civil wars justify the exercise of universal jurisdiction under paragraph 6 is still a matter of debate." The second problem, however, poses a far greater obstacle to jurisdiction under paragraph 6 in connection with the Geneva Conventions: War crimes can only be committed during war, be it international or non-international. An undsputed precondtion of the applicability of the Conventions, therefore, is the existence of an 'armed conflict7.92 Even a civil war must display a certain extent, intensity and quality of fighting;93 nothing of the sort can be argued in the case of the repressive Argentinean system." The situation in Argentina could be characterized as a systematic repression by the state, that in single cases provoked counter-violence against the oppressing state, but it surely was not a war in the technical sense of the word. In contrast, there can be no doubt that the rmlitary junta systematically committed acts of torture. ljke the Geneva Conventions, the UN Torture Convention of 1984 obliges parties to punish breaches of its terms even if committed abroad.95 However, the Convention entered into force in 1987 for Argentina and in 1990 for Gemanyg" thus years after the crimes were committed. Since the prohibition of retroactive punishment under Article 103(2) of the German Constitution applies to the provisions regulating the applicability of

88 See stcpra note

66. See, e.g., Art. 147 of the (Geneva) Convention Relative to the Protection of Civilian Persons in Time of War, and Art. 130 of the (Geneva) Convention Relative to the Treatment of Prisoners of War, both stcpra note 67. 90 See (common) Art. 2(1) of the Geneva Conventions, s q a note 67. 91 See the discussion by the Bundesgerichtshof, Netle Jtln'stische Wochenschrcft(2001) 2728. g2 See (common) Art. 2(1) of the Geneva Conventions, stcpra note 67. 93 See C. Greenwood, 'Scope of Application of Humanitarian Law' in D. Fleck (ed.), The Handbook of Hzmanitarian LWin Armed Conzcts (Oxford University Press, 1995) 39-63 at 47. 94 See also re Videla, Agosti, Mmera et a4 stcpra note 32 at 403; and Atnbos, Ruegenberg and Woischnik, 'Straflosigkeit in Argentinien', stcpra note 48, at 473. 95 Art. 5 of the Torture Convention, szpa note 68. 96 See Griitzner and Potz, Internationaler Rechtshi&verkebr, stcpra note 42, vol. V, I11 F 4, at 1. 89

302

Finnish Yearbook ofInternational Lazv (Vol. XII, 200 l)

German law," paragraph 6 in connection with the Torture Convention does not provide for German jurisdiction in the Argentinean cases.

Lessons to Learn and Other Concluding Remarks Having analyzed the prosecution of the members of the Argentinean junta and other high ranking military commanders in Germany, one may conclude that the chances of prosecuting 'pre-Rome' crimes are not very good: Indeed, looking 'back ahead' is not encouraging. Though unpleasant, it may be necessary to accept that the 'pre-Rome' penal law has only limited capacity to effectively contribute to the international system of criminal justice. The efforts to prosecute those responsible for the 'dsappearances' during the Argentinean 'dirty war', as exemplified by the problem of exm-territorial jurisdiction of German courts, demonstrate the legal acrobatics' often necessary to legally justify the prosecution of 'pre-Rome' crimes. Because German law still lacks a specific prescription for crimes agamst humanity, ordinary crime provisions and the crime of genocide have to be applied to a 'crimes against humanity situation'. This can be no more than a temporary solution. In general, the positive and supportive attitude towards international criminal justice, expressed on several occasions by the German government, parliament and judciary, is not reflected in existing German law. Thus the aptness of Van den Wyngaert's remark can be seen: Even in states where the political willingness to investigate and prosecute persons committing crimes against international law exists, efforts to bring such criminals to justice often fad for purely juridical reasons. Looking further ahead, one may note that the practical application of the 'preRome' law on a crimes against humanity situation raises further critical points in connection with the prosecution of future crimes in domestic courts. First, the chscrepancy between the political will to prosecute and the legal ability to do so indicates the need for a substantial reform of domestic penal law. As in many other countries,98 such reform legislation has been prepared in Germany.99 From that

See Gribbohm, 'Vor 3', szlpra note 58, para. 148; but see K. Ambos, 'Der Fall Pinochet und das anwendbare Recht', 54 J~risten~eitung (1999) 16. 98 For an overview see Kress and Lattanzi, The Rome Stattlte, qbra note 17, and the compilation of draft legislation at <www.legal.coe.int/criminal/icc/docs> (visited 11 October 2001). 99 See the (draft) 'Code of Crimes Against International Law' <www.legal.coe.int/criminal/icc/docs/ consult~ICC(2001)/consultICC(2001)34E.pd (visited 11 October 2001). Cornerstones of the draft Code are the prescription of crimes against humanity, war crimes, and genocide in domestic law, and the establishment of 'pure' universal jurisdiction, explicitly ruling out the 'additional link' requirement. After this paper was completed, the Code entered intno force on 30 June 2002. For the text, see <www.iuscrim.mpg.de/forsch/legaltext/vstgbleng.pd (visited 13 November 2002). For details see 97

Prosecuting International Cm'mes in Domestic CourLs: A laok Back Ahead

303

perspective, the ICC Statute and the (rare) domestic experiences with the prosecution of 'pre-Rome' crimes are pacemakers for national law reforrn.lo0 Induced by this 'internationalization' of domestic penal law, the second point to be mentioned here concerns the method of finding the law.101 The application and interpretation of domestic law provisions, even of 'pre-Rome' provisions, are increasingly determined by prescriptions and case law from other sovereigns.'Oz As illustrated above, it may be useful, and even necessary, to apply legal standards in a domestic context that were developed by international or foreign institutions.103 The practice of the ad hoc tribunals shows that d e a h g with and solving the 'clash of legal cultures' needs preparation and caution, and gives new emphasis to the comparison of laws.104 So far, &us seems to be more a matter of a practical experience than of a systematic deduction of clear standards for 'transnational juridical interacti0n'.~05 As of August 2001, most of the Argentinean cases are stdl pending. The complaints on the counts of genocide were finally dismissed by the Attorney General in July 2001. Attempts to dismiss the other cases due to lack of jurisdiction have been frustrated by the continuing pressure from the complainants and the coalition. Several witnesses, in particular family members of the victims, have been interrogated in Nuremberg and in the German embassy in Buenos Aires. All confirmed the allegations of the complainants. In one case, an international arrest warrant was issued by a German court.lO6 The Argentinean government still refuses G. Werle and F. Jessberger, 'International Criminal Justice is Coming Home: The New German Code of Crimes against International Law', 13 CriminalLazv F o m (2002, forthcoming). '00 See also J. 1. Charney, 'International Criminal Law and the Role of Domestic Courts', 95 American Journal of International Law (2001) 120 at 123 ('the ICC having served first as a catalyst, and then as a monitoring and supporting institution'). lol See generally C. Kress, 'Zur Methode der Rechtsfrndung im Allgemeinen Teil des Volkerstrafrechts', 111 Zeztschrzzj2r die Gesamte Jtrafrhtswz'ssenschaft (1999) 597-623. 102 A good example is the reference made to international criminal law in two decisions of the German Federal Constitutional Court and the Federal Supreme Court: See Bundesverfassungsgericht, Nene Zeitsch7zftj2r Strafrecbt (2001) 240 (arguing that the interpretation of German law that is transposited international law has to take into account the content of the relevant provision under international law); Bundesgerichtshof, Neae Juristische Wochenschnft (2001) 2728 (referring to the case law of the ICTY for interpreting the Geneva Conventions). '03 And vice versa. Reference made by international tribunals to national statutory and case law is much more common; see e.g. Prosect/tor v. Krstic (ICTY), szpa note 81, para. 579 (citing the decision of the Bundesverfassungsgericht,sqra note 102). 104 See C.-F. Stuckenberg, 'Zur Konkurrenz irn US-amerikanischen Recht', 113 Zeitschnftflr die Gesamte Jtrafrecbtswzisenshaft (2001) 146-179. 105 For an excellent analysis see A.-M. Slaughter, 'A Typology of Transjudicial Communication' in T.M. Franck and G.H. Fox (eds), 'International Law Decisions in National CoartS (Transnational Publishers: Irvington-on-Hudson, 1996) 37-71. lo6 The arrest warrant has been issued against the military commander Suarez Mason in connection with the disappearance of Elisabeth Klisemann, see die TagesxeZtung,13July 2001, at 7.

304

Fimisb Yearbook ofliztematiotzalLaw (VbL XII, 200 l )

to cooperate. Applications for judicial assistance issued by the German prosecutors to the Argentinean authorities, applying inter aka for the interrogation of the alleged offenders, were rejected. The Argentinean government referred to the principle of territorial jurisdiction and argued that German courts would not be competent to hear the cases. After all, one has to a h t : It is unlikely that the cases will result in an indctment or a conviction, at least for the simple reason that German law does not allow for trials in absentia.107 However, it would be wrong to conclude that the investigations, interrogations, and inquiries have been in vain. The creation of a global network of 'symbolic' criminal proceedings, as exemplified in the Pinocbet case,l08 can itself be counted as a success: Perpetrators might still hide in their home countries, but at least they will no longer be able to run. Perhaps someday Augusto Pinochet, Slobodan Milose~ic,~O~ and Jean Kambandallo wdl be remembered as ushering in a new era - an era in which the impunity enjoyed by such dictators as Videla, Pol Pot, and Mengistu was finally ended.

See para. 230(1) StPO. See sqra note 7. 109 See Prosecutor v. Milosevic, Case No. IT-99-37-1, Office of the Prosecutor of the ICTY, Indictment (29 June 2001) - Kosovo; and Prosemtor v. Milosevic, Case No. IT-01-50-1, Office of the Prosecutor of the ICTY, Indictment (8 October 2001) - Croatia. See also R. Wedgwood, 'Former Yugoslav President Slobodan Milosevic To Be Tried in The Hague for Crimes Against Humanity and War Crimes Allegedly Committed in Kosovo', July 2001, <www.asil.org/insights/ins~h76.htm> (visited 15 October 2001). 110 See Prosecutor v. Kamband?, Case No. ICTR-97-23-S, ICTR Trial Chamber, Judgment (4 September 1998). The appeal was dismissed in October 2000. 107 '08

Head-of-State Immunity v. Individual Criminal Responsibility under International Law Virpi Koivu*

Introduction On 23 October 1998, the former head of state of Chde, General Augusto Pinochet, was arrested in London upon an extradition request made by Spain to the British authorities.' On 27 May 1999, the International Criminal Tribunal for the former Yugoslavia announced the indctment of and issued a warrant of arrest against Slobodan Milosevic, the then President of the Federal Republic of Yugoslavia.2 At fust sight, both cases seem stdmgly smilar in that both accused have been heads of their respective states and are allegedly gclllty of gross violations of human rights. Despite the similarities, the two cases differ from each other especially in two respects. Firstly, in the Pinochet case, the extradition request was made and he was arrested by the authorities of a third state, i.e. authorities other than those of the territorial state in which the alleged offences had occurred, whereas in the Mzlosevic case the indictment was issued by an international tribunal. Secondly, Pinochet was no longer a sitting head of state at the time of his arrest, whereas Milosevic was still in power when the warrant of arrest was issued against him. The possibihty of prosecuting Pinochet in a thud state was justified, inter alia, by the fact that he was MA, MSc. Official at the Finnish Ministry for Foreign Affairs. The article is based on an academic thesis (MSc.), and any views included therein are expressed in the author's personal capacity and do not necessarily reflect those of the Ministry for Foreign Affairs. 1 Regina v. Bade and the Commissioner of Pohce for the Metropohs and others EX Parte Pinochet and Regina v. Evans and another and the Commissioner of Pohce for the Metropohs and others EX Patite Pinochet. House of Lords, Session 1998-99, Judgments of 25 November 1998 [On Appeal from a Divisional Court of the Queen's Bench Division, reprinted in 37 International Legal Maten'ak (1998) 13021, 15 January 1999 [Opinions of the Lords of Appeal for Judgment in the Cause in re Pinochet, reprinted in 38 International Legal Maten'ak (1999) 4301, and 24 March 1999 [On Appeal from a Divisional Court of the Queen's Bench Division, reprinted in 38 InternationalLgalMateriah (1999) 5811. 2 ICTY, Press Release, 27 May 1999, The Hague, JL/PIU/403-E. *

306

Finnish Yearbook OfIntemational Lazv (Vol. XII, 2001)

no longer in power and former heads of state enjoyed no immunity. But that does not apply in the MiIosevic case. How is this possible? Shouldn't sitting heads of state enjoy absolute immunity? Could even a third state prosecute sitting heads of state?

Universal jurisdiction In the case of prosecution in third states, one applicable basis for jurisdiction is the principle of universality.3 Universal jurisdction stm'co sensu means that a state is entitled to prosecute perpetrators of certain serious crimes irrespective of the locm dehcti and irrespective of the nationality of the victim or the perpetrator.4 The extradition case concerning Augusto Pinochet made the question of universal jurisdiction subject to a lively debate both at the national and international level. The underlying question was whether a third state had the right to prosecute aliens when the offences had not taken place in that state. ~rosec&on under the principle of universal jurisdiction requires a legal basis in international law - preferably in treaty law, although an increasing number of international lawyers are wdlmg to r e c o p s e the right of states to also prosecute under customary international law. Certain international conventions contain a general obligation to prosecute or extradite perpetrators of gross violations of human rights, i.e. the so-called principle aut dedere aut punire. However, as Bassiouni points out, not all the relevant conventions contain such explicit provisions. Nor is the wording identical in the various conventions.5 The clearest kinds of provisions specify the obligation of states to prosecute and punish the perpetrators of gross violations of human rights: such as the provisions of the Geneva Conventions7 and the Convention against For the different bases of jurisdiction, see the name of C. M. Bassiouni, Grim Against H m a n i p in International Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) at 227, and R.H. Reiss, 'The Extradition of John Demjanjuk: War Crimes, Universality of Jurisdiction, and the Political Offense Doctrine', 20 Cornell InternationalLawJournal (1987) 281-315 at 301. But see also M. Tupamaki, Valtion rikosoikeudellisen toimivalhn trlottuvuus kansainvilisessa oikeudessa (Publications of the Finnish Branch of the International Law Association: Helsinki, 1999) at 24-27 and 140-141, G. Gilbert, 'Crimes Sans Frontiires: Jurisdictional Problems in English Law', 63 Britisb Yearbook ofInternationalLaw (1992) 415443 at 416-424, and C. Van den Wyngaert, 'Double Criminality as a Requirement to Jurisdiction' in N. Jareborg (ed.), Double Criminalip. Studes in International Criminal Law (Juridiska foreningen i Uppsala, 1989) 43-56 at 46-50, whose classifications are somewhat different. 4 See, e.g., Bassiouni, Crimes Against Humanip, szpa note 3, at 227-228. 5 M.C. Bassiouni, 'The Penal Characteristics of Conventional International Criminal Law', 15 Case WesternReserveJoumal ofInternationalLaw (1983) 27-37 at 30. 6 N. Roht-Arriaza, 'State Responsibility to Investgate and Prosecute Grave Human Rights Violations in International Law', 78 CaZ$oornia Lazv Review (1990) 451-513 at 462. 7 Articles 49,50,129 and 146 of the First, Second, Third and Fourth Geneva Conventions, respectively (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the 3

Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the Torture Convention)g which provide for universal jurisdiction over specific offences9 Where there are applicable treaty provisions, the legal basis for universal jurisdiction is clear. In the Pinochet case, the legal basis for Spain's request for extradition was the Torture Convention whch provides for a general obligation to extradite or prosecute. Article 7(1) of the Convention reads as follows:

-

The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite hun, submit the case to its competent authorities for the purpose of prosecution.

Article 7, which reiterates the afore-mentioned principle atit dedere azttpztnire, must be read together with Article 5. As far as universal jurisdiction is concerned, Article 5 has given rise to different interpretations.10 Article 5(1) provides for the exercise of jurisdiction, inter alia, on the basis of the principle of passive nationality, which was in fact the applicable basis for jurisdiction in the Pinochet case. However, Article 5(2) provides a basis for the exercise of jurisdiction on the ground of the presence of the alleged offender in the territory of the State Party in question. Article 5(2) reads as follows: Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Artide.

In my opinion, Article 7(1), read together with Article 5(2), would thus seem to provide for universal jurismction, which is also the interpretation of McKay and

Field, 75 United Nations Treag Series 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 United Nations Treag Smes 85; Convention relative to the Treatment of Prisoners of War, 75 United Nations Treag Series 135; Convention relative to the Protection of Civilian Persons in Time of War, 75 United Natzons Treaty Series 287, all done in Geneva, on 12 August 1949, in force 21 October 1950), as well as Article 86(1) of Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, in force 7 December 1978, UN Doc. A/32/144 (15 August 1977). 8 10 December 1984, in force 26 June 1987, GA Res. 39/46, UN Doc. A/39/51 (1984), reprinted in 23 InternationalLgaIMateriah(1984) 1027, modified in 24 InternationalLgaIMaten'ah (1985) 535. 9 Bassiouni, Crimes Against Humanig, stgra note 3, at 234. 10 See e.g. Tupamaki, Valtion n'kosoikeudellisen toimivalan E/lottuvuus,stgra note 3, at 383.

Finnish Yearbook 0fIntemationalL.u~(Vol. XII, 2001)

Bassiouni.1~Whatever the name given to the principle enshrined in Articles 7(1) and 5(2) is, the outcome is the same: the state is under an obligation to allow for the exercise of universal jurisdiction and prosecute the criminal if it does not extradite him to a country having jurisdiction over the crime. In conclusion, there is a legal basis in international law for the exercise of jurisdiction, both under the principle of passive nationality - as in the Pinochet case - and that of universal jurisdiction, over the crime of torture. Even if a clear basis for universal juris&ction over gross violations of human rights may be derived from an international convention, such as the Torture Convention, it may be difficult for national courts to assert jurisdiction. This is even more so where the accused is a head of state, as such cases involve an interplay of law and politics and the political questions may often be complicated and make courts reluctant to address them. The defence and even the court examining the case may use different arguments in order to avoid prosecution. Such arguments include, inter alia, the principle of foreign sovereign immunity or state immunity, the act of state doctrine,l2fom non conveniens, the problem of concurrent jurisdiction, the requirement of double crirninality and the problem of evidence. As regards heads of state, the first and most effective argument would most likely be that they enjoy immunity before courts of third states, which is a jurisdictional bar for the courts. Should that argument fail, one would logically predict that the defence of a head of state would next invoke the act of state doctrine. Both the head-of-state immunity - by reference to state immunity - and the act of state doctrine were in fact invoked in the Pinochet case.13 The act of state doctrine and the principle of state immunity are closely linked with each other in that they both represent the need to respect the sovereignty of foreign states. They are nevertheless different doctrines. The act of state doctrine is not a jurisdictional 11 See F. McKay, 'Universal jurisdiction in Europe: Criminal prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide', available at <www.redress.org> (accessed 19 October 2002); and Bassiouni, Crimes Against H m a n i p , sqra note 3, at 234 ('can be interpreted as conferring universal jurisdiction'). See also the House of Lords Judgment of 24 March 1999, sqra note 1; and S. R. Ratner and J. S. Abrams, Accotmtah&yfor H m a n Rzghts Atmn'ties in Intemationalhw: beyond the Nzremberg legay (Clarendon Press: Oxford, 1997) at 144-145. 12 The act of state doctrine is sometimes referred to as the 'political question doctrine'. See, e.g., B. Conforti, Wational Courts and International Human Rights' in B. Conforti and F. Francioni (eds.), Enforbng International Human Rights in Domestic Cozrt~(Martinus Nijhoff Publishers: The Hague, 1997) at 4-6. Some of the Lords in the Pinochet judgment of 25 November 1998, sqra note 1, preferred to use the concept of 'non-justiciability' instead of that of the 'act of state doctrine' (e.g., Lord Lloyd of Berwick). These concepts may be used interchangeably. 13 See in particular the Judgment of 25 November 1998 which focused on the quality of the criminal acts, whereas the Judgment of 15 January 1999 (as well as the dissenting Lords in the first Judgment) discussed acts of state more in the light of the question of relationship between the Torture Convention and head-of-state immunity, sqra note 1.

Head-+State Immunity v. IndiuiduaI CbminaI Responsibility

309

limit on the courts. It reflects the concern that the courts might be interfering in the conduct of foreign policy by the executive branch of the government. It is a principle that the courts apply in deciding cases within their jurisdction. Foreign sovereign immunity is a principle of international law, and can be invoked by the states themselves as defendants. Unlike the act of state doctrine, it is a jurisdictional rule prohibiting the courts of one country from assuming jurisdction over a foreign state and its property and assets situated in the territory of the forum state. If a court lacks jurisdction because of immunity, for example, the act of state doctrine never comes into play.14

Head-of-state immunity The question of whether states enjoy immunity from the jurisdiction of foreign courts arises when a representative of the state is made party to the suit. This question has recently been addressed by the International Court of Justice in the Arrest Warrant case,l5 in respect of Ministers for Foreign Affaik As regards head-ofstate immunity, there are dfferent rules that may be applied. A c c o r h g to Brohmer, head-of-state immunity is related to state immunity if the head of state acts in his official capacity. In such cases the rules concerning state immunity apply. This nevertheless raises the question of whether there is a joint liabhty of the state and the head of state. Brohmer is of the opinion that the immunity of the head of state cannot go hrther than that of the state, if joint liability could be considered. Headof-state immunity is also closely related to dplomatic immunity in cases where the head of state acts in his capacity as a private indvidual. Rules on dplomatic immunity16 apply for example when a head of state is officially travelling in another country.17 However, it is worth noting that the provisions of the Vienna Conventions do not explicitly apply to heads of state, although they do provide some useful gudance in respect of the immunity of heads of state.

l 4 See Sidetman a% Blake v. At-gentina, infra note 61. See also R. Donner, 'Some Recent Caselaw Concerning State Immunity Before National Courts', 5 The Finnish Yearbook of International Law (Ius Gentium Association: Helsinki, 1994) 388-428, at 389. J . Brohmer, State Immunity and the Violation of H m a n Rights (Martinus Nijhoff Publishers: The Hague, 1997) at 41-44. 15 Case Concerning the Arrest Warrant of 1 I April 2000 (Democratic Republic of the Congo v. Be&wn), the Judgment of 14 February 2002 is available at <www.icj-cij.org> (accessed 16 October 2002). ' 6 The Vienna Convention on Diplomatic Relations, 18 April 1961, in force 24 April 1964, 500 United Nations Treaty Series 95, and the Vienna Convention on Consular Relations, 24 April 1963, in force 19 March 1967, 596 United Nations Treuty Serief 261, constitute the legal basis for diplomatic and consular privileges and immunities. l 7 Brohmer, State Imm~nity,stlpra note 14, at 29-30.

310

Finnish Yearbook oflntemationaLlcaw (Vol. XI2; 2007)

Heads of state still in power Under present-day customary international law, heads of state are entitled to the same immunity as the state itself and diplomatic agents. The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state. Such immunity is said to be granted ratione personae.18 There is a great number of cases where the courts b v e taken a position in respect of state immunity, but not much to support the principles concerning the immunity of heads of state. Furthermore, Bassiouni points out that there is scarcely any court practice removing the immunity of heads of state, despite the fact that several international instruments do SO? In the case of Tdfontant v. Am'stide, the US District Court for the Eastern District of New York followed the policy of the State Department which had continued to r e c o p s e the defendant as the President of Haiti despite the fact that he had been overthrown and sent into exile in the United States. The Court found that it was bound by this recognition and concluded that the defendant qualified for immunity as a head of state despite having been in exile for more than two years before the decision.20 Before the Ldfontdnt case, the case of United States v. Noriega was considered to be the only case where a head of state had been brought to trial in a US court whde still in power.21However, following the logm of the case law in the United States, Noriega was not considered a head of state." The district court had rejected Noriega's head-of-state immunity claim because the United States had never recognized him as Panama's legitimate, constitutional ruler. The Court of Appeals pointed out that [. . .] the Executive Branch had manifested its clear sentiment that Noriega should be denied head-of-state immunity. Noriega had cited no authority that would empower a court to grant head-of-state immunity under those circumstances. Moreover, given that Noriega had never served as the constitutional leader of Panama, Panama had not sought immunity for Noriega, and the charged acts related to Noriega's private pursuit of personal

See, e.g., Lord Browne-Wilkinson in the Judgment of 24 March 1999, sztpra note 1, at 592. C. M. Bassiouni, Crimes Against H~manigin International Criminal Law (Martinus Nijhoff Publishers: Dordrecht, 1992) at 467. 20 LafOntant v. A d & , 844 F.Supp. 128,62 USLW 2478 (E.D.N.Y 1994). 21 See Bassiouni, Crimes Axainst Hmanig, sztpra note 19, at 466. 22 United JtateS v. Noriega, 1l 7 F.3d 1206,47 Fed. R. Evid. Serv. 786, 11 Fla. L. Weekly Fed. C 103 (I l th Cir. Fla. 1997). 23 Ibid., at 1212. l8

19

S d a r l y , in a suit against Radovan Karadzic, the self-declared president of the Bosnian Serbs, the plaintiffs challenged the defendant's head-of-state immunity because the United States did not recognise the country he purported to lead. The Court found that [. . .] the mere possibility that Karadzic might at some future date b e recogillsed by the United States as the head of state of a friendly nation and might thereby acquire head-of-state immunity does not transform the appellants' claims into a nonjusticiable request for an advisory opinion . . . [and] . . . it would b e entirely inappropriate for a court t o create the functional equivalent of such an immunity based o n speculation about what the Executive Branch might d o in the future. . . . ' m t is the duty o f the courts, in a matter so intimately associated with our foreign policy . . . n o t t o enlarge an immunity t o an extent w h c h the government . . . has n o t seen fit t o recognize'.24

It thus seems apparent, at least under the US case law, that the immunity of heads of state is largely a political question. In general, it may be concluded that heads of state s d l in power are granted immunity, provided the head of state has been recognised by the US Government. In case he has been recogmsed as a lawful ruler, the immunity granted is absolute.25 The absolute immunity of heads of state in power was also recopsed in a recent judgment of the French C o w de Cassdtion (supreme court), in a case against Muammar Gaddafi who was accused of complicity in the explosion of an airplane above Nigeria in 1989. The Court found that heads of state in power could not be prosecuted without provisions of international law which remove their immunity. In the Court's opinion the alleged offence committed by Gaddafi was not among the recopsed exceptions to head-of-state immunity, despite its serious nat~re.~6 In conclusion, it seems that national courts are s d l u n d n g to exercise jurisdiction over heads of state s d l in power. However, the indictment against Milosevic was issued whde he was s d l a head of state, whch might reflect an emerging opinia jaris. Further evidence on the removal of head-of-state immunity may be found in the statutes of the international criminal tribunals for the former Kadc v. Karadec, 70 F.3d 232, 64 USLW 2231 (2nd Cir. N.Y. 1995), at 248 (emphasis in the original, references omitted). 25 In this respect it is worth observing that it is usually states, and not heads of state, that are recognised by foreign governments. 26 In the words of the Cow de Cas~ation, 'la coutume internationale s'oppose A ce que les chefs d'Etat en exercice puissent, en l'absence de dispositions internationales contraires s'imposant aux parties concerntes, faire l'objet de poursuites devant les juridictions pinales d'un Etat ttranger . . . en l'ttat du droit international, le crime dtnonct, quelle qu'en soit la gravitt, ne relZve pas des exceptions au principe de I'immunitt de juridiction des chefs d'Etat ttrangers en exercice', Arrit no. 1414, 13 mars 2001, Cass Crim. 1. See also the Arre~tWarrant case, np-a note 15, in which the ICJ confirmed this view, awarding full immunity to Ministers for Foreign Affairs.

24

312

Finnish Yearbook of International la2v (Vol. XII, 2001)

Yugoslavia and Rwanda?' as well as in the Rome Statute of the International Criminal Court.28 Despite this, it must be remembered that the indtctment against Milosevic was issued by an international tribunal, and the principles enshrined in it may not necessarily be applied in extenso to national courts. This was in fact one of the arguments used by the International Court of Justice in the Arrest Warrant ca~e.~g

Former heads of state According to Article 39(2) of the Vienna Convention on Diplomatic Relations, 'when the functions of a person enjoymg privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do SO'.However, the same paragraph further provides that 'with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist'. Thus the immunity of a former diplomat is no longer attached to his person (immunity d o n e personae) but to the official acts he has performed in the exercise of his functions, which means that he enjoys continued immunity ratione matebae. In the Pinocbet case, the Law Lords were fairly unanimous over the fact that this by analogy applied to former heads of state. In the United States, the current head of a foreign state enjoys immunity in courts, whereas former heads of state are generally not immune.30 Events which took place during the dtctatorship of Ferdinand Marcos in the Philippines have led to many actions brought before US courts. In the case of Sison v. Marcos, the US District Court for the District of Hawaii was faced with the question of head-ofstate immunity, and more precisely with the question of the immunity of a former head of state." In that case the plaintiffs, on the one hand, argued that former heads of state enjoyed no immunity, and even if they did, such immunity dtd not extend to 27 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, annex (25 May 1993); and Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, SC Res. 955 (8 November 1994), reprinted in 33 InternationalLegalMateriah (1994) 1598. 28 Statute of the International Criminal Court, Rome, 18 July 1998, in force 1 July 2002, UN Doc. A/CONF. 183/9 (1998), reprinted in 37 IntemationalLegalMateriah (1998) 999. 29 P m 58 of the Arrest Warrant case, szlpra note 15. 30 T. Lininger, 'Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts', 7 Hamard Human RightsJomal(1994) 177-197 at 190. 31 Simn v. Marcos, Civil No. 86-0225 (D. Ha. 1986) (decision and order granting defendant's motion to dismiss) (on file with the author).

Head-f l t a t e Immunip v. Indivduaal Ctiminal Rerponsibialip

313

acts of torture. Marcos, on the other hand, argued that the immunity was absolute for acts committed during the term of hts presidency. Somewhat unfortunately the Court, however, refused to take a position as regards the immunity of heads of state. The Court considered that 'the judicial branch dtd not have the competence to examine the question, but it was the task of the executive branch to make such determination~'.3~ Instead, the Court applied the act of state doctrine under which it rejected the applicants claims on the grounds that 'it was beyond the capacity or functions of federal courts to subject the official acts or policies of the head of a foreign state to traditional standards of judicial review'." The plaintiffs filed an appeal with the United States Court of Appeals for the Ninth Circuit. Without explicitly referring to the immunity of heads of state, the Court of Appeals implied that former heads of state enjoyed no immunity. The Court found the act of state doctrine to be of 'little or no applicabdity to the situation of a deposed ruler from whom his former domain seeks an accounting. Once deposed, a dictator will find it difficult to deploy the act of state doctrine successfully7.34Contrary to the decision of the District Court, the Court of Appeals thus found the issues raised to be within the capacity of the courts to resolve. The Marcox case also demonstrates the reluctance of courts in general to take a position on the question of immunity. However, there seems to be a trend towards the removal of immunity as regards former heads of state. The arguments presented in the Pinocbet case are somewhat more developed than those used in the Marcox case. (Marcos was not accused of violating a rule of international law which had acheved the status ofjur cogenx.) As it was argued above, head-of-state immunity continues to exist for former heads of state in respect of official acts performed while in office. Thus, in order to decide whether a former head of state enjoys immunity, it is relevant to define what may be considered such official acts. As is pointed out by Lord Hope of Craighead, the functions of the head of state vary from state to state. In h s opinion, 'the functions of the head of state are those which h s own state enables or requires him to perform in the exercise of government7.35These functions include both those performed w i h his own state and those performed abroad, and may involve instructing, authorizing or ordering others. Accordmg to Lord Hope of Craighead, immunity depends on whether the acts performed were private acts or governmental acts done as a head of state, i.e. whether they were done for the own benefit of the head of state or to promote the state's interests. Lord Hope of Craighead further argues that 'the fact that acts done for the state have involved conduct whch is criminal does not Ibid. Ibid. Sison v. Marcos, No. 86-2496 (9th Cir. Hawai'i 1989) (reported in table at 878 F.2d 1439) (on file with the author). 35 Lord Hope of Craighead in the Judgment of 24 March 1999, stgra note 1, at 622. 32

33

314

Finnish Yearbook ofIntemationaILaw (Vol. XII, 2001)

remove the immunity. Indeed, the whole purpose of the residual immunity ratione naateriae is to protect the former head of state against allegations of such conduct after he has left office7.36

Exceptions to immunity Lord Hope of Craighead suggests that there are two exceptions to immunity, based on customary international law. The first exception relates to 'criminal acts which the head of state did under the colour of his authority as head of state but which were in reality for his own pleasure or benefit7.37The second one relates to 'acts the prohtbition of whtch has acquired the status ofjus cogens under intemational law. This compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to punish such conduct7.3*However, Lord Hope of Craighead was careful enough to point out that there is no general agreement as to the fact that crimes that have acquired the status of* cogens would be outside the immunity of former heads of state from prosecution before foreign national courts.39 According to Badr, the development of principles concerning immunity can be divided into an absolute doctrine of immunity and a restrictive doctrine of immunity.40 State immunity was most often considered absolute before the second World War. Since then the restrictive doctrine of immunity has become more widely accepted,41 although in the Arrest Warrant case, the International Court of Justice

Ibid For example Marcos and Noriega had clearly committed their offences for their own benefit; see Sison v. Marcos, szpra note 34, and United States v. Noriega, sqra note 23. 38 Lord Hope of Craighead in the Judgment of 24 March 1999, szpra note 1, at 622. 3Vbid, at 622-623. Despite the non-existence of a general agreement in this respect, the view that former heads of state enjoy no immunity where they have committed intemational crimes such as war crimes or crimes against humanity was adopted, e.g., by the Belgian coua of first instance concerning the request for the extradition of Augusto Pinochet. See Ordonnance de Jtrge d'znstmction, Tiibtrnal de premiire instance, Bmxehes, 6 novembre 1998 ('Un ancien chef d7Etat Ctranger ne jouit d'aucune immuniti de juridiction pour des actes criminels qui constituent en l'esptce des crimes de droit international tels que les crimes contre l'humanitt'). 40 G. M. Badr, State Immtrnio: A n Anabtical and Prognostic View (Martinus Nijhoff Publishers: The Hague, 1984) at 21. 41 Common law states have most often adopted the restrictive doctrine of immunity, for example the United States Foreign Sovereign Immunities Act of 1976 and the British State Immunity Act of 1978 represent this approach. See more on the emergence of a restrictive doctrine in common law and on the British State Immunity Act in C. J. Lewis, State and D$lomatic Immtrnio (Lloyd7sof London Press Ltd: London, 1990). For a more detailed analysis of the Foreign Sovereign Immunities Act, see, e.g., M. B. Feldrnan, 'The United States Foreign Soveregn Immunities Act of 1976 in Perspective: a Founder's View', 35 International and ComparativeLazvQtrader- (1986) 302-319. 37

Head-Of-StateImuniEy v. Individual Cm'minalResponsibility

applied an absolute doctrine of immunity, and made no distinction between acts committed by Ministers for Foreign Affairs in an official capacity and those committed in a private capacity,42 insofar as they committed the acts during their period of office. Under the restrictive doctrine of immunity there is no obligation for the forum state and its courts to grant immunity for actajuregestionis, limiting the immunity privilege to acta @re imperii.43 The present international law on state immunity is now generally based on a dstinction between acts performed by a foreign state in the exercise of its public or sovereign power, acts @re inaperii, as dstingwshed from acts of a commercial or private law nature, actsjuregestionis.44 T h s dstinction is comparable to that made by Lord Hope of Craighead between official acts of state and criminal acts committed for own benefit. According to Brohmer, immunity has never really been absolute, but various degrees of immunity have always existed.45 The same is implied by Schreuer.4 In the light of this, it must be observed that the approach chosen by the International Court of Justice is surprisingly conservative. Considering that immunity is a jurisdctional bar, subject-matter jurisdiction in an action against state depends on the existence of the specified exceptions to state immunity. In the absence of immunity the courts shall have both subject matter and personal jurisdction over a case against a foreign government. Sovereign immunity is an affirmative defence which must be specifically pleaded, and the burden will remain on the foreign state to produce evidence in support of its claim of immunity.47 The common denominator for the exceptions referred to above is that a state whch steps into the shoes of a private person, by engaging itself for example in commercial activity, is considered to give up its immunity. Apart from the rough dtstinction between commercial and non-commercial exceptions, the United States Foreign Sovereign Immunities Act (FSIA) names 'tort' as an exception to immunity. Under most of recent laws on state immunity, immunity can be withdrawn for illegal acts of foreign states which cause death or personal injury or damage or loss of property. Accordmg to Schreuer, the torts exception is meant to cover not only situations like motor or other accidents, but also crimes such as political assassinations or other types of state terrorism in the forum state. Schreuer finds that the tort exception can be considered to reject the tradttional dtstinction between private and public acts, which is why it sometimes is Para. 55 of the Arrest Warrant case, stlpra note 15. 43 See Brijhmer, State I m n i p , stlpra note 14, at 1. 44 See Donner, 'Some Recent Caselaw', stlpra note 14, at 391. 45 See Brohmer, State Imm.uni0, stlpra note 14, at 14-16. 46 See C. H. Schreuer, State Imnity: Some Recent Developments (Grotius Publications Limited: Cambridge, 1988) at 4-5. 47 See, e.g., Trajno v. Marcos and Marcos-Manotoc, 978 F.2d 493, 61 USLW 2257, 116 A.L.R. Fed. 765 (9th Cir. Hawai'i 1992); Sideman de Blake v. Aqentina, infra note 61; Von Dardelv. USSR, infra note 64. 42

316

Finnish Yearbook of International Law (Vol. XII, 2001)

difficult to r e c o p s e the legality of jurisdiction over non-commercial or public torts by foreign states.48 Indeed, Schreuer's view is supported by the case of Letelier v. the Republic of Chile where the Court rejected Chile's argument according to which immunity should be upheld since the torts exception in the FSLA did not extend to public acts like political assasinations.49 Human rights violations are not explicitly mentioned as an exception to immunity in domestic or international documents concerning State immunity. They could, however, be considered to fall within the torts exception, which is also where Schreuer places them.50 There still remains one crucial problem for the purpose of applying the principle of universal jurisdiction, even if the torts exception is applicable to criminal activities, including human rights violations. The requirement of a territorial connection sets its lirmts on the application of the torts exception. The new codifications of immunity law usually require that the tort be committed inside the forum State.51 This means that the torts exception cannot be applied to torts or crimes committed abroad. The US courts have consistently held that jurisdiction will only be assumed over torts which have taken place on US territory. Accordmg to Schreuer, cases arising from murder, torture and other human rights violations occuring in the defendant States have usually been dismissed.52 Does this mean that there is no place for universal jurisdiction? It is necessary to examine the question of exceptions to immunity further.

Treaty exception In the judgment of 25 November 1998, Lord Slynn of Hadley contended that the immunity of a former head of state could only be removed if there are applicable treaty provisions to that effect. In his opinion, the treaty in question must clearly define the crime against international law, empower any state to prosecute the crime and provide that a national court has jurisdiction to try the crime even where it has allegedly been committed by a former head of state or that the head-of-state immunity is not a valid defence.53 In the light of those arguments, Lord Hope of Craighead examined the provisions of the Torture Convention. As he points out, the Convention fulfils the criteria with the exception of the explicit denial of immunity for heads of state. Lord Hope of Craighead nevertheless questions the need for explicit removal of Schreuer, Recent Developments, sztpra note 46, at 44. hteker v. Rrrpubkc of Chile, 488 F.Supp. 665 (D.D.C. 1980). 50 Schreuer, Recent Developments, sqra note 46, at 57 et seq. 51 Ibid, at 51. 52 Ibid., at 52. See also Sideman de Blake v . Argentina, infra note 61. 53 Lord Slynn o f Hadley in the Judgment o f 25 November 1998, sztpra note 1, at 1306-1314.

48

49

Head-Of-State Immuniy v. Individ~aICriminal ResponsibiiIity

317

immunity, suggesting that the Torture Convention might imply a removal of immunity for former heads of state.54 The Convention provides protection against official torture, requiring that the torture has been 'infhcted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacityY.55As Lord Hope of Craighead suggests, the wording is so broadly framed that it must include heads of state. He further argues that 'a head of state who resorted to conduct [described in the Convention] in the exercise of his function would clearly be "acting in an official capacitym.'56Lord Hope of Craighead nevertheless raises doubts as to whether the wording of the Convention at the same time implies that former heads of state are consequently deprived of their immunity. Although he adrmts that it would be rational to make no exception in respect of heads of state who, by instigation, have caused the acts of torture and are thus primarily responsible for their perpetration, he also reminds of the absolute immunity ratione personae of serving heads of state whch has perhaps not been intended to have been affected by the treaty provisions.57 Lord Hutton is prepared to go further in the interpretation of the provisions of the Torture Convention, and is of the opinion that they fulfil the requirement of express or unequivocal waiver of immunity.58 In contrast to the Torture Convention, Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter 'the Genocide Convention') makes explicit reference to heads of state by stating that 'persons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals'.5" As regards domestic law, the Foreign Sovereign Irnrnunities Act (FSIA), for example, provides for a general existing treaty exception, under which immunity may be set aside if it is explicitly mentioned in an international agreement to which the United States was a party at the time of its enactment. It seems that in the United States, the treaty exception is welcomed by the courts.~O The document invoked must nevertheless be a bindmg agreement, as is shown by S i A e m n de Hake v. Argentina. The Sidermans argued that Argentina's immunity under the FSIA was subject to the Universal Declaration of Human Rights and the United Nations Charter. The Court drd not find the Declaration to be an international agreement within the meaning of section 1604, since 'it creates legal 54 Lord

Hope of Craighead in the Judgment of 24 March 1999, s@ra note 1, at 623-627. Ibid., at 624. 56 Ibid. 57 Ibid., at 626. 58 Lord Hutton in the Judgment of 24 March 1999, stlpra note 1, at 638. 59 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, in force 12January 1951,78 United Nations Treaty Series 277. 60 See, e.g., Von Dardelv. USSR, infra note 64. 55

318

Finnish Yearbook of International Lazv (Vol. XII, 2001)

obligations only insofar as it represents evidence of customary international law7.61 The Court saw no indication in the FSIA or its legdative history that international agreements would include non-bindmg resolutions. The Court accepted the UN Charter to fulfil the requirements, but the Sidermans had been 'unable to point out any language in the Charter regardmg individual remedies or compensation for violations of its substantive rules of conduct7.62Therefore, the Court concluded that the Sidermans had faded to identify an international agreement, to which the United States was a party, expressly conflicting with the immunity provisions of the FSIA.63 This implies that the document does not only have to be a binding one, but it also has to expressly conflict with the applicable provisions on immunity. In the Von Dardel case the Court also examined the question of waiver of immunity. Under section 1605(a) (l)of the FSIA, foreign states may waive immunity either explicitly or by implication. According to the Court, 'the United States courts have not yet fully explored the proposition that by ratifying an international agreement a foreign state implicitly waives a defense of sovereign immunity against claims seeking compensation for acts whch constitute violations of such agreements'." The Court found, however, that it had become accepted among jurists that a sovereign may implicitly waive its immunity for human rights violations by ratifjmg human rights agreements65 Thus the ratification of a human rights convention could be seen as a waiver of immunity in respect of violations of human rights subject to criminal proceedmgs in a foreign state. However, as pointed out by Lord Hope of Craighead, the absence of clear treaty provisions might indeed lead to inconsequent case law in the national courts of different countries.66 The Law Lords in the Pinodet judgment sought a way out of this problem with the Torture Convention by attaching the charges against Pinochet to the concepts of international crime andjus cogens.

Jus cogens as an exception? It was submitted on behalf of Pinochet that the acts of torture were carried out for the purposes of protecting the state and advancing its interests, and were therefore governmental functions and were accordmgly performed as functions of head of state. It was recopsed by the majority of Law Lords that the alleged acts of torture were indeed carried out under colour of his position as head of state but, as Lord Sideman de Blake v. Argentina, 965 F.2d 699,60 USLW 2771 (9th Cir. Cal. 1992), at 719. Ibid., at 720. 63 Ibid. 64 Von Dardelv. USSR, 623 F.Supp. 246 (D.D.C. 1985), at 255. 65 Ibid., at 256. 66 Lord Hope of Craighead in the Judgment of 24 March 1999, stcpra note 1, at 623-626. 62

Hutton points out, 'they cannot be regarded as functions of a head of state under international law when international law expressly prohbits torture as a measure whch a state can employ in any circumstances whatsoever and has made it an international crirne7.67 The existence of criminal responsibdity of states apart from the delictual or civil responsibility has been a controversial question. There are wrongful acts regarded by the international community as being more serious than others because they affect essential interests of the international community. The special forms of responsibility referred to are the sanctions provided by the United Nations Charter, or possibly other collective sanctions, and reprisals." International law recogruses a number of offences as being international crimes. A violation ofjas cogens norms, for example, can be considered an international crime creating state responsibhty. But does it create a right for thlrd states to exercise jurisdiction? JHJ cogem means customary laws considered bindmg on all nations, and is derived from values taken to be fundamental by the international community. Becausej~scogens norms do not depend solely on the consent of states for their binding force, they enjoy the hghest status within international law. For example, a treaty that contravenesjzls cogens is considered under international law to be void ab initio. Peremptory norms prevail over and invalidate international agreements and other rules of international law in conhct with them, and they are subject to modification only by a subsequent norm of international law having the same character.@According to Hannikainen, the right to life, torture and cruel, inhuman or degrading treatment or punishment, slavery, the slave trade and servitude, inter alia, are non-derogable and thus constitutej~scogens.76 In the second Pinochet judgment, several Law Lords made reference tojas cogenr, holding that immunity should be denied on the basis that the alleged acts violatedj~s cogens.71 The Republic of Chile did a h t that the prohibition of torture had the character o f j ~ cogens s or obligation erga omnes but nevertheless insisted that it d ~ not d confer universal jurisdiction or affect the immunity of a former head of state ratione Lord Hutton in the Judgment of 24 March 1999, stgra note 1, at 638. H. H. Weiler, A. Cassese and M. Spinedi (eds.), International C h e s $State: A CriticalAnalysis oftbe ILC's Drap Article 19 on State Responsibility (European University Institute, Walter de Gruyter: Berlin, 1989) at 52-53. I. Brownlie, Jystem oftbe Law $Nations: State Responsibilip (Part I) (Clarendon Press: Oxford, 1983) at 32. 69 See Article 53 of the Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 198O,1155 UnitedNations Treaty Series 331. For applications, see, e.g., Sidemnan de Blake v. Atgentina, snpra note 61; and Princx v. Federal Repnblic of G e m a y , infra note 79. See more on jn.r cogens, e.g., in L. Hannikainen, Peremptog N o m s @S cogens) in International Law: Historical Development, Criterid, Present Stattrs (Lakimiesliiton Kustannus: Helsinki, 1988) at 1-19. 70 Hannikainen, Peremptog Noms, snpra note 69, at 429-430. 71 See, e.g., Lord Browne-Wilkinson, Lord Hope of Craighead, Lord Hutton and Lord W e t in the Judgment of 24 March 1999, sqra note 1, at 589,622,626,630-631, and 649. 67

68 J.

Finnish Yearbook: ofInternationalLaw (VoL XII, 200 l )

mteriae from the jurisdxtion of foreign courts. Tt.Lls plea was refused. Lord BrowneWilkinson, for example, cited the case of Demjayhk: v. Petmv.rky, in whch it was stated that: [. . .] thejzls cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. The offenders are seen as common enemies of all madand and all nations have an equal interest in their apprehension and prose~ution.~2

Indwidual states have even assumed jurisdiction over international crimes, even when they have not been committed in those states. Under present-day international law it seems that there is consensus to a certain degree that gross violations of human rights, at least those whch have attained the status of& cogens, are subject to universal jurisdction. According to Dominick, this is the very basis on which immunity of former heads of state may be refused.73 Furthermore, as Lord Millet points out, the definition of torture in the Convention would be inconsistent with any plea of immunity d o n e materiae. In his opinion, torture is an offence for which immunity ratione materiae is not at all available. 'International law cannot be supposed to have established a crime having the character of a j k cogens norm and at the same time to have provided an immunity which is CO-extensivewith the obligation it seeks to impose.'74 Despite the fact that the International Court of Justice studed the Pinochet judgment, it reached a different conclusion, fmding that there was no evidence on any form of exception to the rule according immunity from criminal jurisdiction, not even in suspected cases of war crimes or crimes against humanity.75 In Sidemn de Blake v. Argentina, the Sidermans also claimed that the prohibition against official torture had attained the status of a jas cogens norm. According to the Court, there was no doubt that the prohibition agamst official torture was a norm of customary international law.76 And while not all customary intemational law carries with it the force of ajas cogens norm, the prohbition against official torture has attained that status: 'Under international law, any state that engages in official torture, violatesjkr cogens.'77 However, although the Court had no chfficulties in findmg that Argentina had violatedjk cogens, the problem was that the Court not only dealt with customary intemational law, but also with the Foreign Lord Browne-Wilkinson in the Judgment of 24 March 1999, s@ra note 1; cf. Demjaykk v. Petrovsky (1985) 603 F. Supp. 1468,776 F.2d 571. 73 C. Dominici, 'Quelques observations sur l'irnmuniti de juridiction pinale de l'ancien chef d'~tat', 103 Revaeginh-ale de droit intemationalptlblic(1999) 297-308, at 305. 74 Lord Millet in the Judgment of 24 March 1999, s@ra note 1, at 651. 75 Para. 58 of the Arrest Warrant case, stcpra note 15. 76 Sideman de Bhke v. Argentina, sapra note 61, at 716. 77 Siderman de Blake v. Argentina, s@ra note 61,717. 72

Sovereign Immunities Act (FSIA.), and the FSIA does not specifically provide for an exception to sovereign immunity based onjus cogem. Immunity was to be granted in those cases involving alleged violations of international law that did not fall within one of the FSIA exceptions. The fact that there had been a violation ofjus cogens d.td not confer jurisdction under the FSIA.78 In Hugo PPncp v. Federal Republic oj- Gemnay the amin' argued that 'the Thlrd Reich bad] impliedly waived Germany's sovereign immunity under the FSIA by violating jus cogens norms of the law of nationd.79 They further argued that 'interpreting the FSIA to imply a waiver where a violation of jus cogens norms has occurred "would reconcile the FSIA with accepted principles of international law"'.80 The Court, however, reiterated the arguments put fonvard by the Ninth Circuit in the case of Sideman de Blake. Moreover, the Court found that the plaintiffs'jas cogem theory of implied waiver was incompatible with the intention requirement implicit in section 1605(a)(l): [Clourts 'rarely find that a nation has waived its sovereign immunity . . . 'tvithout strong evidence that this is what the foreign state intended"'. . . . That requirement is also reflected in the examples of implied waiver set forth in the legislative history of 1605(a)(l), all of whch arise either from the foreign state's agreement (to arbitration or to a particular choice of law) or from its f h g a responsive pleading without raising the defense of sovereign immunity.81

In this case, the plaintiffs &d not maintain that either the then govemment of Germany or the predecessor govemment of the Third Reich actually indicated, even implicitly, a willingness to waive immunity for actions arising out of the Nazi atrocities. Therefore the Court found that there were no grounds for holdmg that the violation of& cogens norms by the Third Reich constituted an implied waiver of sovereign immunity under the FSLA.82 The above examples suggest that it may be dfficult to base an effective argument on& cogens alone, if written law does not explicitly provide for such an exception to immunity. The United States courts have been more *g to accept arguments based on the torts exception or the treaty exception. Jus cogens may also be invoked by plaintiffs, but since it is not alone sufficient, it is advisable to invoke written law as well. However, jus cogens was successfully applied in the Pinochet judgment of 24 March 1999. It would also seem that international law supports universal jurisdiction over violations of jus cogem. This view is supported by the Ibid, at 719; in this case immunity was nevertheless refused under the implied waiver exception PTinq v. Federal Rep~blicofGermany, 26 F.3d 1l66 P . C . Cir. 1994), at 1173. 80 Ibid., at 1174, references omitted. 81 Ibid., references omitted.

78 79

82

Ibid.

322

Finnish Yearbook of InternationalLdzv (Vol. XI]; 2001)

obligation contained in certain international conventions to prosecute or extrachte perpetrators of gross violations of human rights. One of them is the Torture Convention whch was applied in the Pitzocbet case.83 These alternative obligations shall nevertheless not be discussed here in more detd.84

Is there a general exception to immunity based on gross violations of human rights? According to Brohmer, domestic courts are often hostile to actions brought by victims of human rights violations.85 Steinhardt mentions that the United States courts, for example, have even articulated specific doctrines of chffidence for refusing to consider international norms, granting immunity to the violating state either because the human rights violations are regarded as governmental acts or because a sufficient territorial nexus to the forum state cannot be established.86 Brownlie fmds that national courts should not even have a discretion in granting immunity.87 As regards the question of immunity, arguments depend on the point of view. The states as defendants claim the principle of sovereignty and other issues relating thereto, whereas the victims of human rights violations as plaintiffs invoke thejas cogens character of these rights, that should, in their opinion, prevail over the granting of immunity. The plaintiffs thus most often base their arguments on rules of public international law. The most well-known human rights litigation in the United States, in which international law has been applied, is litigation based on tort claims by aliens against aliens for human rights abuses committed abroad. According to Steinhardt, international law not only grounds federal jurisdiction, but it may, through its incorporation into federal common law, provide the applicable substantive law as well.88 The applicability of international law has been addressed, inter aha, in the case of FiIarziga v. Pena-Irala, in which the United States Court of Appeals for the Second Circuit determined that US courts had jurischction to hear claims by ahens who were the victims of foreign human rights abuses. According to the Court, 'the constitutional basis for the Ahen Tort Statute is the law of nations, which has always been part of the federal common alw @ .' ' The case also established that courts Article 7 of the Torture Convention, sqra note 8. See more on the question in, e.g., Bassiouni, Cn'mes Against Hnmanity, szgra note 19, at 499-508. 85 Brohmer, State Immz/nity, sqra note 14, at 2. 86 R. Steinhardt, 'Strategic Reliance on International Human Qhts Law in Domestic Litigation: Current Developments', 34 Federal Bar News e9Jonmal (1987) 389-392 at 389. 87 I. Brownlie, 'Contemporary Problems concerning the Jurisdictional Immunity of States', 62-1 Annnaire de ITnstitut de Droit Intemational (1987) at 17. 88 Steinhardt, 'Strategic Reliance', s@ra note 86, at 389. 89 Filartka v. Pena-Irala, 630 F.2d 876 (2d Cir. l98O), 885. 83

84

Head-Of-StateImmunity v. Individual Cmininal Re.ponsibiZity

323

ascertaining the content of the law of nations 'must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today7.90 As Schreuer points out, there are increasingly views according to which violations of international law amounting to criminal activity, such as terrorism and other gross violations of human rights, should not be covered by state irnmunity.91 It has been argued that impunity only encourages perpetrators. Furthermore, under international law there even seems to exist an obligation to exercise jurisdxtion. However, in the light of the Pinochet judgments, it would seem that only criminal acts amounting to international crimes or violations of jtls cogens override the defence of head-of-state immunity. As regards the national law of the United States, withdrawal of immunity in respect of gross violations of human rights could be based on the provisions on the treaty exception.92 Schreuer considers that the main obstacle to the recoption of an exception to immunity based on criininal state activity, includmg violations of human rights, is not so much the official or sovereign nature of these crimes, but rather the nexus requirement.93 This requirement d only rarely be met in lawsuits dYected against foreign States for human rights violations. As is demonstrated by the Von Dardel case, however, the international agreements exception can in practice override this h t a t i o n and grant universal jurisdiction over foreign states." Schreuer hunself would prefer to see that the supervision of international human rights takes place through the ratification of human rights conventions and international procedures of supervision, instead of litigation before domestic courts. He finds that a more realistic role for domestic courts in the area of human rights protection might be to enforce authoritative judgments which have already been issued by an international body of supervision.95 In any case, there seems to be a growing understanding that a human rights exception, largely supported by the concept ofjzis cogens, does exist. As the US case law demonstrates, however, it is usually not sufficient to invoke a human rights violation, but it has to be supported either by a tort claim or a claim based on an existing treaty exception.

Ibid., at 881. See also Forti v. Snare?-Mason, 672 F.Supp. 1531 @.D. Ca. 1987), and W i c v . Karad@c, strpra note 24. 9lschreuer, Recent De~elopments,strpra note 46, at 57. 92 See, e.g., the Von Dardelv. USSR case, sqra note 64. 93 Schreuer, Recent Develipment, sqra note 46, at 58. 94 See Von Dardelv. USSR, strpra note 64. 95 Schreuer, Recent Devel'opments, szlpra note 46, at 60-61.

90

Finnish Yearbook OfIntemationaa'law (VoL XII, 2001)

Individual criminal responsibility and irrelevance of official capacity Apart from the justifications given above for the non-application of the defence of head-of-state immunity with respect to gross violations of human rights, the principles of individual criminal responsibility and irrelevance of official capacity support the finding that heads of state or high public officials who have committed such violations cannot invoke immunity in order to avoid prosecution. However, as pointed out by Simma and Paulus, a distinction must be made between the obligation of states to try individuals and punish them on the basis of domestic law and rules establishing individual criminal responsibhty directly under international law.96 In the opinion of Sirnma and Paulus, one may only speak of individual responsibility of a truly international character in the latter case.97 In order to hold an inchvidual liable for a crime under international law, there have to be applicable norms to that effect. As Lord Browne-Whson observes, the concept of personal liabhty under international law for international crimes is relatively new.98 As regards modem intemational law, the principle can be derived from humanitarian law and more precisely from the Charter of the Nuremberg Tribunal and from its judgment." Article 6 of the Charter lays down individual criminal responsibility for crimes against peace, war crimes and crimes against humanity, also for leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the crimes listed. As far as crimes against humanity are concerned, there wdl be individual responsibility irrespective of whether the act has been in violation of the domestic law of the country where perpetrated. The provisions in Article 6 have been interpreted as implying that international law may impose duties on individuals This should not be interpreted as creating a problem of legality but simply as meaning that criminal liability may be derived from an applicable international convention even in the absence of domestic provisions implementing the international norrns in question. Thus, the liability is based on the international norms but, considering that international conventions seldom lay down penalties, any sanctions imposed as a result would be based on domestic criminal law. 97 B. Sirnma and A. L. Paulus, 'The Responsibility of Individuals for Human Q h t s Abuses in Internal Conflicts: A Positivist View', 93 American Journal of Internationallaw (1999) 302-316 at 308. For a more detailed classification of the applicable bodies of law, see Ratner and Abrams, Accountahli~forH m a n Rzghts Atrocities, sstcpra note 11, at 9-14. 98 Lord Browne-Wilkinson in the Judgment of 24 March 1999, qbra note 1, at 589. 99 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, 8 August 1945,82 United Nations Treap Series 279. For the judgment of the International Military Tribunal for the Trial of German Major War Criminals, see, e.g., <www.yale.edu/lawweb/avalon/imt/proc/judcont.htm> (accessed 17 October 2002).

96

directly without corresponding provisions of internal law, and thus reflecting the principle of supremacy of international law over national law.100 The Nuremberg principles have later been adopted in the statutes of International Crimifial Tribunals for the former Yugoslavia and Rwanda (Articles 7 and 6, respectively), as well as in the Rome Statute of the International Criminal Court. Article 25(2) of the Rome Statute reaffwns the principle of indvidual criminal responsibility: 'A person who commits a crime within the jurisdiction of the Court shall be indvidually responsible and liable for punishment in accordance with h s Statute7.The principle of indvidual criminal responsibility is indeed most clearly expressed in these instruments but some might argue that the principles enshrined in them may not be applied in extenso to prosecutions before national courts under other international agreements, as was indeed suggested by Lord Goff of Chieveley.lol The Torture Convention, applied in the Pinochet case, clearly provides for the prosecution of indviduals who have committed acts of torture. The widespread adherence to the Torture Convention also suggests that customary international law does r e c o p s e torture as an international crime. Torture is among those human rights violations whose prohbition is generally regarded as$ cogens, and may be said to incur indvidual responsibility under customary law, considering that all states may punish acts committed anywhere. In order to prosecute government officials, it is necessary that they can be held responsible for acts of torture. The Convention in fact requires a nexus to official conduct in order for it to apply.102 Thus, should the authorities of a third state attempt to prosecute a head of state, they would have to prove that the torture of which he is accused has a h k to official government policy. This was in fact one of the issues discussed in the Pinoghet judgments.103 As far as other conventions are concerned, the Geneva Conventions and the addtional protocols thereto, including the obligation to prosecute indviduals who have committed grave breaches of the Conventions, basically apply to international armed conflicts. Thus, the existence of international criminal responsibility for such war crimes is clear. However, Common Article 3 and Protocol 11,104 which apply in the case of an internal armed conflict, do not contain any provisions dealing with indvidual responsibhty. Although the Genocide Convention lacks explicit 100 For a commentary on the principle of individual criminal responsibility under the Nuremberg Charter, see Bassiouni, Ctimes Against Hmanip, sqra note 3, at 525-534. O n the character of international crimes, see also J. Paust et al. (eds.), International Ctininal Law: Cases and Materah (Carolina Academic Press: Durham, North Carolina, 1996) at 1042-1044. 101 Lord Goff of Chieveley in the Judgment of 24 March 1999, sqra note 1, at 599. 102 See Ratner and Abrams, AccountabilityforH m a n Rzghts Atmn'ties, sqra note 11, at 110-113. 103 See, e.g., Lord Browne-Wilkinson in the Judgment of 24 March 1999, szrpra note 1, at 590-595. 104 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol 11), Geneva, 8 June 1977, in force 7 December 1978,1125 United Nations Treap Series 609.

326

Finnish Yearbook ofInternational LW(Vol. XII, 2001)

provisions allowing for the exercise of universal jurisdction, it contains perhaps the clearest provisions on individual criminal responsibhty, and individuals may be held liable directly under international law.105

Individual criminal responsibility of heads of state The question of possible individual criminal responsibility of heads of state goes back to the problem of head-of-state immunity. If the head of state acts in his official capacity, irrespective of the nature of the act, the question is whether he can be held liable anyway regardless of his personal official immunity or whether it is not actually the state whose liability is implicated.lO6 Even the principle of irrelevance of official capacity was recognised already in the Nuremberg Charter. According to Article 7 of the Charter, 'the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment'. The ICTY (Article 7(2)) and the ICTR (Article 6(2)) Charters reaffm this principle as a basis for criminal liability in respect of international crimes. And indeed, this has encouraged the ICTY to issue an indctment against ~ o s e v i c . ~ 0Finally, 7 Article 27 of the ICC Statute provides that the Statute [. . .] shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a governmental official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Despite the recognition of the Nuremberg principles and despite numerous war crimes trials after World War 11, no express provision on superior responsibility was included in the Geneva Conventions of 1949.l08 Accordrng to Bantekas, national 105 See Article 4 of the Genocide Convention, infa the text accompanying note 110. See further Sirnma and Paulus, Xesponsibility of Individuals', sstgra note 97, at 308-313, and Ratner and Abrams, Accozjntabilipfor H~manRzghts Atron'ties, sstgra note 11, at 24-27 and 48-51. 106 See Brohmer, State Immunip, sstgra note 14, at 31; and Ratner and Abrams, Accomtabikpfor Haman RightsAtron'ties, sstgra note 11, at 13-14. 107 See Prosectrtor v. Mdosevic et al., Case No. IT-99-37-1, Office of the Prosecutor of the ICTY, Indictment (22 May 1999); see also Prosecutor v. Milosevic, Case No. IT-99-37-1, Office of the Prosecutor of the ICTY, Indictment (29 June 2001) - Kosovo; and Prosemtor v. Milosevic, Case No. IT-01-50-1, Office of the Prosecutor of the ICTY, Indictment (8 October 2001) - Croatia). See also statement by Louise Arbour, Prosecutor at the ICTY, press release JL/PIU/404-E, The Hague, 27 May 1999. '08 Such a provision was later included in Protocol I (Article 86, para. 2), see sstgra note 7.

Head-af-State Immunity v. IndividuaI Criminal Responsibiliiy

327

forums have therefore been reluctant to convict officers for the crimes of their subordmates, due to the political implications of such charges.109 The Genocide Convention clearly provides for irrelevance of official capacity, includrng that of heads of state. Accordmg to Article 4, 'persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals'."O The provisions of the Torture Convention are somewhat less clear and were subject to extensive debate in the Pinocbet judgments. As was observed above, Article 1 of the Convention requires a connection to official conduct as it is necessary that the torture has been 'inficted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity'. The question is whether a head of state may be considered 'a public official or other person acting in an official capacity'. In the first Pilaocbet judgment Lord Slynn of Hadley was of the opinion that he was neither. He noted that there were international conventions which explicitly referred to heads of state - such as the Statute of the ICTY - and in the absence of explicit provisions, a convention could not intend to render heads of state liable."' Lord Browne-Whson &sagreed with this contention in the second Pinocbet judgment. In his opinion it would be against the intention of the Convention if someone could be exempt from liabihty. Furthermore, Chde had consistently argued that the alleged crimes were acts committed by a person acting in an official capacity. Thus, Lord Brown-Wilkinson pointed out that it was not relevant to assess whether Pinochet fell w i t h the definition of the Torture Convention, but to decide if he was procedurally immune from proce~s."~ One cannot but agree with these arguments of Lord Browne-Wilkmson as heads of state are an ideal example of persons acting in official capacity for the purposes of Article 1 of the Torture Convention, and are therefore personally liable for their crimes and subject to prosecution in accordance with Article 5. However, the defence of Pinochet further argued that he did not personally commit any of the crimes, and should therefore not be held liable for crimes he did not commit. Indeed, heads of state most often do not commit the acts themselves, but rather give the order, or more hkely fail to prevent the commission of the acts.113 I0V.Bantekas, 'The Contemporary Law of Superior Responsibility', 93 American Journal ofInternational Law (1999) 573-595 at 574. See also McCormack, 'From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime', in T.L.H. McCorrnack and G.J. Simpson (eds.), The Law of War Crimes (Kluwer Law International: The Hague, 1997) 31 at 40. 110 Cf. s@ra note 105. I l l Lord Slynn of Hadley in the Judgment of 25 November 1998, szgra note I, at 1309-1314. "2 Lord Browne-Wilkinson in the Judgment of 24 March 1999, strpra note 1, at 591. 113 Milosevic, for example, is accused of having 'planned, instigated, ordered, committed or otherwise aided and abetted' the systematic crimes against humanity in Kosovo. See the Indictments of the ICTY, strpra note 107.

Finn& Yearbook of International LW(Vol. XII, 2001)

It is the opinion of several jurists that heads of state may be held liable under the doctrine of superior liability. Under h s doctrine heads of state should be held responsible for giving illegal orders, for a failure to prevent, deter or repress for example the commission of torture in question if he knew or had reason to know that subordinates were committing acts of torture, and for a failure to exercise adequate control over subordinates, even in the case where authority has been delegated. It is necessary that the head of state has taken all the measures w i h n his material possibdity to prevent the crimes, in order to be released from liabhty. The liabhty to prevent the commission of the crimes begms already when they are being planned. Where the acts of torture have already been committed, the superiors, includmg the head of state, have a duty to ensure that the offences are investigated and at some point the perpetrators of the offences are punished under due process of law.ll4 In essence, the doctrine of superior liability is based on the idea of addressing omissions instead of actions. As Bantekas points out, most systems of criminal law punish unlawful positive conduct, thus requiring the commission of an act. For example, common law jurisdictions r e c o p s e personal liability for omissions only where a specific duty is prescribed either by statute or by the common law.115 The same is implied by Fletcher. Thus, there is no separate crime of letting a person die, for example, but the charge is murder or manslaughter and the verbs used to define h s crime are always 'killing' or 'causing death'. Accordmgly, where the penal laws do not define omission as a punishable offence, the punishment of commission by omission raises serious problems under the principle ndhpoena sine lege."6 In such cases, it would be dtfficult to impose a punishment on a head of state who has remained passive and failed to intervene and prevent the commission of the offence. Superior liability could, however, be considered a form of complicity through omission. The idea of complicity as a basis for shared responsibility has become an accepted part of legal thought."' The criminal law approach of a gven state to complicity as a ground for punishment may indeed affect the practice of prosecuting high officials for gross violations of human rights. The liability based on complicity should nevertheless be dtfferentiated from duect liability that accrues from positive and direct participation in the crime, e.g., through ordering or inciting others. Superior liability arises where the superior had 114 C.L. Blakesley, 'Atrocity and Its Prosecution: The Ad Hoc Tribunals for the Former Yugoslavia and Rwanda' in McCorrnack and Simpson (eds.), Lam/ of War Crimes, mpra note 109,189-228 at 218-219. See also L. Green, The Contemporary Law ofAmed Conzict (Manchester University Press, 2000) at 303-304; and Bantekas, 'Superior Responsibility', sqra note 109, at 591-593. "5 Bantekas, 'Superior Responsibility', szcpra note 109, at 575. 116 See G. Fletcher, Basic concepts ofcrimnal law (Oxford University Press, 1998) at 46-48. 117 Ibid., at 189-191.

either actual or constructive knowledge of crimes by subordinates or had committed gross negligence that contributed to their commission. Apart from &us, it is necessary that there is a fdure to act. According to Bantekas and Bassiouni, the doctrine of command responsibhty refers to 'imputed liabhty' instead of vicarious or strict liabhty.118 Under international humanitarian law the responsibility of a commander is not based on the mere position of authority but the elements of subordination, knowledge and fdure to act are necessary for the emergence of individual criminal liabhty. Thus, if the elements referred to above - subordination, knowledge and fdure to act - are all fulfilled, there should be no obstacle to the conviction of superiors, includvlg heads of state, for a fdure to prevent e.g. the commission of crimes against humanity. However, there may sall be problems of proof. Knowledge may be difficult to prove if the chain of command is long, as it usually is in the case of heads of state.

Conclusions It is unfortunate that the International Court of Justice, in its judgment given in the

Amest Warrant case, reached a conclusion that runs counter those that may be drawn on the basis of case law and opinions of international lawyers. The Court did recognise the principle of individual criminal responsibhty and pointed out that immunity does not mean impunity, as prosecution is possible in the territorial state or before an international tribunal. However, as is observed by judge Van den Wyngaert in her dssenting opinion, there are cases in which neither of those options are avdable, and therefore the granting of absolute immunity from prosecution in a third state would de facto lead to impunity.119 Furthermore, judge Van den Wyngaert correctly points out that the Court's reasoning is inadequate insofar as it concerns war crimes and crimes against humanity and, in my opinion, the Court f d s to take the most recent developments of international criminal law sufficiently into account. Some lawyers are prepared to state that the official conduct of a head of state may sometimes involve criminal activities, and in such cases he may even enjoy immunity unless the criminal acts in question have been committed for his own pleasure or benefit Any official acts must serve the interests of the state. However, gross violations of human rights, even if committed under the disgwse of government policy, may not be considered to hlfd the criteria of official acts. Torture, for example, may be ordered by a head of state but it cannot be considered, 118 Bantekas, 'Superior Responsibility', stpra note 109, at 577; and Bassiouni, C t i m Against Hmanity, supra note 3, at 419. 119 See the dissenting opinion of judge Van den Wyngaert in the Arrest Warrant case, szrpra note 15.

330

Finnish Yearbook OfIntemationalLdzv (Vol. XII, 2001)

under international law, an acceptable part of any state's official policy. The more serious the offences in question are, the more willing the judges are to deny head-ofstate immunity. Under present-day international law, it seems that courts are reluctant to remove the immunity of sitting heads of state, whereas former heads of state enjoy no immunity where they are accused of gross violations of human rights amounting to international crimes. In ths respect, the j ~ cogens s character of the prolubition of such crimes may be invoked, which should override any claim of immunity. Even if the relevant treaties do not specifically refer to heads of state, with the exception of the Genocide Convention, judges are increasingly prepared to accept the denial of immunity under customary international law. Furthermore, heads of state may, in the same way as any other public officials, be held personally liable for the planning of or giving orders to commit gross violations of human rights, as a form of complicity, or for a failure to take the necessary measures in order to prevent, deter or repress such offences.

The Interaction of Community and International Law: Similar, but Different, or Just Different? Duncan Adnan French*

Introduction In a recent article Professor Daniel Bodansky, whilst discussing the legitimacy of international environmental law, made the following remark, 'the European Union debate is illuminating. . . . Just as the European Union's alleged democratic deficit was a significant factor in the controversy about the Maastricht Treaty . . . concerns about legtimacy could hinder efforts to s~engtheninternational environmental governance'.1 Elsewhere, Professor Eileen Denza has noted that 'Lilt is to be regretted that EC law ever ceased to be regarded as a vanguard system of international law'.2 Both statements share a s d a r intellectual base, vix., that EC law and public international law are sufficiently juridically s d a r so as to be capable either of comparison (Bodansky), or - to some extent at least - absorption (Denza). As Denza notes, '[bloth public international law and EC law are essentially law between sovereign ~ t a t e s ' .However, ~ is 151s a sufficient sirmlarity to justify or reasonably expect greater uniformity in approach between the two systems? Of particular interest is the question as to how far the law and politics of the European Union should influence the development of the wider international system? Are the two systems really that similar? And is it really that useful to think of EC law as a more effective - if only a regional - subset of the wider international system?

* Dr., Department of Law, University of Sheffield. I would like to thank Drs. Craig Barker and Chris Hilson, University of Reading, for their encouragement and advice during the preparation of this article. The usual caveat, nevertheless, applies. 1 D. Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for International Environmental Law', 93 American Journal ofIntemationalLaw (1999) 596-623 at 598. E. Denza, 'Two Legal Orders: Divergent or Convergent?', 48 International and Coqarative Law Quarter4 (1999) 257-284 at 284. 3 Ibid, 257.

Finnish Yearbook ofIntemaional Law (Vbl. XI2; 200 l )

Before trying to add something to this debate, it is necessary to say a brief word about the scope of this paper. Potentially, the paper could have examined any number of 'traditional' aspects of EC law-making and enforcement (such as the legislative procedures, the role of an independent Commission and direct effect), or broader theoretical issues of current interest in relation to the European Union (issues such as democratic deficit, legitimacy, citizenship and subsicharity) and considered their relevance to public international law. Any of these issues would have been useful to consider whether legal and political developments within the EU have had, are having or should have any influence on the future direction of international law. However, this paper will concentrate upon the concept of direct effect, viz., the ability of individuals, under certain circumstances, to directly rely upon Community law in national courts, often against their own governments, and occasionally against other individuals. To what extent might the concept of directly effective international law be of assistance in the wider international system? Of course, much of what this paper has to say is, by its very nature, speculative, but nevertheless the author considers it a useful 'device' through which to consider possible future trends. Two important caveats, nevertheless, should be added at this stage. First, it must be remembered that influences between the two systems are not simply oneway. The effect of international law upon EC law is equally worthy of study, and the rest section of this paper wdl therefore critically re-examine the claim of the European Court of Justice that Community law is not simply a regional system of international law, but rather a 'new legal order'.4 Moreover, as Denza made clear in her paper, there are certain 'ideals' - such as transparency in law-making and effective judicial supervision - that are not 'the monopoly of one or other legal order'.5 The second caveat is equally important. It is important to make clear what this paper is not saying; it is not saying that when some issue, such as direct effect, is incorporated into international law, thrs is necessarily because it was first conceived w i h the European Community. First, h s may be factually untrue (as arguably is the case with the concept of direct effect). And second, the influence of EC law upon international law should not be over-exaggerated. After all, we are only t a h g at present of fifteen States (soon to be twenty-five) out of an international community of nearly two hundred. Even if such States are some of the most influential in the global order, the impact of their own 'club' upon the wider system should not be presumed.6 What h s paper is trying to do is sound a note of caution; See D. Wyatt, 'New Legal Order, or Old?', 7 Empean Law Review (1982) 147-166 at 147. 'Two Legal Orders', sttpra note 2, at 284. 6 As Barker notes, '[whilst] European Union law is undoubtedly an example of where international law can lead given the relevant liberal conditions . . . it is misleading to regard it as the archetype of the 4

5 Denza,

The Interaction of Commzlnig and International Law

333

it is trying to argue that to import the methods and concepts of one system into another without due thought and investigation may well be an unwise development. It would be both presumptuous to hold up Community law as the only nght model for the future duection of international law, and it neglects the very different socialeconomic and geo-political contexts in which Communitv and international law must operate.

Community Law - New Legal Order or Regional Sub-system? The status of Community law is of great interest both to the Community and international lawyer.' It is arguably impossible to acquire a complete understandmg as to why and how Community law operates as it does unless one fully appreciates its position within, what might be termed, the wider legal schematic. Or to put it another way, '[ils EC law stdl a species of international law or has it grown into a separate and distinct system?'8 One's answer to that question, of course, depends upon one's legal background and perspective. The international lawyer would point to the fact that the European Community and the European Union were both developed through 'traditional' international legal procedures, viz., the negotiation and adoption of international agreements. The 1950s founding treaties, as amended by, inter alia, the 1986 Single European Act, 1992 Treaty on European Union, 1997 Treaty of Amsterdam and the 2000 Treaty of Nice are all examples of bona fide internationally binding treaties; international law remaining the only way sovereign States can bring themselves together in a binding legal relationship. On one level, at least, the international lawyer could therefore ignore all subsequent 'internal' developments within these r e p e s (such as the development of the supremacy of EC law and the doctrine of duect effect) and rest safe in the knowledge that the foundmg treaties could only be amended through international legal mechanisms. However, even an international lawyer such as this -and one must surely doubt the likely existence of such a colleague - would not be able to neglect the jurisprudence of the European Court of Justice on the question of the normative status of EC law. International lawyers like to dunk of themselves as having a more

international law of the future'; C. Barker, IntemationalLaw and IntematzbnalRebtions (Continuum: London and New York, 2000) at 81. 7 This paper refers to EC/Community law rather than EU law as the issues discussed relate principally to the European Communities, as compared with the broader structure of the European Union. 8 D. McGoldrick, International Rebtions Law of the European Union (Longman: London and New York, 1997) at 23.

334

Finnixb Yearbook of International laz (Vol.XI., 2001)

important role than simply interpreting and applying international law. T o many, international law has a quality over-and-above that of the rules that comprise it. As Alvarez recently noted, '[ilnternational lawyers . . . are o n a mission to improve the human condition . . . we still worship at the shrine of global institutions like the UN'.' The reasonkg, however, in a number of cases before the European C O Uof~ Justice (hereinafter 'Court of Justice') is less a reaffirmation of the importance of the Community's debt to international law, but rather a determined snub towards the international legal system and one of its most cherished values, retaining cohesiveness within that very system. Through such notable cases as Van Gend en Loos," Costa v. ENEL," and later in Opinion 1/91 on the Dr@ E~lmpeanEconomic Area ~reaty,'~ the Court of Justice has taken the opportunity offered to it by the fact that the 1957 Treaty of Rome and the other founding Treaties were silent as to the nature of Community law, and created a new legal paradigm. It might be helpful to remind ourselves what these three important cases did actually say. First, Van Gend en Loos. [tlhe objective of the EEC Treaty, whch is to establish a Common Market . . . implies that this Treaty is more than an agreement which merely created mutual obligations between the contracting states. . . . It is also conhrmed more specifically by the establishment of institutions endowed with sovereign rights. . . . The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have lunited their sovereign rights, albeit within h i t e d fields, and the subjects of which comprise not only Member States but also their nationals.l3 Equally as important was the reasoning of the Court of Justice in Costd v. ENEL: By contrast with ordmary international treaties, the EEC Treaty has created its own legal system whch, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. . . . By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity . . . and real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights,

9 J.

Alvarez, 'Multilateralism and Its Discontents', 11 E~ropeanJot/maI ofIntemationaZlaw (2000) 393-411 at 394. 10 Case 26/62 V a n Gend en Loos v. Nederkzndre Administruttie der Behtingen [l 9631 ECR 1. 11 Case 6/ 64 FIaminio Costa v. ENEL [l 9641 ECR 585. l2 Opinion 1/91 [l9911 ECR 1-6079. 13 V a n Gend en Loos, sqra note 10, at 12.

The Interaction ofCommuni9 and International LaM,

335

albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.14

And finally, in Opinion 1/71: [tlhe . . . Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order.l5

These are famous - and instantly recognisable - statements from the Court of Justice. But it might be useful to consider them once again afresh. What is it that the Court is saying here? What implications arise from the Community being designated a 'new legal order of international law' (later to become in Opinon 1/91 simply - but nevertheless in a highly symbolic change - 'a new legal order')? The Court of Justice suggests two key characteristics that distingwshes the treaties that established the European Communities from 'orhary international treaties', namely the transfer of a certain amount of sovereignty from the Member States to Community institutions and the inclusion of individuals as subjects of EC law.

Transfer of Sovereignty Unlike other international agreements, the Court of Justice says the founding treaties of the European Communities involved the passing of sovereignty from the Member States to the central institutions. All three judgments explicitly refer to this process, each case buildmg upon the language of the earlier jurisprudence. Van Gend en Loos talks, for example, of the 'establishment of institutions endowed with sovereign rights', for the sake of which 'states have limited their sovereign rights'. Similarly, the Court of Justice in Costra v. ENEL noted that the Member States have created a Community, the defining characteristics of which include it being of 'unlimited duration', and possessing 'its own institutions, its own personality, its own legal capacity . . . and real powers'. What makes powers 'real' is unclear, but the source of such powers is by virtue of a 'transfer . . . from the States to the Community'. Opinion 1/71 goes so far as to refer to the 1957 Treaty of Rome as a 'constitutional charter'. The notion of sovereignty, therefore, is central to the normative status of EC law. Sovereignty has been defined by one commentator as 'the residuum of power which [a State] possesses w i h the confines laid down by international law7.16And Costa v. ENEL, s@ra note 11, at 593. Opinion 1/91, sqbra note 12, at 1-6102. 16 I. Shearer, Starke's IntemationalLazv (ll th edn, Butterworths London, 1994) at 91. '4

15

336

Finnish Yearbook:oSfntemationaZlaw (Vol. X f l , 2001)

whilst sovereignty should not be thought of as a commodity that can be traded, this functional defLnition does highlight the important fact that sovereignty is not an absolute. The extent of a State's sovereignty is dependent upon the state of international law at any particular time. Proponents of the Court of Justice's view would note that as State sovereignty is not an absolute, the founding treaties simply 'transferred' certain sovereign powers from individual States to the institutions of the Community. An alternative way of saying the same thing is that the Treaty of Rome 'pooled' a certain amount of Member States' sovereignty. Of course, the tradtional argument against h s has always been that the treaties make no mention of such an important shift and that the Court of Justice was simply creative in its reasoning. This may well be true, but for those with an international legal perspective, there is another argument against too ready relying upon h s idea of transfer of sovereignty. In Costa v. ENEL, the Court of Justice talked of the establishment of a Community of 'unlimited duration' with 'its own institutions, its own personality, its own legal capacity . . . and real powers'. For an international lawyer, this could well be a description of the United Nations. The 1945 UN Charter is unlimited in length, it established a Security Council, a General Assembly and an International Court of Justice amongst other bodies, it possesses international legal personality,l7 and it is at least arguable that it possesses 'real powers7.18But we do not usually say that the UN possesses sovereign powers. Sovereignty is a characteristic of an entity being a State. As Crawford notes, a 'more satisfactory meaning [of the term is] as an incident or consequence of statehood'.*g Some might respond and say that the European Community/Union is of a fundamentally dfferent order to the United Nations. The scope of matters that it covers is wider, the amount of secondary rules it adopts is more numerous, the likelihood of decisions being taken that bind its Members without their consent is sipficantly higher. It is therefore more appropriate to talk about the relationship between Member States and the institutions of the European Union in terms of a transfer of sovereignty. But for this author, these characteristics are simply exaggerated examples of what the United Nations does. In other words, it is simply a matter of degree, not of fundamental dfference between the two.

See Reparationsjir Injun'es Safered in the Service of the United Nations, Advisory Opinion, ICJ Reports (1949) 174, at 179: 'the [United Nations] Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane'. 18 Article 25 UN Charter: T h e Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter'. '9 J. Crawford, The Creation ofstates in Intemationalb (Clarendon Press: Oxford, 1979) at 71. l7

The Interaction of Commzinig and International Law

337

Critics might reject this argument out of hand and say that you cannot seriously compare the UN and the EC in this way; that whereas the UN is classic example of an intergovernmental organization, the EC is significantly more supranational in character. They might point to the fact that European Community possesses an independent Commission. W s t this is an important distinction, I would want to make two brief comments. First, the Court of Justice makes no reference to this in its assertion that a certain amount of sovereignty has been transferred from the Member States, simply that the Community has 'its own institutions'. No special mention of the Commission is thought necessary. And second, to what extent should the UN Secretary General be considered comparable to an independent institution? Article 100.2 UN Charter states: 'Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and his staff and not seek to influence them in the dscharge of their responsibilities'. Moreover, the nature of the organization (viz., whether it is more intergovernmental or more supranational in character) is a dfferent argument; what I am saying is that one cannot justify a 'new legal order' on the basis of the Court's arguably reductionist analysis of a transfer of sovereignty. From what it said, either all international organizations that meet the Court of Justice's criteria must possess sovereignty -thus somewhat equating sovereignty and international legal personahty - or for some reason, whilst the UN and presumably other international organizations do not, the European Community does. I do not want to cast in stone my opinion on h s issue, I simply suggest that on this singular point the reasoning of the Court of Justice is less than conclusive.

Individuals as Subjects of Community Law The second key characteristic, according to the Court of Justice, which distinguishes the European Community from other international entities is the issue as to who are its subjects. The traditional approach in international law, of course, is that the international community is composed of sovereign States, and organizations and other bodies that possess international legal personahty. As Brownhe notes, '[a] subject of the law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringmg international c1aims7.2OIn V a n Gend en Loos and Costa v. ENEL, the Court of Justice departs from this traditional perspective noting that the Treaty of Rome is 'more than an agreement whch merely created mutual obligations between the contracting states' and that it created a 'legal system which . . . [is] an integral part of the legal systems of the Member States and which their courts are bound to apply'. On the basis of such reasoning, the Court of Justice concluded that the Treaty 'constitute[d] a new legal 20

I. Brownlie, Principles ofP~blicIntemationalLw (5th edn, Oxford University Press, 1998) at 57.

338

Finnish Yearbook of International Law (Vol. XII, 200 1)

order of international law . . . the subjects of which comprise not only Member States but also their nationals', or in the words of its decision in Costa V. ENEL, 'created a body of law which binds both their nationals and themselvesJ. This was further supplemented when the Court of Justice noted that 'Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage7.21 More recently, in Opinion 1/91, the importance of the inhvidual as a subject of EC law was implicitly supported by the idea, already mentioned in this paper, that the Treaty of Rome was the 'constitutional charter of a Community based on the rule of law'. As a question of semantics, the wordmg in English of the full phrase is interesting; 'the . . . Treaty, albeit conchided in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law' (itahcs added). The phrase 'albeit concluded' arguably highhghts the belief w i h n the Court of Justice that international law, whatever once was its importance in relation to the Community, is now not considered a significant factor in its current development. This is surely not a reference simply to a Community comprised of Member States, but rather to a wider and more complex structure including both Member States and natural and legal persons. But the question for this paper, in discussing whether the Treaty of Rome established a 'new legal order', is whether individuals were ever intended to be made subjects of Community law? With no travtazlxpr@aratoires for the founding treaties it is very difficult to discover what the opinions were of the original Member States. Nevertheless, if counsel for the Netherlands in V a n Gend en Loos are to be believed, the Dutch Government - one of the origmal signatories to the Treaty of Rome had never intended to create anything other than a 'traditional' international agreement, which gave individuals no enforceable rights. Of course, the elaboration of the notion of l r e c t effect, where indwiduals enforce EC law in national courts is, for many, good evidence of an intention to include individuals as subjects. But this argument is wholly circular; the Court of Justice only came to the conclusion that certain provisions were directly effective on the basis that Community law was a 'new legal orderJ. It was only by distancing itself from international law proper that the Court of Justice felt able to develop the doctrine of direct effect. As will be discussed later, this need to distance itself from international law may well have been unnecessary. However, for present purposes, it is enough to point out that international law has often granted rights and imposed obligations on individuals without arguably bestowing the status of 'subject'. The development of human rights law, and the increasing use of international tribunals to determine individual responsibility for war crimes and other breaches of international humanitarian law is strong evidence of that. And wldst this view is, of course, 21

V a n Gend en Loos, szcpra note 10, at 12.

The Interaction of Communig and International Lazv

339

subject to much criticism and debate,z we are still left with the issue as to why the Court of Justice felt it necessary to broaden the range of subjects under Community law. It is important to make clear what I am not saying. I am not saying that the Court of Justice was wrong to develop the doctrine of h e c t effect. Nor am I saying that the Court of Justice was incorrect to decide that individuals had specific rights and obligations under t l s new 'legal heritage', known as Community law. As the Court of Justice noted in V a n Gend en Loaf that '[tlo ascertain whether the provisions of an international treaty extend so far [so as to permit 'Article 12 . . . direct application in national law7 it is necessary to consider the spirit, the general scheme and the wording of those provisions7.23 Tlus is a generally reasonable statement of the requirements of international law, though it omits to note that such factors are simply a means of deducing the intention of the States involved.24 What the Court of Justice does, however, is to equate 'direct application' (better known as 'direct effect') with giving individuals the status of 'subject'. It is h s presumption by the Court of Justice that these concepts must exist concurrently which is presently being questioned. As with the reasoning of the Court of Justice as regards the issue of the transfer of sovereignty from Member States to Community institutions, it is not at all clear why the Court of Justice felt it was legal4 necessary to make indwiduals 'subjects' of &us 'new legal order'. For some, my argument may well be seen as an indefensible position to hold; that it is obvious from the text of the Treaty of Rome that h s was never intended to be an 'ordinary treaty' - possible reference being made to the ubiquitous phrase 'ever closer union' in the preamble, or that European legislation (in the form of decisions) could be addressed to specific legal and natural persons, or the relevance to the indvidual of numerous judicial procedures, such as the abihty to challenge the legality of Community legslation.25 Yet, for an international lawyer, h s adds little to the debate. No one is denying the Treaty of Rome created new rights and obhgations for individuals. The issue is whether the Court of Justice was correct, because of this, to then accord 22 Of course, it has often been argued that the development of international law so as to grant such rights and impose such obligations is evidence of a fundamental refocusing of the subjects of international law to include individuals. Moreover, for some, the subject/object dichotomy is meaningless. As Higgins notes 'the whole notion of 'subjects' and 'objects' has no credible reality. . . . It is more helpful, and closer to perceived reality . . . [to acknowledge that] there are a variety of participants [including individuals]' (see R. Higgins, Problems and Processes: International Lazv and How We Use It (Oxford University Press, 1994) at 49-50. 23 V a n Gend en Loos, szpa note 10, at 12. 24 See Jzlnsdiction ofthe Cozlzts o f D a n ~ k PCIJ Series B, No. 15 (1928), discussed further below. 25 See Article 230(4) EC: 'Any natural or legal person may . . . institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former'.

340

Finnish Yearbook of International Law (Vol. XII, 200 1)

indwiduals with the status of 'subjects'? As Professor Brownlie notes, 'to classify the individual as a 'subject' of the law is unhelpful, since this may seem to imply the existence of capacities which do not exist and does not avoid the task of distingu~shingbetween the individual and other types of subjectsy.26Member States and their nationals have very different rights and obligations within the European project; the most hndamental difference being the right of Member States actually ~~ as to amend - or even repeal- the 'European projecty a l t ~ g e t h e r .However, Pescatore notes, the inclusion of indtviduals as subjects has more to do with politics, than law. As he comments, this 'was . . . a highly political idea, drawn from a perception of the constitutional system of the Comm~nity'.~8 Whatever was the situation at the start of the Community, it is very obvious that the debate has moved on. The role of individuals within European institutions has progressed sipficantly beyond that of simply being an occasional litigator before the Court of Justice. The direct representation of individuals within the European Parliament since 1979 and the creation of European citizenship in 199229 are surely of significance in this regard, though how far even these developments should result in regarding individuals as 'subjects' remains unclear. Ultimately therefore, the most that can be said is that by bestowing the status of 'subjects' on individuals, the Court of Justice has further dtstanced itself and Community law from general international law. In summary, whilst the Court of Justice has declared Community law to be a 'new legal order', a more independent observer might be wise to be slightly more hesitant in coming to h s judgment. Though it easy to accept what the Court says on this point - many Community lawyers often reciting it as a statement of faith I think it is worthwhile to step back and consider the issues afresh. In particular, it is fair to say that the foundations on which such distinctiveness is based are not as solid as one might have thought (or possibly would have wished). Nevertheless, the differences between Community law and international law have become, over the decades, readily apparent. Questioning the existence of a 'new legal order' does not necessarily undermine what the Court of Justice has done subsequently, but it does raise once again the status of Community law within the broader international legal system. And whilst it may be valid to ask what is the consequences of all this for Brownlie, Principh, qhra note 20, at 66. Though as with the UN Charter, there are no express provisions within the Treaty of Rome for this eventuality. The situation would be governed by the 1969 Vienna Convention on the Law of Treaties and customary international law. 28 P. Pescatore, T h e Doctrine of 'Direct Effect': An Infant Disease of Community Law', 8 Ezlropean Lazv Review (1983) 155-177 at 158. 29 Article 17(2) EC (ex Article 8(2)): 'Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby'. 26

27

The Interaction of Conznz~ni~y and International LdZV

34 1

international law, it is worth rernindmg ourselves of the extent to whlch EC law has departed from some of the tradtional precepts of intemational law as we consider the argument that EC law has sometlung to offer international law. The remainder of this paper, therefore, will examine whether one of the most important of these alleged differences (viz., direct effect) should be incorporated into international law, more widely.

Direct Effect: The Defining Difference? For Community lawyers, the central plank w i h the historical development of a more 'sophisticated' legal order for the European Community must inevitably have been the elaboration of the doctrine of direct effect. The ability of individuals to rely upon Community law in its own right within the national courts of Member States is - or at least is perceived to be - a significant and fundamental development from the reciprocity and intergovernmentalism of public international law. In particular, as has been mentioned above, direct effect has been used as a means to highlight the existence of the 'new legal order' within the Community, and compare it with the 'tradtional ways' of international law. But as was also noted above, this use of direct effect is ultimately false as it is very clear from its reasoning that the Court of Justice premised the existence of the direct effect of EC law upon the basis that the Treaty of Rome had created a new legal order, and not the other way around. Nevertheless, as Boch has noted, '[dlirect effect as a constitutional principle of the EC legal order, or as a constitutional characteristic of EC law, is no longer disputed'.30 The purpose of &us section, therefore, is not to go over well-trodden ground, but instead, to consider the doctrine of direct effect in terms of its possible efficacy if more widely adopted w i h international law. Could direct effect be the tonic for all the ills of a system that is perceived to be lacking? Is it even possible that direct effect could have the dual effect of improving the enforcement of intemational law whilst at the same time 'democratizing' the system by incorporating and formalizing the role of indwiduals within a system that has tra&tionally been State-centric? If Community law is seen a model for the future direction of international law, then direct effect must surely be the primary 'cand~date'for a cross-jurisdxtional transfer. It may be useful to highlight some of key features of direct effect as it currently exists within Community law. This is not intended to be a comprehensive review, or a complete summary of the issue, but rather to highlight those aspects which are pertinent to a discussion about the potential utility of direct effect for international law. First, it is generally agreed that not all Community law is directly effective. 30 C. Boch, 'The Iroguois at the I;(irchbe7g,Or, Some Naive Remarks on the Status and Relevance of Direct Effect' in J. Usher (ed.), The State ofthe European Union (Pearson Education: Harlow, England, 2000) at 21.

Finnish Yearbook of International Ldzv (Vol. XII, 200 7)

Tradtionally, the case-law of the Court of Justice has been interpreted as laymg down three 'hurdles', viz., that the provision is sufficiently clear and precise, that the provision is unconditional, and that it requires no subsequent implementation by the Member States. How strictly the Court of Justice and national courts have interpreted these requirements is open to much debate. It is arguable that these 'hurdles' are not substantive rules in their own right, but simply a means of testing the justiciability of a provision of EC law. As one advocate-general has put it, these rules may simply be a way of determining whether a provision of Community law is "sufficiently operational' in itself to be applied by a [national] court7.31 Second, whilst V a n Gend en Loos was concerned with the question as to whether a provision of the founding 1957 Treaty of Rome could be directly effective, since that time the Court of Justice has accepted that the principle of direct effect also applies to secondary legslation adopted by Community institutions. Importantly, the Court of Justice has decided that directives can be directive effective. Directives are binding on Member States as to the result to be achieved, but leave it to the Member States themselves to determine how best to achieve the result." This is an important development as duectives are one of the most important types of secondary legislation. The direct effectiveness of directives and the underlymg judcial theory justifjmg this development is mentioned further below. Thud, the Court of Justice has partially endorsed the notion that Community law can be used by individuals in national courts not only against governmental agencies (referred to as 'vertical' direct effect), but in certain cases of Community law -the most important exception being directives - can also be used against other individuals ('horizontal' direct effect). This is an important extension of direct effect as indwiduals are not only being given a right to rely directly on Community law, but indwiduals can also be held accountable by other individuals in national courts under laws adopted by procedures other than their own national legslative processes. And fourth, it is important to r e c o p s e that whilst it is national courts which are empowered by the doctrine of direct effect, the Court of Justice has sought to ensure a certain level of consistency of practice. This it has done through the preliminary reference procedure under Article 234 EC, which allows national courts to seek opinions from the Court of Justice on any matter of interpretation of Community law. This is an important link between national courts and the Court of Case C-128/92, Banks v. British Coal [l9941 ECR 1-1209 at 1237' per A-G Van Gerven; see P. Craig Text, Cases and Materiah (2nd edn, Oxford University Press, 1998) at 169 and G. de Bfirca, E U h: footnote 9. 32 Article 249(3) EC: 'A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods'. 31

The Interaction of C o m u n i g and IntemationaZ LdZV

343

Justice, allowing the Court of Justice both to continue to influence the development of the jurisprudence of the Community and also to ensure national courts interpret and apply EC law correctly.33

International Law and Direct Effect However, before one can presume that the Community may have something to offer international law, one must be sure that direct effect is actually the progeny of Community law. And as thts paper has already hinted at, such a claim of ownershp is seriously questionable. Over three decades before the seminal decision in V a n Gend en Loos, the Permanent Court of International Justice had already acknowledged in Jum'sdiction of the Coalits of Danqy4 the possibility of gving individuals international rights that could be enforced by national courts.35 As the Permanent Court noted, whilst there was a 'well-established principle of international law, that [international agreements] cannot, as such, create direct rights and obligations for private ind~viduals', that did not necessarily exclude the 'adoption by the parties of some definite rules creating individual rights and obligations and enforceable by the national courts'.36 As Wyatt comments, whilst the Permanent Court 'assumes that the only direct rights and obligations are those of the parties to the Agreement . . . [tlhe rights of individuals arise indirectly as the result of the obligation of the parties to grant certain rights under national law'.37 Importantly, the Permanent Court was at pains to stress that this creation of indvidual rights and obligations was a departure from the normal rule and will only be justified if '[tlhe wording and general tenor' of the treaty can establish that it was the 'intention of the Contracting Parties' to create such individual rights and obligations.38 Moreover, the Permanent Court, obviously realising the distinct nature of its ruling, noted that the effect of conferring such rights on indmiduals was to create a 'special legal reguneY.39What the Court meant by t h s is unclear, but it 33 See Craig and de BGrca, EU h, sztpra note 31, at 407: the procedure 'has also been one the principal vehicles through which the ve9 rekationsbip between national and Commxni~legal systems hm been fmhioned' (authors' italics). 34 See Jurisdiction ofCouds ofDanv& sztpra note 24. The facts of the case were set out by Wyatt, 'New Legal Order', sztpra note 4, at 150: 'Certain railway officials had passed from the service of the Free City of Danzig into the service of the Polish Railways. In the view of the Danzig Government, the effect of the Danzig-Polish Agreement of October 22, 1921 was to establish the conditions of service for such employees. The agreement had not, however, been implemented by Polish legislation'. 35 See M. St Korowicz, 'The Problem of the International Personality of Individuals', 50 American Journal ofInternationalL.uw(1955) 533-562. 36 See Jurisdiction oftbe Couds ofDan?& sqra note 24, at 17-18. 37 Wyatt, 'New Legal Order', szfpra note 4, at 151. 38 See Jurisdiction oftbe Courts ofDanvS, szfpra note 24, at 17-18. 39 Ibid.

344

Finnish Yearbook oflnemational law (VoL XII, 200 1)

inevitably carried the implication that the Court assumed such international agreements were not the norm in international law. Professor Wyatt was surely right when he commented that the European Commission - when arguing before the Court of Justice in V a n Gend en Loos - did not justify direct effect upon the basis of its previous use in international law because 'traditional international practice would reveal the rarity of [such] treaties'.a One then returns to the question as to how the Court of Justice in V a n Gend en h found direct effect so easily from the 'wording and general tenor' of the Treaty of Rome? Arguably, as has often been suspected, legal interpretation was utilised for the purpose of defining a particular vision of the Community; a vision shared by the Commission and the Court of Justice. Moreover, since that time - despite the fact that the Court of Justice, as noted above, has laid down certain 'hurdles' over which Community law must pass - the trend has been to fmd direct effect in the majority of cases. As Craig and de Btma note, 'the Court's elaboration of these specific criteria for direct effect did not hinder its extension to a very wide range of Treaty provisions, and . . . to various other forms of Community lad.41 This abihty of national courts to enforce Community law dtrectly does depend, of course, upon the wdhgness of national courts to ualise such authority. Despite an obvious hesitancy at the start as to the scope of this new power, courts of Member States have ready adopted and relied upon the concept of dtrect effect.

The Possibilities for Direct Effect in International Law Direct effect is therefore not unknown in international law. But it is certainly not a common feature of the international landscape." The question then becomes, should it be? Does not direct effect have numerous benefits for such a decentralized system of law? One of course cannot deny that enforcement of international law against States by individuals in their own courts may well be a sipficant improvement upon a system noted for its lack of judcial enforcement." However, to consider dtrect effect as simply a means of allowing individuals to enforce rights given them under international law is to neglect a plethora of other issues. One should remember what the Permanent Court - much more so than the Wyatt, 'New Legal Order', sqbra note 4, at 151. Ibid. 42 The related doctrine of self-executing treaties is discussed below. 43 A.-M. Slaughter, 'International Law in a World of Liberal States', 6 Ewqean J o ~ m a of l International L a w (1995), 503-538, at text accompanying footnote 63: 'International lawyers have long recognized the inferiority of this system [viz., 'horizontal counter-measures'], and thus have sought to rely on a general norm of enforcement of international obligations through domestic courts . . . the proposition here is that where available, vertical enforcement is the most secure means of assuring compliance with international agreements'. 40

41

The Interaction of Communi~and Internationak L a w

345

Court of Justice - stressed; direct effect is 'intentional'. Direct effect should not be presumed where there is no evidence that that was the intention of the parties. Whatever the merits of the Danzig railways workers' argument, the Permanent Court looked at the 'wording and general tenor' of the treaty between Poland and the Free City of Danzig to discover if it was their intention to 'open-up' the treaty in &us way. Of course, one cannot deny that in searching for a just result, the Permanent Court would have been well aware of the consequences of not making the agreement directly effective. Nevertheless, it is very clear from the case that the Permanent Court did not want to open the door too widely to duectly effective international law; such a development being contrary to 'well-establishedprinciple'. The approach of international law - if empirically based on only one case - is in duect contrast to the more purposive interpretation given by the European Court of Justice. The Court of Justice has been conspicuously less concerned about the parties' intentions, though some would suggest that judrcial interpretation of 'legislative intention' is inevitably an implicit process." Nevertheless, the reasoning of the Court of Justice arguably betrays even an implicit attempt to discover legislative intent. [A]s the Court has already found in other contexts, the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down.45

There is little mention here of the Member States' intention; rather, a purposive and teleologd attempt to justify direct effect through the Court's continued reference - even if, in h s case, implicit - of the 'new legal order' created by the Treaty of Rome. A related reason for this lack of emphasis on 'intention' is inevitably the fact that duect effect has often been perceived simply in terms of a more effective means of enforcing Community law. As the Court of Justice noted in Van Gend en Loor, '[tlhe viglance of individuals concerned to protect their rights amounts to an effective supervision in addrtion to the supervision entrusted . . . to the ddigence of the Commission and of the Member States'. Direct effect thereby becomes remedial. In contrast to the lengthier and more political procedures under Articles 226, 227 and 228 EC allowing the Commission and/or Member States to bring an action before the Court of Justice to enforce Community law against other Member States, direct effect (along now with State liability under the Francovicb principles46) 4 See C. Hilson and T. Downes, 'Making Sense of Rghts: Community Rights in EC Law', 24 Etlropean Law/ Review (1999), 121-138 at 123. 45 Case 43/75, Defrenne v JABENA [l9761 ECR 455. 46 Joined Cases C-6&9/90, Franco& v Itah [l9911 ECR 1-5357, as interpreted by subsequent case-law.

346

Finnish Yearbook ofInternational Lazv (Vol. XII, 200 1)

encourages a more decentralized -arguably, a more effective- system of 'supervision'. And this emphasis on enforcement has become more prominent since the Court of Justice recopsed that directives could also be directly effective.47 The principal justification for holdmg directives to be potentially directly effective is grounded in estoppel; a Member State should not be able to restrict the effect of a directive because it has failed to implement - or implement properly - a directive.48 Reliance by the Court of Justice on estoppel-based arguments seems a priori to exclude an 'intentional' approach to direct effect. Direct effect being 'gven' not because of any attempt to examine the intentions of Member States, but rather to prevent Member States benefiting from their failure to comply with Community law. So what might h s all mean for greater reliance of direct effect in international law? The most obvious point is that the formulation and understanding of direct effect in Community law has significantly surpassed anydung yet known in international law. Four key differences may be surmised. First, as noted above, the purpose of making Community law directly effective was, especially in the past, integrally related to the aim of making Community law more efficacious, rather than explicitly related to the intention of the parties.49 Second, the Court of Justice has ruled that certain 'types' of Community law (including the foundmg treaties) have 'horizontal' effect, ie. that individuals can rely on Community law against other individuals. Third, therefore, direct effect may result in the imposition of obligations upon certain individuals as well as conferring rights upon others. And fourth, the Community -through the Court of Justice- has been able to regulate the development of direct effect through the prelimmary reference procedure under Article 234 EC. As was noted above, these are defining characteristics of the Community's approach to direct effect; whether a simdar system could work at the international level is less clear. Whilst superficially it might appear advantageous to decen~ahze the enforcement of international law in a sirmlar way, one must question both the actual effect it could have and the political impact that would ensue from relying on such a means of enforcement. An initial reaction may be that intemational law - both in its conventional and customary form - is less susceptible to domestic juhcial enforcement because it suffers from a level of generality (even vagueness) that is perceived not to present in a sipficant proportion of Community law. This For an early case, see Case 41/74, Van D y n v Home O@ce [l9741 ECR 1337. Case 148178, P~bblicoMinistero v Ratti [l9791 ECR 1629: 'a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails'. 49 The introduction of the concept of citizenship of the Union may provide the C O Uof ~ Justice with an opportunity to refocus direct effect away from notions of procedural effectiveness to broader ideas centred around constitutional guarantees and the rule of law. 47 48

The Interaction of Commnnio and International Law

is surely a valid argument; but one that should not be stretched too far. It would be a mistake to parody Community law as a model of clarity whereas international law is bedevdled by uncertainty. Instances can be found in both legal systems of the two extremes of definite commitments and indeterminate objectives. As Boch notes, 'most EC provisions lack specificity, be it the Treaty . . . which for the most part required further action, or directives which merely lay down an obligation of result7.50Moreover, the Court of Justice and the national courts of Member States have on numerous occasions shown a wdhgness not to be over-constrained by a literal reading of Community law and found direct effect in instances where the generality of the language may have been considered an insurmountable obstacle.51 Nevertheless, the commitments contained within Community law (especially secondary legislation) and obligations within international law are often very hfferent, and consequently, so are the rights which indwiduals are seeking to protect. Whereas Community law is concerned primarily with regulating a Member States' relationships with individuals -whether they be nationals from the other Member States52 or its own nationals53 - international law, on the whole, remains focused on inter-State relationships. Of course, with the proliferation of human rights and humanitarian treaties, the relationship between States and individuals in international law is becoming increasingly more relevant. However, &us remains the exception to the rule. Much of international law is stdl concerned with the regulation of relationships between - rather than direct4 w i t h - States.54 Issues as varied as disarmament, international communications, c h a t e change and economic assistance remain the priority for the international legal community. Whilst not denymg that these issues affect individuals, their impact is less duect, because first, the primary objective of such agreements is not necessady the protection, welfare or regulation of the individual, and secondly, much will depend upon how States implement such measures within their own territories. Such matters have traditionally been seen as non-justiciable within national courts as they are matters for the executive to the exclusion of the courts. It is not for domestic courts to enforce a p s t its own State commitments contained within such international agreements.

Boch, 'Status and Relevance of Direct Effect', sqra note 30, at 34. See, for example, the approach of the Court of Justice in Case 2/74, Ryners v. Belgm [l9741 ECR 631, in which the Court turned a Treaty objective (viz., non-discrimination against nationals of other Member States as regards freedom of establishment) into 'a precise result'. 52 See, for example, the rule against discrimination on grounds of nationality as contained in Article 12 EC. 53 See, for example, such provisions as the Community's rules requiring equal pay for equal work between the sexes (Article 141 EC). 54 This remains true notwithstanding the fact that many international agreements explicitly require subsequent domestic implementation measures. 50

51

348

Finnish Yearbook oflntemational LW (Vol XII, 200 l )

Moreover, what 'rights' do individuals have in the enforcement of such agreements? Whilst a strong case might be made for giving direct effect to human rights treaties, what case could be made for giving individuals similar 'rights' in more traditional 'intergovernmental' agreements? Unlike the agreement in Danqig, most international agreements do not envisage granting rights - even if they are only derivative of those of State parties - to individuals. To take disarmament as an example. W s t many individuals and groups of individuals have a 'political' interest in ensuring that their own State (as well as the wider intemational community) complies with its obligations under disarmament treaties, such an interest does not equate with the bestowal of legal rights (or irnrnunities).55 Whether one accepts it or not, the present state of international law remains State-centric. The justification, therefore, for allowing some form of direct effect in these situations would be based purely on the desire to improve compliance with international law. As is often perceived in relation to Community law, whether or not the legal provision in question grants the individual a 'legal' right is of secondary importance to whether or not the provision should be made d.u-ectlyeffective.

The Limitations of Direct Effect for International Law Unless one is to call for the complete restructuring of the system of international law, supporting direct effect simply as a means to improve enforcement is a misguided endeavour. This is particularly so for three inter-related reasons, each of which shall be discussed briefly.56 The first reason has already been alluded to; it relates to the fact that the negotiation of intemational law and subsequent compliance are primarily matters for the executive branch of government. Whilst not universally accepted, the tripartite division of jurisdiction between legislature, executive and judciary is a fundamental tenet of most nation States. If domestic courts were able to give intemational law direct effect,57 there is the danger that they would usurp the inherent dscretion of the executive to decide as to when and how to comply with international obligations, and with the role of the legslature to 55 The

decision of a Scottish criminal court in 1999 to accept the legality of criminal damage to nuclear submarines because the use of nuclear weapons was successfully argued to be unlawful under international law was rejected on review by a higher court as a valid defence in future prosecutions. As a government spokesman noted of the review decision, '[tlhe essence of [the] ruling is that to use the International Coua of Justice as a defence is not legitimate' (sic) (statement taken from , 13 August 2002). 56 The issue as to whether direct effect should permit the imposition of obhgations on other individuals (the 'horizontality' of direct effect) and-whether this is a good or bad thing is not addressed here as the arguments for-and-against are as applicable in international law as they are in Community law. 57 For the purposes of this argument, directly effective international law is assumed to have already been determined justiciable, maybe under a test similar to that applied to Community law.

The Interaction of Communig and International Law

349

implement international obligations within domestic law. As regards the executive, the notion of L'Etat, c'est moi continues very aptly to reflect the centrality of governmental power within the international legal system.58 Of course, all governments at some point will neglect - whether intentionally or not - the international obligations imposed upon their State; and some internal judicial supervision may well have a positive effect on that. This certainly has operated well at the Community level where both domestic courts and, by virtue of the prelirmnary reference procedure, the Court of Justice has been able to ensure the correct application of Community law. The respective executives -and legslatures - of the Member States have ultimately had no choice but to recognise that even their national courts r e c o p s e an authority that is beyond their direct control and influence. But on the international plane, the executive is less likely to be so quick to abrogate its rights. Most mainstream political parties within the Member States of the European Union would accept the value of the central objective of the Community, viz., the creation of an internal market and, to some extent at least, the development of an 'ever closer union' of peoples. For the attainment of these goals, Member States have been prepared on the whole to 'suffer' the creation of a relatively interventionist legal system, as elaborated largely by the Court of Justice. Such a basic consensus of purpose does not exist at the international level, and therefore States are less likely to accept such intervention. Many reasons might be put forward for this; but the most obvious is perhaps also the most important. Community law and international law are very different in nature and form; unhke Community law, international law is a legal ystem. This is not an attempt to invert Hart's use of primary and secondary rules,59 but rather to note that whilst international law is a process or structure through whch the international community can regulate any issue, Community law is specifically related to the attainment of particular objectives as laid down in its foundmg treaties. Direct effect has proved acceptable because Community law has boundaries. And whilst these boundaries are not always as clear as one might like, nevertheless they do exist. In international law, on the other hand, the only limitation that exists is political will. Who would have thought that we now have international agreements on such amorphous topics as the mining of the deep seabed, the protection of the climate, and the regulation of space?60 Similarly, if the Court of Justice were to try to extend direct effect into the largely intergovernmental second and third pillars of the Treaty on European Union, which relate to foreign and security issues and 58 Pescatore, T h e Doctrine of Direct Effect', qbra note 28, at 158: 'in the Community . . . Governments may not say any more what they are used to doing in international law: LEtat, c'est moz'. 59 See H. L. A. Hart, The Concept o f h w (2nd edn, Oxford University Press, 1994). 60 A supplementary issue being whether the international community would have adopted these agreements if there were a possibility of certain provisions therein being directly effective.

Finnii-b Yearbook: of lntemationajldw (Vol. XII, 200 1)

350

cooperation in criminal matters, it would likely fmd most -if not all - Member States s e e h g to amend its jurisdictional scope at the next intergovernmental conference. However, before rejecting direct effect on the basis that it infringes the discretion of the political branches of government, one should not forget that some States do operate some form of direct effect in relation to international law. The constitution of the United States, for instance, declares that 'all Treaties [of the United States] shall be the supreme Law of the Land'." It does so in order to: minimize treaty violations attributable to the United States, a goal that the Founders sought to advance by empowering the courts to enforce treaties at the behest of affected individuals without awaiting authorization from state or federal legislature^.^^

However, even in countries such as the United States that recognise 'self-executing' treaties, the right of the courts to enforce such treaties at the suit of individuals is not absolute.63 There are numerous reasons as to why a treaty might not be selfexecuting, includmg an intention on the part of the negotiating States not to make the treaty judicially enforceable, or because the wording and nature of the provisions thereof result in them being non-justiciable and therefore non-enforceable.64 Moreover, stm'cto senszt, the doctrine of self-execution is not one of international law; rather, it is a concept devised under national law. As Vazquez notes, 'treaties as a matter of international law are thought to confer rights only on states, domestic law regulates the legal relations of indmiduals vis-i-vis other individuals and g~vernrnent'.~~ The second related reason as to why direct effect might not be appropriate for international law generally is that judicial involvement might hinder the ability of a government-qzda-State to implement fully what might be termed its international 'strategy' - the ability of a State to achieve its international aims and objectives. T h s can best be seen in areas of economic and fmancial consideration. Ironically, a 61 Article V1 cl.

2 US Constitution, known as the 'supremacy clause'. 62 C. Vazquez, 'The Four Doctrines of Self-Executing Treaties', 89 American Journal ofInternationalLaw (1995) 695-723 at 696. 63 Ibid., 696: 'the doctrine of [self-executing treaties] allocates this responsibility [to the courts] only provisionally. Because of the last-in-time rule, under which a statute is to be enforced by the courts even if it conflicts with an earlier treaty, the legislature ultimately has the power to control the judiciary's role in enforcing even self-executing treaties. The doctrine of self-executing treaties thus serves to distinguish those treaties that require an act of the legislature to authorize judicial enforcement from those that require an act of the legislature to remove or modify the courts' enforcement power (and duty)'. 64 Ibid., 722-723. 65 Ibid., 695 footnote 7.

The Interaction of Communi~yand InternationalLW

351

recent decision of the European Court of Justice provides a useful illustration as to why directly effective international law is rarely accepted. The position of the Court of Justice on whether its doctrine of drrect effect applies to those intemational agreements to which the Community is a signatory is, it is fair to say, less clear than it might be. Of particular concern has been the question as to whether or not the General Agreement on Tariffs and Trade (GATT) is drrectly effective. In its decision in ~ortzga~ v. CounciP6 the Court of ~usticerevisited the issue focusing upon whether the changes made to the infrastructure surrounding the GATT by virtue of the establishment of the World Trade Organization (WTO)" were sufficient to alter its previous case-law on the issue. Whilst noting that significant institutional changes had taken place as regards the regulation of intemational trade,68 the Court of Justice noted that 'the WTO agreements, interpreted in the light of their subject-matter and purpose, do not determine the appropriate legal means of ensuring that they are applied in good faith in the legal order of the contracting partiesY.69Moreover, to require the C O Uof ~ Justice to implement such agreemeits would 'deprive the legdative or executive organs of the Community of the scope for manoeuvre enjoyed by their counterparts in the Community's trading partnersY.70Therefore, on the basis that the Community should not be unilaterally disadvantaged by the existence of a too interventionist judiciary, the Court held that the GATT was generally not directly effective? As one commentator notes, '[qt is clear that the Court's ruling is to a large extent inspired by political motives . . . to give leeway to the political institutions of the Community'.72 Case C-149/96 [l9991 ECR 1-8395. Despite the case being an attempt by a Member State to annul a Community decision, dkect effect was intrinsic to the case as the Court of Justice had previously held -reaffirmed in this case - that before the Court of Justice would utilise the provisions of an international agreement to review Community legislation, the provisions of the international agreement must first be directly effective. 67 See the Final Act and Agreement Establishing the World Trade Organization. (including GATT 1994), Uruguay Round, Marrakesh, 15 April 1994, 33 International Legal Maten'ak (1994) 1125; and related agreements. 68 In particular, the establishment of the new dispute settlement procedure under the WTO Agreement. 69 Portugalv. Counn'I, sqra note 66, at paragraph 41. 70 Ibid., paragraph 46. 71 The Court of Justice did r e a f f m previous case-law however in which it held that '[ilt is only where the Community intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules' (Ibid., paragraph 49). 72 G. Zonnekeyn, 'The Status of WTO law in the Community Legal Order: Some Comments in the light of the Portuguese Textiles Case', 25 European Lazv Review (2000) 293-203 at 302. See also J. Trachtman, 'Bananas, Direct Effect and Compliance', 10 European Jozlrnal of International Lazv (1999) 655-678 at 677: 'The EC and US have shown us . . . their positions on direct effect of WTO/GA?T obligations . . . it is a policy question to be answered in political terms'. 66

FinnijsGl Yearbook ofInternational Ldzv (Vol. X I . , 2001)

This is a classic example of judicial self-restraint in the face of political and commercial reality. And whilst as a lawyer one might dslike this apparent negation of the rule of law, it should be also be recognised that direct effect would give power to the judiciary away from the more democratically accountable structures of government. Particularly in relation to an area of international law such as the regulation of international trade, Trachtman is surely right to note that '[dlirect effect without more direct democratic participation in formulation of the directly effective law raises as many issues as it resolves7.73 The third reason as to why directly effective international law should be restricted to those lumted occasions as to when States intend to create such rights is the lack of a centraked reference point to whch a uniform and coherent understandmg of the law can be elaborated. Unlike Community law, international law has no facility for preliminary references. T h s procedure has undoubtedly been the most significant factor in the ability of the Court of Justice to shape a Community-wide jurisprudence. Doctrines such as the supremacy of Community law, State liability for breach of this law and, of course, dwect effect are all the result of the Court of Justice answering questions from national courts. The procedure also allows the Court of Justice to try to ensure a uniform and consistent approach to legal problems throughout the Community. Without such a procedure, therefore, direct effect would not only not have been adopted, but more importantly, its application could not have been 'monitored' as closely as it has. To suggest that international law more generally would benefit from it being more dwectly effective is to ignore the pivotal relationship between Community and national courts.74

Conclusion It has been the aim of this paper to reflect on the interaction between Community and international law. In many ways, the purpose of the paper was simply to scratch the surface of a much larger debate. The points at which the two systems 'touch' are both numerous and complex. Therefore, this paper looked at two particular areas where they do inter-relate. To start with the claim that Community law is a 'new legal order'. As this paper has hghlighted, the reasoning of the Court of Justice, whilst apparently justified on the basis of the 'necessity' of a unified Community legal system, is less convincing when seen in the light of international legal principles. The Court of Justice's discussion of issues such as the transfer of sovereignty and the status of indviduals within the Community is less a judicial

74 The issue therefore becomes whether international law would benefit from a procedure akin to Article 234 EC. The implications of such a development is beyond the scope of this paper.

The Interaction of Comm~nityand International Law

353

examination of the law, and more an attempt to separate the European Community from the wider international legal system. The Court of Justice used these foundational cases to create a political and juridical model distinct from that offered by international law. However, following the elaboration by the Court of Justice of this 'new legal order', Community law has over the last few decades developed at a dramatic pace. And one of the most important developments has been the judicial formulation of the doctrine of direct effect. Whdst not unique to Community law, its range and effect has been significantly extended by the Court of Justice. In an attempt to explore direct effect further, this paper sought to determine whether it had anything to offer international law. On the whole, the answer is no. The Court of Justice's emphasis on ensuring the efficacy of Community law -whilst superficially extremely relevant to international law - ignores numerous other issues. And as this paper has noted, unless one is to call for the complete restructuring of the global legal system, direct effect as a general principle of international law is a misguded endeavour. In concluding, one might say that whilst both legal 'orders' have much to say to each other - more than the Court of Justice, in particular, recopses ignoring fundamental differences can only hinder attempts at meaningful discourse.

This page intentionally left blank

The Limits of the Law on the Use of Force: Turkey, Iraq and the Kurds Christine Gray*and Simon Olleson**

I Introduction In April 2000 Turkey invaded the northern region of Iraq with thousands of troops in pursuit of Turkish Kurds belonging to the Kurdistan Workers Party (PKKJ.1 The , leader of invasion made it clear that the capture and trial of Abdullah ~ c a l a n the the PKK, in 1999 and hrs subsequent call for the PKK to abandon terrorist means in their pursuit of independence or autonomy had no effect in leadmg Turkey to abandon its long practice of the use of force agamst the PI=. Over the last twenty years, and especially since the Iraqi invasion of Kuwait in 1990, Turkey has mounted a series of massive cross-border raids into Iraq in pursuit of the P E ; these are comparable with those by Israel into Lebanon, apartheid-era South Africa into the fronthe states, and colonial Portugal against the neighbours of its colonies in Africa, all allegedly in pursuit of terrorist forces.2 These Turkish incursions amount to far more than 'mere frontier incidents', in the language of the International Court of Justice in the Militay and Paramilitay Activities case.3 However, in pronounced contrast to the hostile world reaction to the use of force by Israel, South Africa and Portugal,4 the international response to Turkey's actions has been extremely muted and lirmted.5 Turkey has escaped formal -

-

* Reader in International Law, Faculty of Law, University of Cambridge; Fellow of St. John's College,

Cambridge. ** BA (Hons.) (Cantab.); LL.M. (N.Y.U.); Barrister, Lincoln's Inn; Research Associate, Lauterpacht

Research Centre for International Law, University of Cambridge. 1 Keesing's Record of World Events (hereafter 'KeesingY), 43532; for Iraq's protest to the Security Council, see UN Doc. S/2000/306 and UN Doc. S/2000/353. 2 See C.D. Gray, IntemationalLaw and the Use ofForce (Oxford University Press, 2000), 15-16 and 99-103. 3 Midtay and Paramidtay Activities in and against Nicarag~a(Nicaraggzla v. United States ofhen'ca) &erits) ICJ Reports l986,l4, at 103 (para. 195). 4 See Gray, Use ofForce, sqra note 2,99-103, and the sources there cited. 5 A partial explanation for this difference in international reaction is that many states were not wilhng to accept a right for Portugal, South Africa and Israel to act in self-defence against attacks from

356

Finnish Yearbook

ofInternationalLaw (Vol XII, 200 l )

condemnation by the United Nations, particularly by the Security Council. Iraq has made fierce accusations of double standards regarding the differential treatment, contrasting the failure to act against Turkey in response to its invasions of Iraq with the action taken by the Security Council against Iraq following its invasion of Kuwait. Because these accusations have come from Iraq, whose own record with regard to the Kurds and to the use of force is less than impressive, they have lacked authority and attracted little public support. The purpose of this article is to examine whether the accusations of double standards are compelling, and to try to assess their sigmficance. The fate of the Kurdish people is caught up in a complex set of interrelated regonal dtsputes between Turkey and Iraq, Iraq and Iran, and Syria and Turkey. The picture is further complicated by the intervention of the USA and the UK in creating and maintaining the 'no-fly' zones following the Gulf War. States have adopted dramatically inconsistent positions in dtfferent dsputes; all these states, and others such as the former USSR and China, have used the Kurds, or rather particular factions of the Kurds, to further their own regional interests. They have offered support when convenient and withdrawn it again when it no longer serves their ends. In particular, Turkey has co-operated with its NATO partners, the USA and the UK,G to protect the Iraqi Kurds in the safe havens of northern Iraq agamst attack by the government of Iraq, whilst simultaneously it has sent large contingents of its army into the same area of Iraq in pursuit of the Turkish Kurds of the PKK. The USA and the UK assert the right to protect the Kurds7 in Iraq through their proclamation and enforcement of a safe haven and a no-fly zone in northern Iraq, apparently on the basis that they have the implied authority of the Security Council under Resolution 688 taken with Resolution 678.8 The United Kingdom has also developed a justification on the basis of humanitarian intervention.9 At the same time they acquiesce in the Turkish cross-border actions in pursuit of the PKK. Of course the self-interested practice of invoking the humanitarian needs of the Kurds when expedtent, and turning a blind eye when it is not, is not unique or surprising, although this is a particularly stark instance of an apparent double standard by all involved, including the members of the Security Council. What is more unusual is that Turkey seems to think that it need not offer any IegaI neighbouring states because their title to the territory which they claimed to be defending was in doubt. The lack of reaction to Turkey's incursions into Iraq is also in contrast to the reaction to Turkey's invasion of Cyprus; here Turkey has not been protected from condemnation despite its special position. Also in relation to Cyprus Turkey has repeatedly in recent years reaffirmed its legal justification for its 1974 invasion; see for example, UN Doc. S/1999/1214. 6 France participated in the enforcement of the no-fly zones until 1996. 7 There is a second no-fly zone in the south of the country below the 32nd parallel to protect the Shi'i. 8 SC Res. 688 (1991). 9 See Section V111 infra.

The h t s oftbe LdW on the Use ofForce: Tzlrky, I n q and the &rdf

357

justification for its use of force, that it is free from any need to defend its actions in widely-accepted legal terms; special circumstances have enabled it to avoid condemnation. It has not even paid lip service to the accepted international law on the use of force; it c e r t d y &d not attempt to rely on the then controversial doctrine of self defence against non-state terrorists. Similarly the USA and the UK have been slow to provide a fully reasoned justification for their use of force in the establishment and implementation of the no-fly zones. The question here is whether the fdure to use international law to justify the use of force is more objectionable than the manipulation of that law through the expansion of the concept of selfdefence; does the absence of reference to familiar doctrines bring international law into disrepute more than its manipulation? Both the USA and the UK have in the past shown a willingness to stretch the meaning of Article 51 of the Charter of the United Nations and the scope of the concept of self-defence; however, with regard to the Kurds and Iraq, they appear to have been either more cautious, or alternatively, and more worryingly, merely more unconcerned.

I1 Background (I): The Kurds until 194510 The Kurds are a distinct ethnic group,ll numbering about 26 million who occupy a mostly mountainous area whch spreads over northern Iraq, south-eastern Turkey and parts of Iran and Syria, with small populations in Armenia and Azerbaijan. They are the largest ethnic group in the Middle East without a state of their own. In recent years, division between factions within the Kurds has continued to prove as much an obstacle to any claim to statehood or to limited autonomy as in the period immediately after the First World War. The defeat of the Ottoman Empire in the First World War and its consequent dismemberment in the peace settlement at first offered the prospect of statehood for the Kurds. Having occupied the ~iIayets'2of Bagdad, Basra, and large parts of the viIayet of Mosul during the war of 1914-18, Great Britain remained in effective control of the territory of present-day Iraq. At the San Remo Conference in April 1920, Great Britain was allotted a League of Nations Mandate for 'Mesopotamia,

D. McDowall, The Kurdr W o r i t y Rrghts Group: London, 1996); G. Chaliand, The &r&sh Trage4 (translated by P. Black, Zed Books: London, 1994); P. Brogan, Worid Con@cts (3rd edn, Bloomsbury: London, 1998) 328. 11 However, there is no common language. 12 The vihyet was a territorial and administrative unit under the Ottoman Empire and is still the denomination of Turkish provinces. 10

358

Finnish Yearbook ofInternationalLdw (Vol. XII, 2001)

includmg Mosul'.13 The territory was subsequently renamed the Kingdom of Iraq following the Cairo Conference of March 1921; the crown was offered to Amir Faisal, a pro-westem Hashemite who was enthroned on 23 August 1921. A Treaty of Alliance setting out the terms of the Mandatory relationship was entered into by Great Britain and Iraq on 10 October 1922, initially for a period of four years, with a promise that Iraq would become independent.14 The Peace Treaty concluded between the defeated Ottoman Empire and the Allied Powers at SGvres on 10 August 1920 had, in accordance with President Wilson's Fou&een Point Programme for World Peace,l5 provided for the drafting of a scheme of local autonomy for the predominantly Kurd~shareas lymg east of the Euphrates, south of Armenia and north of the frontier of Turkey with Syria and Mesopotamia. Article 64 of the treaty provided I f withrn one year from the coming into force o f the present Treaty the Kurdish people withrn the areas defined . . . shall address themselves t o the Council o f the League of Nations in such a manner as t o show that a majority o f the population in these areas desire independence from Turkey, and if the Council then considers that these people are capable of such independence and recommends that it b e granted t o them, Turkey hereby agrees t o execute such a recommendation and t o renounce all rights and titles over these areas. [ . . . ] I f and when such renunciation takes place, n o objection d b e raised by the Principal Allied Powers t o the voluntary adhesion t o such an independent 13 For a brief historical account of the British invasion, the granting of the Mandate, and its termination in 1932, see C. Tripp, A Histor ofIraq (Cambridge University Press, 2000) 30-76. On the League of Nations Mandate system in general, see N. Bentwich, The M~ndatesSystem (Longmans: London, 1930), 1-20; and see at 52-69 in relation to its application in Iraq. 14 Treaty between Great Britain and Iraq, Baghdad, 10 October 1922, Lagtle ofNations O@n'aZ JotlmaI, 3rd year, No. 12 (Dec l922), 1505; 119 British Foreign and State Papers 389; 'Treaty Series No. 17 (1925)' (Cmd. 2370). Being concluded by treaty between the Mandatory Power and the mandated territory, the mandate was not in the normal form for 'A' Mandates; see further Bentwich, The Mandates $stem, sqra note 13, at 54-55. The British government communicated their intention to carry out their obligations as Mandatory via the treaty on 17 May 1923 (Leagtle ofNations O$in'aIJotlmaI, 4th year, No. 7 (July 1923), 728); an abbreviated Mandate was approved by the Council of the League of Nations on 27 September 1924 (hagtle ofNations O@n'aZ JotlmaI, 5th year, No. 10 (Oct. 1924), 1346-47; see also the address by Lord Parmoor to the Council on this subject on 20 September 1924 (Leagtle ofNations O$in'aI JotlmaI, 5th year, No. 10 (Oct. 1924), 1314-15). A further agreement was entered into in January 1926 extending the original treaty for a maximum period of 25 years: see article 1, Treaty between the United Kingdom and Iraq regarding the Duration of the Treaty of October 10, 1922, Baghdad, 13 January 1926; 'Treaty Series, No. 10 (1926)' (Cmd. 2662); 123 British Forezgn and State Papers 446. 15 Address to a Joint Session of Congress, 8 January 1918, Papers Rehting to the Foreign Relations ofthe United States, 1918, SqpZement 1: The World War (United States Government Printing Office, Washington, 1933)' vol. I, at 12. Point Twelve stated that non-Turkish minorities on the territory of the former Ottoman Empire should be 'assured of an absolute unmolested opportunity for autonomous development.'

The Limits ofthe Lazv on the Use ofForce: Turkey, Iraq and the &rdr

359

Kurdish State o f the Kurds inhabiting that part of K u r d s t a n which has hitherto been included in the Mosul vilayet.16

The treaty also provided for the demarcation of the boundary between Turkey and the territory under British control.17 However, no address to the Council as required was ever made, nor were substantial preparations made for the necessary vote. There was a dlsstinct lack of nationalist feeling among the Kurds, arising from the tribal structure of the culture and the alien nature of such views to a traditional Muslirn society; in addtion their leaders were dmided as to whether they wished to detach themselves from the other Muslim populations of the former Ottoman Empire. According to one author, following the break-up of the Ottoman Empire in the 1920s, when the opportunity for state creation existed, K u r h s h society was wholly unready t o seize it. I t was rural, highly decentralized, largely tribal and without the urban intellectual leadership enjoyed by the Arabs and Turks.18

The scheme set up by the Treaty of S2vres was in any event overtaken by the creation of the new state of Turkey when the forces of Kemal Atatiirk overthrew the remaining Ottoman r e p e in the territory that is now Turkey, and created a secular state. The new r e p e was not receptive to the creation of an independent state for the Kurds with the consequent loss of territory, and refused to ratify the Treaty of S2ves. The Allied Powers acquiesced rather than risk becoming involved in further war. A new peace conference was organised at Lausanne; the Treaty of Lausanne of 24 July 192319 between Turkey and the Allied Powers set out a procedure for the final demarcation of the border of Turkey and Iraq, but made no provision for statehood for the Kurds nor even for the protection of their rights as a minority.20

' 6 Treaty of Skvres, 10 August 1920, Part 11, Article 64; 'Treaty Series, No. 11 (1920)' (Cmd. 964); 113 British Foreign and State Papers 652; extracted in M. Weller (ed.), Iraq and fiwait: The Hostihties and their Aftermath (Grotius: Cambridge, 1993) 568. l7 I h d , Article 27. 18 McDowall, The fir&, szlpra note 10, at 4, and see 9-11 for a more in depth discussion of the structure of Kurdish society. See also R. Falk, Troblems and Prospects for the Kurdish Struggle for Selfdetermination after the End of the Gulf and Cold Wars', 15 Michigan Jot/maIofInternationalLw (1994) 591. '9 Treaty of Peace, Lausanne (Treaty of Lausanne'), 24 July 1923, 117 British Foreign and State Papers 543; 'Treaty Series, No. 16 (1923)' (Cmd. 1929); 18 American Jomal of International Lazv (1924), Supplement, Official Documents, 4. 20 The Treaty of Lausanne in Section I11 (arts. 37-45) provides for certain protections for 'Turkish nationals belonging to non-Moslem minorities'; in practice these only applied to the Jewish and Christian minorities. By article 44, these were stipulated to be 'obhgations of international concern . . . placed under the guarantee of the League of Nations'. However, article 39 forbids restrictions 'on the

360

Finnish Yearbook ofIntemational Ldw (Vol. XII, 2001)

The demarcation of the border between Turkey and Iraq proved particularly contentious during the negotiations, principally because Turkey claimed title to the largely Kurdish vilqet of Mosul in the north of Iraq. A compromise was fmally reached allowing the conclusion of the treaty on the understanding that Great Britain and Turkey should continue to negotiate, and that if no agreement had been reached nine months after the entry into force of the treaty, the dispute would be referred to the Council of the League of nation^.^' After negotiations had broken down in the summer of 1924, the question was referred to the League Council by the United Kingdom and an advisory opinion was requested of the Permanent Court." The Permanent Court held that the decision of the Council under the Treaty of Lausanne was to 'be bindmg on the parties and [would] constitute a defLfiitive determination of the frontier between Turkey and Iraqy.23 In the light of this ruling, the Council appointed a Commission of E n q u q which reported on 16 July 1925, recommendmg that the territory south of the 'Brussels' line, (established to maintain the statzls qzlo in place at the time of signature of the Treaty of Lausanne), should remain under the control of Iraq. However, this recommendation was only on condition that the entire territory of Iraq should remain under the League mandate system for a further period (recommended as 25 years), subject to Iraq joining the League during that time, and further that regard must b e paid t o the desires expressed by the Kurds that officials o f Kurdish race should b e appointed for the administration o f their country, the

free use by any Turkish national of any language in private intercourse, in commerce, religion, in the press, or in publications of any kind or at public meetings.' 21 Ibid., article 3(2): T h e frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months from the coming into force of the present Treaty. In the event of no agreement being reached between the two Governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations. The Turkish and British Governments reciprocally undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision.' 22 For the background of the dispute, see the advisory opinion of 21 November 1925 of the Permanent Court of International Justice, Inteqretation of Adicfe 3, Paragraph 2, of the Treaty oflazlsanne, Advisory Opinion, PCIJ Series B, No. 12 (1925), 9-18. Turkey contested the binding nature of the 'decision' to be adopted by the Council, contending that 'the only possible procedure' was 'to reach a solution with the consent of the Parties through the good offices of the Council.' 23 Ibid., 33. The Court further held that the decision taken must be by unanimity, excluding the votes of the interested parties: ibid., 31-32.

Tbe Lzmits oftbe Law on the Use ofForce: Tzzrkg, Iraq and the Ktlrdr

361

dispensation of justice, and teachmg in the schools, and that Kurdrsh should be the official language of all these services.24

The Council adopted its final decision on 16 December 1925:s favouring the solution recommended by the Commission, and demarcated the boundary between Iraq and Turkey along the 'Brussels' line and invited the British government to submit a new treaty with Iraq to ensure the continuance of the Mandate for a further 25 years.26 The demarcation of the frontier was fmally settled in June 1926 by a treaty between Iraq, Turkey and the United Kingdom, allocating the vilayet of Mosul to Iraq.27 The decision of the Council also called on the United Kingdom to implement the recommendations of the Commission of Enquucy 'to [secure] for the Kurdish populations . . . the guarantees regarding local adrmtllstration recommended by the Commission in its final conclusions.'2* In June 1930, a new treaty between the United Kingdom and Iraq was concluded promising independence.29 By the time the mandate was brought to an end and Iraq achieved fullindependence and was admitted to the League in October 1932, control of the Kurdsh provinces in the north was stdl not fully assured. However, a number of protections for the Kurdish minority had already been implemented. A Declaration by the Kingdom of Iraq of 30 May 1932, whose principles were to be 'recognised as fundamental laws of Iraq', provided wideranging rights of freedom of religion, equaltty before the law, use of language, and Ibid. However, the Commission was of the opinion that if the British Mandate were not to continue or if guarantees of local administration were not given to the Kurds, 'the majority of the people [in the disputed province] would have preferred Turkish to Arab sovereignty'. In these circumstances, in order to prevent 'serious political difficulties' it would be 'more advantageous for the territory to remain under the sovereignty of Turkey, whose internal conditions and external political situation are incomparably more stable than those of Irak'. See Report oftbe Comm.rsion ofEnquiyycited in the report to the Council by M. Unden, delivered at the meeting of 16 December 1925 (League ofNations O f i d Jomal, 7th year, No. 2 (Feb. 1926) 187, at 189; reproduced in Weller, Iraq and &wait, sstcpra note 16, at 568). 25 League of Nations Council Decision Relating to the Turco-Iraq Frontier, Geneva, 16 December 1925, LN Doc. A.17.1932.VII (League ofNations Ofin'alJoumal, 7th year, No. 2 (Feb. 1926) 191-192); Hudson, InternationalLegislation, vol. 1 (1937) 39; reproduced in Weller, Iraq and Kuwait, supra note 16, at 571. 26 This new treaty was concluded on 13 January 1926: Treaty between the United Kingdom and Iraq regarding the Duration of the Treaty of 10 October 1922, Baghdad, 13January 1926; 123 British Foreign and State Papers 446; 'Treaty Series, No. 10 (1926)' (Cmd. 2662). 27 Treaty between the United Kingdom and Iraq and Turkey regarding the Settlement of the Frontier between Turkey and Iraq, Angora, 5 June 1926; 123 British Foreign and State Papers 599; 'Treaty Series, No. l 8 (1927)' (Cmd. 2912). 28 League of Nations Council Decision Relating to the Turco-Iraq Frontier, Geneva, 16 December 1925, sstcpra note 25 (para. 3); reproduced in Weller, Iraq and Kziwaiit, sstcpra note 16, at 572. 29 Treaty of Alliance between the United Kingdom and Iraq, Baghdad, 30 June 1930, 'Treaty Series No. 15 (1931)' (Cmd. 3797); 132 British Forezgn and State Papers 280. 24

362

Finnid Yearbook oflntemational LW (Vol. XII, 200;f)

application of personal law in matters of family law and status. Article 8 made provision for the use of languages other than the official Arabic in areas where a majority of the population spoke a different mother tongue. Article 9 explicitly provided that in areas around Mosul the official language alongside Arabic would be Kurdish or Turhsh, depending on the composition of the population, and that although selection of officials would continue to be based on 'efficiency and knowledge of the language, rather than race', as far as possible officials would be selected from the Kurdish populations.30 The law was not respected, and increasing tensions in the Kurdsh areas culminated in the massacre of dozens of people when troops shot into a crowd in Sulaymaniya. The Lraqi government then clamped down on the Kurdsh nationalists. Atatiirk's efforts to create a unitary Turkish national identity led him to deny any ethnicity other than Turk, and there was not even the suggestion of any minority rights for the Kurds w i h Turkey. By abolishing the Sultanate and the Caliphate, in 1922 and 1924 respectively, Atatiirk removed the religious ideological rallying points around which the Kurds had united with the Turks to protect Turkey against threats from Greece and Armenia. Unrestrained by the obligation to recognise the Kurds as a national minority which had been contained in the faded Treaty of Sbres, Atatiirk set about denying and destroymg the Kurdsh identity and assirdating the Kurds into his vision of a mono-ethnic secular state. In March 1924, speaking or publishing in Kurdish were banned; the Constitution of later that year enshrined the strong nationalist ideology of Atatiirk and reinforced the prohibition of using any language other than Turkish. In response, in the 1920s a Kurdish opposition movement quickly formed and a series of uprisings took place. The small-scale revolt of February 1925 around Diyarbakir provided the excuse for the suppression of any anti-Turkish/proKurdish action in the eastern portion of Turkey. There followed a period of brutal repression of the Kurds, involving the &g of thousands, the destruction of hundreds of villages and mass forced relocation in an attempt to assimilate the Kurds from South-Eastern Turkey into Turkish society and thereby to break the back of the resistance. In 1926, the right of freedom of association for Kurdish groups was effectively abolished. More outbreaks of revolt, and more brutal repression continued throughout the 1930s. The revolt in 1930 in the area around Mount Arafat, near the Turkish border with Iran and Armenia, provides a particularly stark example. The rebellion origulally had the support of the Shah of Iran, and had considerable success in attackmg the Turkish army and in shooting down Turkish planes. The Turkish army finally attacked with more than 65,000 men, having reached an understanding with the Shah who permitted Turkish troops to cross Iranian territory freely and attack the rebels from the rear. After the collapse 30

Reproduced in Weller, Iraq and &wait, sqra note 16, at 573-75.

The Limits ofthe LdZV on the Use $Force: Turkey, Iraq and the &rdr

363

of the rebellion, the savagery of the repression in all the Kurdish areas, not merely the area of the rebellion, was harsh. A law of 1931 granted a full amnesty to the military and those who had fought on the side of the government for all acts committed in suppressing the rebellion. The military was given increasingly draconian powers to suppress any resistance and was mandated to evacuate complete regons and relocate their inhabitants in an attempt to wipe out Kurdish culture. Laws in 1932 and 1934 divided the country into different areas; the first of these areas was designated as an area where only those of Turkish culture could reside or where those of Turkish culture could establish themselves freely, and included the most fertde areas of the Kurdish provinces. The second area was where those of non-Turkish culture were to be relocated in order to be integrated and assimilated into Turkish culture. The third area consisted of regions that were to be evacuated completely and consisted principally of the areas in the east of the country, mainly the mountainous areas along the borders, constituting the parts of Kurdistan which were least easily controlled by the government. This regon remained a d t a r y zone and off lirmts to foreigners until 1966.

I11 Background (2): 1945 onwards Turkey The Turkish policies of denial of the Kurdish identity and repression of any opposition have continued to a greater or lesser extent up to recent times. The mass deportations, coupled with the destruction of villages and exclusion from agricultural land led to the existence of a sizable Kurdish population in the cities of western Turkey. The I<em&st policy of denial of any ethnicity other than Turk continued unabated up to comparatively recent times; however, there was a shift of technique. The practice of 'turkisation' through education, the renaming of towns and villages, principally in the Kurdish east, and the refusal to accept typically Kurdish names, was substituted for the wholesale deportation of Kurdish communities to other areas w i h n Turkey. Despite the fact that the Kurdish populations were more or less integrated into Turkish society, with some Kurds rising to high positions in political life, and despite the bans on the use of Kurdish, in the 1970's there was a resurgence of a sense of Kurdish identity in the communities that had been transplanted to the west of the country. 31 The frequent interventions by the military in the political process are due at least in part to the rise of the Kurdish movement.

31

See McDowall, The Ktlrdr, s q m note 10, at 16-17

364

Finnish Yearbook 0fIntemational latv ( V o L XII, 2001)

A number of Kurdish political parties have been created and subsequently suppressed in Turkey;32 the most extreme of these, the Kurdistan Workers Party (the PKK) was officially formed in 1978, although a grouping under that name had existed since 1974. The PKK began its violent campaign agamst the Turkish government, right and left wing parties and the Kurdish landlord class in 1984 with two attacks on Turkish military posts in the south-east, resulting in the deaths of 24 soldiers. Its tactics involved attacks on Turkish diplomatic offices throughout Europe in 1993 and 1995, attacks on hotels and tourist sites in an attempt to damage the Turkish tourist industry, and the bombing of Kurdish landlords seen as being complicit with the Kemalist repe.33 In total, the PKK has been responsible for the deaths of thousands of people, including civilians, a large proportion of whom were Kurds. The PKK was led by Abdullah bcalan, who after the Turkish military coup d'ktat in 1980 fled to Syria, from where he continued to direct operations until his expulsion and eventual arrest in Kenya in 1999.34 In February 2002, following the trial of dcalan and the passing of a death sentence, the PKK announced that it was abandoning its policy of violence and pursuit of secession for the Kurds and would use purely peaceful means to promote the position of the Kurds.35 Subsequently in 2002, the P E announced its dissolution, and reformed as a purely political party.36 The Turkish government position is that the P I . is a terrorist organization whch seeks via the ruthless application of terror to establish a separate Kurdish state.37 In response to the P I W s activities it adopted military measures and political repression involving severe violations of human rights; Turkey has evacuated Under article 69(5) of the Turkish Constitution (available in English at <www.mfa.gov.tr/grupc/ca/cag/ 1142.htm> (accessed 31 October 2002)), the Constitutional Court has power to dissolve political parties. Article 68(4) states T h e statutes and programmes of political parties shall not be in conflict with the indivisible integrity of the State with its territory and nation, human rights, national sovereignty, and the principles of the democratic and secular Republic.' See also article 14 (Prohibition of Abuse of Fundamental Rghts and Freedoms). 33 U.S. Department of State (hereafter 'DOS'), Office of Counterterrorism, Background Infornation on Foreign Terrorist Oqanisations, 8 October 1999, available at <www.state.gov/www/global/terrorism/ fto-info-l999.html> (accessed 31 October 2002). 34 See Section V1 below. 35 Keesing's, 43430. See also DOS, Patterns of Global Terrorism, 2001, 42, available at <www.state.gov/s/ct/rls/pgtrpt> (accessed 31 October 2002). 36 Keesing's, 44749. See infra text accompanying notes 173 to 176. 37 Turkish Ministry of Foreign Affairs, 'A Case Study of the PKK in Turkey', (undated) available at (accessed 31 October 2002). 95 See UN Doc. S/1996/602 for Iranian reliance on Article 51; see UN Doc. S/1997/393 for the Iraqi reaction. For the US reaction, see below, section IX See also Keesing's, 41246-47. g6 Keesing's, 41296-7. 97 DOS, Daily Press Briefing, 25 September 1996. 98 See UN Doc. S/1997/393 for the Iraqi protest. g9 UN Doc. S/1996/711. The legal basis for the US actions is not clear, but see DOS, Daily Press Briefing, 4-6 September 1996. The US intervention was condemned by Russia which said that 'it is a matter of grave concern that Washington is, to all intents and purposes, arrogating to itself the role of supreme arbiter. As a matter of fact, it is seeking to supplant the Security Council, which under the Charter of the United Nations possesses the exclusive right to authorize the use of force': UN Doc. g2

93

376

Finnish Yearbook ofIntemationalLawv o l . XU, 2001)

The PUK subsequently mounted a successful counter-attack against the KDP during the begrnning of October 1996, regauung much of the territory it had lost to the KDP during the fighting the previous month.loO The USA, the UK and Turkey sponsored talks between the PUK and KDP (the Ankara Process), leading to the Ankara Accords of October 1996 and a ceasefire agreement;1O1 however, this agreement seemed to have little effect in preventing further in-fighting between the two warring factions.102 The split between the KDP and PUK was fmally settled only in September 1998 by the Washmgton Accord following intense pressure from the US;'" the settlement was affirmed in 1999.l04 A central conhtion of support from Turkey, the USA and the UK was the commitment to deny sanctuary to the PKK, eliminate all PKK bases from the areas under their control, and to safeguard the Turkish border. Following the events of 11 September 2001, Islamic extremist followers of Osama Bin Laden attempted to set up an enclave in the area controlled by the PUK around the town of Halabja near the Iranian border. The PUK attempted to put down the militants, and after intense fighting recaptured Halabja.105 At present,

S/1996/715; see also UN Doc. S/1996/712. France and China also reacted negatively, while the UK supported the action: Keesing's,41297. 100 Keesing's, 41343. There were allegations that the PUK had received substantial support from Iranian forces. 101 As part of the Ankara process, an inchgenous Peace Monitoring Force, consisting of Iraqi Turkomans and Assyrians was set up with the support of the US government in order to help supervise the cease-fire line: see 'Letter from the President to the Speaker of the House of Representatives and the President pro tenpore of the Senate', 23 September 1997, available at (accessed 31 October 2002). 102 Keesing's, 41877; Keesing'sy42526. 103 Keesing's, 42526; the details of the settlement were not released. Turkey was apparently at first angry about the agreement, (possibly because of provision for a Kurdish regional parliament (see Keesing's, 42526,42574), but appears to subsequently have been mollified: see DOS, Press Statement by J. Rubin, Joint Declaration on behalf of Turkey, UK and USA', 10 November 1998. 104 See 'Letter from the President to the Speaker of the House of Representatives and the Presidentpm tenpore of the Senate', 3 March 1999, available at (accessed 31 October 2002). See also the press statement of 26 June 1999 issued by the PUK following further talks between 16-25 June 1999 on the implementation of the Washington Accords, available at <www.puk.org/press/ pre990626.htm> (accessed 31 October 2002). 105 0 . Bowcott, 'Bin Laden disciples terrorise Kurds', The Gzta~dan,10 January 2002; Keesing's, 44369-70 (September 2001). See also 'Kurds: A1 Qaeda-trained militants in north Iraq', Associated Press, 25 April 2002, available at <www.puk.org/report/02rot0426a.htm> (accessed 31 October 2002); DOS, Co~nty&ports on H m a n Rights Practices, 2001 - Iraq, 4 March 2002, available at <www.state.gov/g/drl/ rls/hrrpt/2001/nea/8257.htm> (accessed 31 October 2002). There have also been reports that Jund a]I~kanzis cooperating with the Iraqi security service, see D. Kinnane Roelofsma, 'Analysis: Bin Laden's Iraq Connection', U.P.I., 19 November 2001, available at <www.puk.org/report/Orotl12ll.htm> (accessed 31 October 2002); Keesing's, 44370.

The L m i h oftbe Laav on the irse ofForce: T~rkey,Iraq and the &rdF

377

relations between the PUK and ISDP appear to be relatively stable;lo%e two parties issued a joint statement condemning the terrorist attacks on the USA, at the same time calling for enhanced cooperation.107 The USA remains active in promoting reconciliation between the two sides and implementation of the Washington Accords.108

The aim of this section has been to give a brief picture of the complexity of the situation of the I (accessed 31 October 2002). 108 See 'US State Department Officials Meet Kurdish Leaders', 12 December 2001 (available at <www.puk.org/report/OM1213a.htm>(accessed 31 October 2002)) detailing a trip by representatives of the State Department to Iraqi Kurdistan. The leaders of the two factions met with the delegates separately. 109 UN Doc. S/1997/552; for the Iraqi reaction, see UN Doc. S/1997/664. "0 See UN Doc. S/2000/736, UN Doc. S/2001/31. "l UN Doc. S/1995/540 Keesing's, 40473-4; 40522; 40563. 112 M. Bothe and T. Lohmann, 'Der tiirkische Einmarsch im Nordirak: neue Probleme des vi5lkerrechtlichen Gewaltverbots', 5 Scbwei~eriescbeZeitscbrzj@r internationales nnd enropaiicbes Recbt (1995) 107

378

Finnish Yearbook $International lazv (Vol. XII, 2001)

commentators on the 1995 operation focussed on the legality of the Turkish actions and speculated as to possible justifications for the Turhsh use of force; Turkey itself offered little in the way of legal justification. It is precisely t h ~ sabsence of legal explanation that is the main focus here. At first Turkey operated with the consent of Iraq and its pursuit of the Kurds dd not meet with protest or were taken on the basis of agreement with Iraq.") The UI< apparently regarded the matter as one between Iraq and Turkey.114 There have been reported to be a series of agreements on cross-border cooperation.115 However, since 1991 (following Turkey's participation in the coalition which drove Iraqi forces out of Kuwait) Iraq has protested strongly at Turkey's incursions. It has sent many communications to the Security Council and its protests have become more forcefd116 At first its tone was relatively conciliatory; in its first protest to Turkey after the end of the Kuwait crisis, concerning the penetration by Turkish armed forces to a depth of sixteen kilometres inside Iraqi territory on the pretext that they were in pursuit of 'separatist terrorists', Iraq referred to statements by the Minister for Foreign Affairs on 7 August 1991 and continued that Iraq strongly protests against the violation by the Turkish army o f the territory and national sovereignty of the Republic of Iraq and considers this conduct, and the intention t o repeat it, t o b e a violation o f the Charter of the United Nations and

441; C. Antonopoulos, 'The Turkish Military Operation in Northern Iraq of March-April 1995 and the International Law on the Use of Force', 1 Jotrmal of Amed ConJict Law (1996) 33; Gray, Use ofForce, sttpra note 2, at 103-105. 113 See e.g. Keesing's, 32585 (May 1983: no Iraqi response); Keesing's, 32688 (August 1984: no Iraqi response); Keesing's, 33037 33490 and 33497-98 (August and October 1984: with Iraqi consent); and Keesing's, 35135 and 35164 (August 1986, under agreement). The 1926 boundary treaty (Treaty between the United Kingdom and Iraq and Turkey regarding the Settlement of the Frontier between Turkey and Iraq, sttpra note 27) (Chqbitre I1 - Bon voisinage) provided for various obligations concerning crossfrontier incidents, but no right of hot pursuit. Iraq has on occasion referred to this Treaty in its complaints about Turkish action: UN Doc. S/22943, UN Doc. S/23141. 114 UKMIL 1983, 54 British Year Book oflntemationallazv (1983) 533. 115 The text of these agreements is not available. See reports of agreements in April 1979 (Keesing's, ~ Its Ongins, 29923), October 1984 (Keesing's, 33497-98). See also J. Bulloch and H. Morris, The G HWar: Histor and Conseq~ences(Methuen: London, 1989) at 34, referring to an agreement from 1982. Turkey has concluded agreements with other neighbouring States with Kurdish populations: see Keesing's, 39790: December 1993 (Iran); Keesing's, 40751: September 1995 (Iran and Syria); Keesing's, 42574 and Keesing's A n n d Register 1998 at 229: October 1998 (Syria), and see infra text accompanying notes 162163; 103 Revzleginirale de ddroit intemationalep~bdc(1999) 964: August 1999 (Iran). "6 As an example of the Iraqi complaints see: UN Doc. S/1995/254, summarizing attacks by Iran (1,041 incidents), Turkey (56 incidents) and the USA and UK (36,362 violations of Iraqi airspace in the north of Iraq) between March 1991 and May 1995; UN Doc. S/1996/641 which summarises 100 complaints made by the Iraqi government to the Turkish government in the period August 1991 to July 1996; many of these incidents appear not to have been reported to the Security Council previously.

The ljmits oftbe LW on the Use ofForce: Tarkey, Iraq and the &rdr

379

of international law and a serious abuse of the relations of good-neighbourliness and cooperation between the Iraqi and Turhsh peoples.l17

However, the communication went on to state that Iraq reaffirms its desire to strengthen relations of good-neighbourhess built on cooperation and mutual respect and calls on the Turlush Government not to repeat such violations, whch do not serve the interests of the Iraqi and Turkish peoples. The Mimstry of Foreign Affairs of the Republic of Iraq takes this opportunity to convey to the Ministry of Foreign Affairs of the Republic of Turkey the assurances of its highest consideration.118

It used similar conciliatory phrases in its protest two days later on 14 August 1991, but now spoke of Turkey's 'aggression against its national sovereignty7,"9 and used strong language to condemn the Turkish suggestion of the creation of a 'buffer From October 1991 Iraq abandoned conciliatory phrases and complained of 'outrageous', 'flagrant', 'blatant' and 'glaring' violations by Turkish aircraft of the territory of Iraq.121 It also now requested the Security Council to inter~ene.1~~ It maintained this approach until 1996 when it again adopted a tone more conciliatory towards Turkey: While the Government of Iraq maintains its legitimate right under international law to claim compensation for the damage caused by these Turlush violations and infringements of its territory and airspace, it renews its appeal to the Government of the Republic of Turkey, through you, to review its policy with respect to the situation in northern Iraq and to establish cooperation between our two neighbouring countries based on considerations of goodneighbourliness and mutual respect for the sovereignty which Iraq cherishes. This would provide a means of resolving h s grave situation in the interests of both countries and in accordance with their wish to establish security and stabdity in the region, thus giving effect to their people's longing for prosperity and progress. The abnormal situation created by the United States of America in northern Iraq and its deployment of the United States and British forces in Turkish territory in 117

UN Doc. S/22925.

118 Ihd

UN Doc. S/22943. On the buffer zone, see infro text accompanying notes 147-160. 121 UN DOC.S/23152, UN Doc. S/23141, UN Doc. S/23153 and UN Doc. S/23152 respectively. 122 UN DOC.S/23141; UN Doc. S/23152; UN Doc. S/23153; UN Doc. S/23183. "9

120

Finnish Yearbook: OfIntemationalLazv (Vol. XII, 2001)

380

Operation Poised Hammer prevents our two neighbouring countries from reaching a settlement of the issues which trouble their good-neighbourly relations and whch also threaten international peace and security in the region and in the world as a wh01e.l~~ In stark contrast to the constant reports by Iraq to the Security Council of border incidents, Turkey has not generally reported its operations to the Security Council.124 Occasionally it has made statements to the Turkish press in explanation of its actions and Iraq has referred to these communications in its complaints against Turkey.125 Rather than take the initiative in reporting to the Security Council, Turkey has merely responded to Iraq's complaints to the Security Council. Even this it has done only rarely and its responses contained little by way of legal argurnent.126 Turkey made no communications regarding its actions in 1998, 1999 and 2000. In its few communications to the Security Council, Turkey does not purport to rely on Article 51 of the UN Charter on self-defence127 and these communications have left the legal basis for Turkey's use of force indeterminate. From 1993 Iraq argued that the perpetration of aggression against it was assisted by the restriction of Iraq's capacity for self-defence because of the rmlitary measures imposed on it by the USA, the UK and France in the form of the two nofly zones. It made this argument first in its protests against action by Iran in a series of cross-border sorties by armed forces.128 Iraq said that accordtngly the USA, the UK and France bore the responsibhty on a footing of equality with the Iranian repe.129 Iraq subsequently repeated thls argument many times in its complaints about incursions by Turkish forces into northern Iraq. It said that Turkey was exploiting the abnormal situation in northern Iraq created by, in particular, the USA, in violation not only of the provisions of the UN Charter and the principles of international law, but also of Security Council Resolution 687. The Turkish Government therefore bore full responsibility for these hostile acts and their UN DOC.S/1996/578. Cf. also the Iranian actions, described infra, Section IX. 125 See e.g. UN Doc. S/22925; UN Doc. S/22926; UN Doc. S/22943; UN Doc. S/23141; UN Doc. S/23183; UN Doc. S/1996/401; UN Doc. S/1996/1041; UN Doc. S/1998/1047; UN Doc. S/1998/1049; UN Doc. S/1999/840. 126 UN DOC.S/22435, UN Doc. S/1995/605, UN Doc. S/1996/479, UN Doc. S/1997/7, UN Doc. S/1997/552. 127 Bothe and Lohmann, 'Der tiirkische Einmarsch', szrpra note 112, were not sure whether Turkey had invoked self-defence under Article 51 and speculate on the various possible justifications for the use of force. 128 UN DOC.S/25864, UN Doc. S/1995/141 and see infa, Section IX for details of the Iranian attacks. 123 124

129

Ibid.

The Lzmits ofthe Law on the Use ofForce: Tttrky, Iraq and the KtirdF

381

consequences, particularly since Iraq was in no way responsible for the situation. The true reason for it was the policy of the USA of interference in the affairs of the regon and the deployment of USA and British forces on Turkish territory in Operation Poised Hammer, in order to intervene militanly in northern Iraq and prevent the latter from exercising its national sovereignty there. This had damaged the security and stabhty of the regon. Had Iraq been able to exercise its authority in the northern part of the country, armed terrorist groups would not have been able to establish themselves in northern Iraq and southern Turkey.130 Turkey took up this Iraqi argument in 1995 in response to a letter from Libya,l31 saylng that As Iraq has not been able to exercise its authority over the northern part of its country since 1991 for reasons well known, Turkey cannot ask the Government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for the staging of terrorist acts against Turkey. Under these circumstances, Turkey's resorting to legitimate measures whch are imperative to its own security cannot be regarded as a violation of Iraq's sovereignty. No country could be expected to stand idle when its own territorial integnty is incessantly threatened by blatant cross-border attacks of a terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to such attacks. The recent operations of lunited time and scope were carried out within this frarnew0rk.l3~

In 1996 Turkey again stressed that if respect for Iraq's territorial integnty was an obligation for Turkey as well as for other members of the international community, Iraq was no less obliged to prevent the use of its territory for the staging of terrorist acts under the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations ('the Friendly Relations Declaration7).133Turkey stated that It is a fact, though an unfortunate one, that Iraq cannot exercise its authority either on the territory or the airspace of a part of its country. Turkey, therefore, can at present neither ask the Government of Iraq to fulfil its obligation nor find any legtimate authority in the north of Iraq to hold responsible under '30 UN DOC.S/1996/401; UN Doc. S/1996/561; UN Doc. S/1996/641; UN Doc. S/1996/860; UN Doc. S/1997/968. 131 UN DOC.S/1995/566. 132 UN DOC.S/1995/605. See also UN Doc. S/1996/479 which accused Syria of aiding the PKK, and drew a response from Syria: UN Doc. S/1996/635. 133 GA Res. 2625 0, 24 October 1970, f ~ s Principle, t ninth indent: 'Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force'.

Finnish Yearbook:0fIntemaionalLazv (Vol. XII, 2001)

382

international law for terrorist acts committed or originated there . . . Under these circumstances Turkey's resort to measures imperative to its own security originating from the principle of self-preservation and necessities [sic], cannot be regarded as a violation of Iraq's ~overeignty.l3~

Iraq rejected these lines of argument on the basis that Turkey was itself in breach of the Friendly Relations Declaration, in particular the duty to refrain from 'organizing, instigating or participating in acts of civil strife or terrorist acts in another State', by aiding the Iraqi Kurdish rebels in northern Iraq.135 The Iraqi letter stated the Turkish government bears a signrficant part of the responsibility for the absence of any legitimate authority in northern Iraq . . . Turkey also agrees to the deployment of United States and British strike forces in its territory for the purpose of intervening militarily in northern Iraq and preventing the Iraqi government from exercising its sovereignty there. Consequently, the Turkish government cannot invoke the principle of necessity or the legitimate right of self-defence in reference to an anomalous situation that it has itself actively and hectly participated in creating.136

Turkey repeated its argument in 1997 in reply to a whole series of communications by Iraq to the Security Council alleging violation of its sovereignty,l37 claiming that Iraq's inability to exercise authority over the northern parts of its territory continued to provide room for 'frequent violations of Turkish borders and territory in the form of terrorist infiltrations and activities which result in losses of human lives and damage to property.'l38 Claiming that the Turkish government bore no responsibility for the situation in northern Iraq,l39 the letter went on to state that Exploitation of northern Iraq as a safe haven by terrorist formations reaching considerable numbers to prepare and launch operations against Turkey undermines Turkish security and constitutes a major threat to peace and stability in the region as a whole. The Government of Turkey is determined to take all

UN DOC.S/1996/479. See also UN Doc. A/51/468, also issued as UN Doc. S/1996/836, and UN Doc. A/51/550, also issued as UN Doc. S/1996/872. '35 UN DOC.S/1996/561.

l34

136

Ibid.

UN DOC.S/1996/578; UN Doc. S/1996/626; UN Doc. S/1996/641; UN Doc. S/1996/762; UN Doc. S/1996/860; UN Doc. S/1996/926; UN Doc. S/1996/951; UN Doc. S/1996/1018. '38 UN DOC.S/1997/7. l39 See also UN Doc. A/51/468, also issued as UN Doc. S/1996/836. l37

The Limit. ofthe Lcaw on the U r e of Force: T~rkey,Iraq and the h r d r

383

appropriate measures with a view t o safeguardrng its legitimate security interests, defendmg its borders and protecting its people against terrorism.140

Iraq replied that the actions of Turkish armed forces on the ground and the shelling of the villages and towns of northern Iraq were a flagrant violation of Iraqi sovereignty and incompatible with Turkey's supposed support for the preservation of the independence, sovereignty and territorial integrity of Iraq.141 In its view, the excuses contained in the letter from Turkey to the Security Council to justifY the acts of aggression do not stand up to scrutiny: T h e Turkish Government is responsible for the absence o f the rule o f law in northern Iraq, by virtue o f its complicity in the maintenance o f the anomalous position created by the USA and its allies in northern Iraq. This allows it both t o undertake hostile military incursions into Iraqi territory and t o prevent the Iraqi Government from re-establishing national control over the area. T h e Turkish Government cannot justify its practices by citing the principle o f the need for o r legitimate right o f self-defence, since it had itself directly and actively contributed t o the creation and perpetuation of the anomalous situation in northern Iraq.142

In fact in its few communications to the Security Council Turkey never mentioned self-defence, nor did it attempt to rely on Article 51. Rather, it referred to the duty incumbent on a State deriving from the Friendly Relations Declaration to refrain from acquiescing in organised activities within its territory lrected towards the commission of terrorist acts in another state,l43 and it relied on the nineteenth century principles of necessity and self-preservation. It also stressed its determination to take measures to protect its legtimate security interests, defending its borders and protecting its people against terrorism.144 T h s comes nearer to the language of self-defence but falls short of an express claim. Turkey has maintained apparently inconsistent positions on the two issues; on the one hand it expressed concern that the no-fly zone allowed the PKK to operate from Northern Iraq, yet at the same time it has allowed its airbase to be used to maintain that no-fly zone, while denying any responsibility for the situation in northern Iraq.l45 Turkey has not UN DOC.S/1997/7. UN DOC.S/1997/129. 142 Ibd 143 'Friendly Relations Declaration', sqra note 133. l44 UN DOC.S/1996/479, UN Doc. S/1997/7, UN Doc. '45 The legahty of the no-fly zones is as crucial to any question of the responsibility of Turkey as it is to the question of the legahty of the actions of the USA and the UK in maintaining those zones and any state responsibility on their part. If the simple fact of the operation of the no-fly zones is illegal because a violation of Iraq's territorial integrity and because it constitutes military intervention, then Turkey must equally be liable for the aid and assistance provided to the US and UK by the provision of airbases from which the air-patrols are staged (see further Article 16 of the International Law 140 '41

384

Finnish Yearbook of International Ldzv (Vol. XII, 2001)

publicly defended the legality of the no-fly zone, nor offered any legal justification for it or for Turkey's role in its maintenance. Further, Turkey has not put forward a clear legal justification for its periodic creation and occupation of the buffer zone in northern Iraq. Here, as in attempting to justify its more temporary incursions, Turkey has seized on the arguments made by Iraq about its inability to control the territory covered by the no-fly zones and used these against Iraq in attempted justification for its actions. It has not used any generally recogrused international law doctrine. The establishment of the buffer zone has been accompanied by assurances to Turkey's allies that the occupation would be of luzllted duration and scope, and that Turkey continued to respect the territorial integrity of Iraq. Iraq protested for the fust time about the creation of such a buffer zone or 'no-man's land' by Turkish forces in its territory in 1991. In response to reports in the Turlush press that the Minister of Defence had said that the creation of a 'noman's land' inside Iraqi territory was a decision to be taken by the Turkish government, Iraq protested the statement was totally unacceptable and inadmissible and is contrary to all the principles of international law and is totally incompatible with relations of goodneighbourliness between Iraq and Turkey. Sovereignty over Iraqi territory is a responsibility of the Iraqi state which cannot, under any circumstances whatever, pass to the Government of another state.146

During the major operation in March-May 1995, after further reports in the press that the President of Turkey had proposed the r e d e f ~ t i o nof the boundary between Turkey and Iraq, apparently in order to move the boundaries so that they could be policed more effectively,l47 Iraq stated that it refused to d x u s s the matter, and warned against Turkey taking any unilateral steps.148 Turkey denied that any decision Commission's Articles on the Responsibility of States for Internationally Wrongful Acts, and the accompanying Commentaries, Report of the International Law Commission, Fifty-third session (23 April - 1 June and 2 July - 10 August 2001), UN GAOR, 56th Sess., Supplement No. 10, UN. Doc. A/ 56/ 1O), para. 76 et seq., reproduced in J. Crawford, The International La2v Commission3 Artices on State Responszhb4; Introddon, Text and Commentaries (Cambridge University Press, 2002) at 148-151; GA Res. 56/83,12 December 2001). Turkey should not then be able to argue that it may legitimately invoke the provisions of the Friendly Relations Declaration in order to justify further incursions on Iraq's territory on the basis that Iraq is not able to fulfil its obligations. Such an argument would allow Turkey to rely on its own prior illegal conduct in an attempt to justify further wrongdoing. 146 UN DOC.S/22943. 147 DOS, Daily Press Briefing, 25 March 1995; Keesing's, 40563, gives the date of the President's proposal as 1 May. 148 UN DOC. S/1995/361, annex (Statement issued on 4 May 1995 by the Spokesman for the Revolution Command Council of Iraq, and reproduction of the position paper of the Turkish government).

The Lmits ofthe L z w on the Use $Force: Tarkey, Iraq and rhe &rdf

385

had been taken by the Turkish government, or that any consultations with the Iraqi government had taken place.149 At the same time, there were various press reports that the Turkish government had expressed the intention of proposing to the international community a solution to the problem in northern Iraq along the h e s of the Israeli zone in Lebanon, as well as proposing a solution with the Iraqi government itself.150 However, no formal proposal seems to have been made to the international community, and Turlush troops stayed w i h Iraqi territory for relatively long periods with no international authorisation, and no apparent legal basis or justification. In relation to the proposals in 1995 and the actual operation of the buffer zone, Iraq seems to have made no response specifically relating to the issue, but merely made a general complaint concerning the violation of its borders by Turkish troops. By contrast, in response to the occupation of northern Iraq and the operation of a buffer zone in September 1996,151 Iraq sent a number of letters to the Security Council, but after complaining of the presence of Turkish troops on its territory, used the opportunity to attack the USA. I have the honour to draw your attention to the attacks and violations of a military nature being waged against the sovereignty of the Republic of Iraq which are the work of a Turhsh Govemment that is determined to occupy portions of Iraqi territory in whch it has created so-called 'security zones' or 'buffer zones' and has deployed large numbers of troops throughout what it refers to as 'the temporary danger zone. Far from being isolated acts, these acts of aggression are in fact openly supported by the United States of America . . . These statements and this blatantly aggressive attitude make it clear to the United Nations and to the international community at large that the United States of America is Qsplaying utter contempt for the rules of international law and for the sovereignty and independence of States . . . the United States Government is encouraging certain States and certain factions to follow in its footsteps and to take practices whch are entirely foreign to the commonly accepted rules and usages of international relati0ns.l5~

l49 UN

Doc. S/1995/484. Press Briefing, 24 March 1995; 27 March 1995; 4 April 1995. 151 At approximately this time, the US had mounted attacks against Iraqi forces supporting the KDP, and undertaken the evacuation of US humanitarian workers due to the fighting between the KDP and PUK; see szlpra notes 94-100. 152 UN DOC.S/ l996/73l. 150 DOS, Daily

Finnish Yearbook oflntemational ld2v (Vol. XII, 2001)

I n a later letter, after more accusations directed against the USA, the Iraqi government complained that The statements made by [the Turkrsh Foreign Minister] expose the plans of the Turkrsh Government to occupy Iraqi territory in order to establish what [she] calls a security zone or 'temporanly a danger zone'. The Turhsh plans constitute blatant aggression against Iraq, overt interference in Iraq's internal affairs, a violation of its territorial intepty and a breach of the principles of international law and the Charter of the United Nations.153 These letters provoked a response from Ankara. After stressing Turkey's continued commitment to the preservation of the sovereignty and territorial integnty of Iraq, the letter went o n to state At the same time, it is an incontrovertible fact that a terrorist organization is using northern Iraq to launch terrorist attacks across the border into Turkish territory and is targeting innocent people. Turkey cannot and will not accept the negative reflection on her security of Iraq's inability to exercise control over northern Iraq. Turkey is not responsible for the inability of Iraq to control the area in question. The singular aim of the temporary danger zone declared along the strip of land parallel to the Turkish-Iraqi border is to bar the infiltration of terrorist elements into Turkey from Iraq. Its objective is to act as a deterrent and to put a stop to the terrorist activities that have intensified in the region adjacent to our border as a result of events of the last few weeks. The declaration of the temporary danger zone cannot be in any way be a violation of the territorial intepty of Iraq, as Turkey has neither any claim of sovereignty over h s area, nor is there a question of military occupation. If it had been possible to prevent terrorist activity . . . the need for Turkey to enter into arrangements such as the temporary danger zone would not have arisen. The temporary danger zone is . . . entirely a temporary defensive measure expected to remain in force untd State authority is established in some manner in the region. Therefore the Turkish Government categorically rejects the claim that the legitimate security measures taken by Turkey against terrorist activities

153 UN DOC.A/51/438, also issued as UN Doc. S/1996/812, referring to comments made by the Turkish Foreign Minister on 23 September in New York after her meeting with the US Secretary of State. See also DOS, Spokesman's Briefing, New York, 23 September 1996. The operation also drew criticism from the League of Arab States: UN Doc. S/1996/796.

The h i t s ofthe LW on the Use ofForce: Turkey, Iraq and the &rdr

387

originating from northern Iraq, and targeting Turkish territory and population, aim at violating Iraqi sovereignty o r constitute rmlitary a g g r e s ~ i 0 n . I ~ ~

Here again are all the elements farmliar from Turkey's other attempted justifications of its use of force in northern Iraq; once again the necessity to take such measures is blamed on the internal situation in Iraq and the Iraqi government's lack of control of the north, and no h k between this situation and Turkey's support for the US and UI< air raids is recopsed; and once agam the response falls short of invokrng any doctrine known to generally accepted international law, although it does come relatively close to invoking self-defence. In addtion, in this communication there is another element: the claim that Turkey's actions could not constitute a violation of Iraq's sovereignty' or military aggression because they did not have that 'aim'. Here, rather than seeking to assimilate its intervention to self-defence falling withtn Article 51 (with the associated problems, noted above, of Turkey's aid and participation in the creation and maintenance the no-fly zones) Turkey seems implicitly to be relymg on a narrow, 'permissive' interpretation of Article 2(4) of the Charter.155 Such claims by States are not in themselves unprecedented,15hlthough they have more normally been put forward by academic writers.157 What is unusual is that in recent times such arguments have been deployed by writers principally either in the context of humanitarian intervention (most obviously in relation to the intervention by NATO in Kosovo),l58 or to a lesser extent, to justify a right of pro-democratic intervention;l5%e actions of Turkey fall into neither of these categories. UN DOC.A/51/468, also issued as UN Doc. S/1996/836; see also UN Doc. A/51/550, also issued as UN Doc. S/1996/872: 'It is a fact that the absence of authority in northern Iraq has caused immense security problems for Turkey ever since the Gulf War. Yet neither the responsibility nor the consequences of Iraq's inability to exercise authority in the northern part of the country can be attributed to Turkish policies. Turkey cannot be expected to stand idle until Iraq reassumes its obligations, when its own territorial integrity and security are incessantly threatened by the blatant cross-border attacks of a terrorist organization based in and operating from the Iraqi territory profiting from this power vacuum. Considering that Iraq is not in a position to fulfd, among other international requirements for the prevention of commission of terrorist acts from its territory, [its undertakings under resolution 687 (1991)], it is surprising to see [Iraq] condemning Turkey for undertaking this responsibility in view of the lack of any other alternative.' l55 For a brief summary of the debate and references to the literature, see Gray, Use ofForce, sztpra note 2, at 24-26. 156 See for example the claim of the United Kingdom in C O ~Channel M Case (United Kingdom v. Albania) (Merits), ICJ Reports (1949), 4 at 34. 157 See e.g. W. M. Reisman, 'Coercion and Self-determination: Construing Charter Article 2(4)', 78 American Jomal of International La2v (1984) 646; and A. DYAmato,International Law: Process and Prospect (2nd edn, Transnational Publishers Inc.: Irvington, W ,1995). '58 See Gray, Use ofForce, szpa note 2,26-42. '59 Ibid, 42-44, making reference to the academic response to the actions of the USA in Grenada and Panama.

388

Finnish Yearbook of IntemutionaI Law (&%l.XIZ, 2001)

V1 The Capture of 0calan The capture of Abduallah Ocalan, the leader of the PKK, in mysterious circumstance in Kenya on 15 February 1999 did not bring a change in Turkey's approach. 0calan had been based in Syria, a rival of Turkey for regional power since the days of the Cold War, but in 1998 Turkey threatened Syria with military action unless it expelled hun.160 Syria denied that it had provided assistance to the PKK, but then made an agreement with Turkey at a special security meeting in October 1998 whereby Syria undertook commitments to satisfy Turkey's security c~ncerns.~G~ This could be interpreted in the circumstances as an implicit acceptance by Syria that it had in fact previously at least acquiesced in the activities of the PKK from its territory. Syria said that as of that date Ocalan was not in Syria and would not be allowed to enter Syna, PKK elements abroad would not be allowed to enter Syria and that PKK camps were not operational and would not be allowed to become active. It also said that Syria, on condtion of reciprocity, would not permit any activity emanating from its territory aimed at jeopardizing the security and stability of Turkey. Syna would not allow the supply of weapons, logstic material, fmancial support to and propaganda activities of the PKK on its territory. Syria also recognised that the PKK was a terrorist organisation. Both sides agreed to establish mechanisms to implement these measures.162 A month previously, under the Washington Accords of September 1998, the PDK and the PUK had undertaken to elmmate all PI= bases from the territory under their control and to deny sanctuary to members of the PKK.163 After Ocalan was forced out of Syria there were reports that he then went to Russia. 0calan was arrested in Rome in November 1998, but the Italian courts refused to extradite hum to Turkey as Italian law does not permit extradtion in cases where the death penalty could be imposed. However, the Italian government would not grant him asylum.164 In February 1999 0calan was found in the Greek embassy in Nairobi, Kenya; there were reports that Greece and Israel had collaborated in his arrest.165 Israel and Turkey had concluded a military cooperation agreement in 1996 and had a common interest against Syria.166 Subsequently Israel supplied 160 DOS, Daily

Press Briefing, 1 October 1998; 6 October 1998; Keesing's, 42574. See e.g. 'U.S. Welcomes Turkey-Syria Agreement', Press Statement by J. Rubin, DOS, 22 October 1998; Keesing 's Annual Register 1938,229. 162 The Guardian, 5 October 1998; 9 October 1998; 22 October 98; 27 October 1998; Keesing's, 4252627,42574. 163 See sqra text following note 103. '64 Keesing's, 42745,42635,42696. 165 Keeing's, 42791. 166 Keesing's, 41071. See also Keesing's, 42526-27. 161

The Lzmits oftbe LAW on the Use ofForce: Tarkey, Iraq and the I%lr&

387

sophsticated arms to Turkey167 and there were reports that it also gave satellite intelligence. South Africa also lifted its embargo on arms to Turkey in May 1998.168 It is striking that Israel and South Africa, both states which had themselves mounted cross-border pursuit of alleged terrorists, should now help Turkey. During his trial for treason in Turkey in June 1999, 0calan promised that the PI% would abandon the violent struggle and would seek limited autonomy by democratic means.169 He was nevertheless sentenced to death, but the execution of the sentence was suspended by the Prime Minister in January 2000 pending a decision on his case by the European Court of Human Rights.170 At the time of writing the Court has delivered an admissibility decision concerning 0calan's claims, finding that almost all of them are adrmssible;171 the Chamber also relinquished juris&ction in favour of the Grand Chamber. A judgment on the merits is still awaited. In August 1999 0calan called on the PKK to gve up the use of force; the PKK accepted this, and announced that it was withdrawing its force from Turkey, an end to the fifteen year war which had involved the deaths of an estimated 30,000 people.172 In February 2000 the Pia< formally abandoned its rebehon, adopted a political programme of peaceW protest, and declared the temporary cease-fee to be permanent.173 In April 2002, the PKK formally disbanded, stating that it had fulfded its mission and reformed as the Kurdistan Freedom and Democracy Congress (Kadek).174 Kadek said,that unlike the PKK its agenda did not seek an independent I (accessed 31 October 2002). 168 See 'SA lifts Turkish arms ban', Wee@ Mail and G~ardan, 9 May 1997, available at <www.sn.apc.org/wmail/issues/970509/news4.h(accessed 31 October 2002). '69 Keesing's, 43030. 170 Keesing?, 43328; 43375. 171 Decision as to the Admissibihty OfApphcation No. 4622 1/93 ly Abdulbh Ocalan v. Turkg, judgment of 14 December 2000, available at (accessed 28 April 2002). 172 The Guardan, 26 August 1999; 8 September 1999; Keesing's, 4311 1. 173 Keesing's, 43430. See also Patterns OfGl'obal Terrorism, 2001, sqra note 35, at 42. 174 Keesing 's, 44749. 175 Ibid. The EU took measures against the PKK a month later: Keesing's, 44805.

390

Finnish Yearbook $International Ldw (Vol. XII, 200 l )

V11 Continuing Turkish Action against the Kurds The Turkish government has continued its armed repression of the PICK, which it continued to portray as a threat to the unity of the Turkish secular state. It has not abandoned its cross-border actions, although there seem to have been fewer and smaller-scale incursions by Turkish troops into Iraq following the arrest and trial of 0calan. Its position was that PKK rebels had not surrendered or withdrawn. In February 1999 it sent 4,000 troops into Iraq.176 Pending the trial of Ocalan, there followed yet further incursions in April-May 1999.177 Following 0calan7sconviction on 29 June 1999, there followed yet more incursions in July,178 September,l79 and November - December 1999.180 Over this period, it seems that at times some troops remained stationed in northern Iraq to maintain the buffer zone.181 Again in April 2000, 4,500 Turkish troops went into northern Iraq to hunt the PKIC182 Turkey said that the PI% had re-established their positions close to the border. Turkey was not prepared to negotiate; if the P I . did not surrender it would kill them.183 In May,184 June and July,l85 August186 and December 2000,187 Turkey took action in southeast Turkey agamst the PICK., dismissing the cease-fire as a temporary tactic by the PI% to save 0calan from the death penalty and to enable them to buy time.188 In July 2000 when Turkey renewed permission for Operation Northern Watch to continue to operate from the Incirlik airbase, Iraq made a detailed complaint:189 this would inevitably mean that the forces in question would continue their dady aggression against Iraq, and it would enhance the power of collaborationist Kurdish parties in northern Iraq to provoke internal problems on both sides of the IraqTurkey border. Turkey had played a major part in jeopardizing Iraq's security and 176 For

Iraq's complaint, see UN Doc. S/1999/196;see also Keesing's 42791. l77 UN DOC. S/1999/441;UN Doc. S/1999/560;UN Doc. S/1999/580;UN Doc. S/1999/610. 178 UN DOC.S/1999/778. l79 UN Doc. S/1999/1028. 180 UN DOC.S/l999/ll88;UN Doc. S/1999/1222;UN Doc. S/1999/1225;UN Doc. S/1999/1231; UN Doc. S/1999/1279. 181 UN DOC. S/1999/560;UN Doc. S/1999/1028;UN Doc. S/l999/ll88. 182 UN DOC.S/2000/306,UN Doc. S/2000/353;The Gtlardzali 10 February 2000. 183 The Gtlardzan, 7 November 2000. 184 UN DOC.S/2000/475;UN Doc. S/2000/546. 185 Iraq appears not to have complained to the Security Council about the incidents in June and July. 186 UN DOC.S/2000/833. 187 UN DOC. S/2001/31. 188 The Gtlardzan, 31 August 2000. 189 UN Doc. S/2000/750.

The L2mit.r ofthe Law on the Use ofForce: Tztrktp, Iraq and the I2vrd.r

391

sovereignty by permitting US and British aircraft to use its territory as a base from whch to launch air-raids on northern towns and vdlages. The continuing d d y aggression against Iraq by US and British aircraft was synchronized with the violation of Iraq's sovereignty by Turkish forces and their numerous raids on villages in northern Iraq on the pretext of being in pursuit of undermining the country's sovereignty and territorial integrity and aims at the systematic and deliberate destruction of Iraqi lives, infrastructure and civilian installations, and these countries have turned the measures taken to enforce the no-flight zones into the appropriate instrument to achieve their hostile goals against Iraq. Further cross-border incursions by large number of troops have continued in Octoberl90 and December 2001,"' and in February 2002 Iraq complained of a number of sorties flown by Turkish aircraft during the previous month.192 Despite the frequency of these violations of Iraq's territory, Turkey appears not to have thought it necessary to communicate its actions to the Security Council, whether under Article 51 or otherwise.

V111 The US and UK Defence of Turkey The USA and the UK, anxious to secure the continued use of the Incirlik air-base in Turkey for their operations over Iraq, have generally defended the use of force by Turkey. But, like Turkey, they generally seemed to have held back from claiming that the actions constituted self-defence. The justifications that they offered for Turkey's actions were ambiguous; the legal basis of the incursions remains unclear. The USA in July 1995 affwned Turkey's continuing importance as a longstandmg US treaty ally which projects NATO and Western values into the Middle East as well as south-eastern Europe.193 Since the end of the Cold War, Turkey has replaced Germany as the frontlrne European state. It confronts the most serious threats to its integrity and well-being of any western ally: conact in the Balkans threatens stabhty in the eastern Medterranean; instability in the Caucasus and Russia raises hstorical fears of aggression from that quarter and states to the south and south east actively support terrorism and Islamic fundamentalism inside Turkey. Continuing US support for Turkey's security is essential.'" To this end, the USA supported Turkey's actions against the PI-

UN Doc. S/2001 / l 010. UN Doc. S/2002/61. 'g2 UN Doc. S/2002/150. '93 DOS, Rtp0r.t on H m a n Rzghts in Turkg and Sitz/ation in C2ms, 1 June 1995, and more recently, see DOS, Country Rtports on H~nzanRzghts Practices 2001: Tz~rkg, sstrpra note 48. l94 DOS, Report on Human Rghts in Turkey and Situation in Cyprus, 1 June 1995, sqra note 193. 190

Finlaid Yearbook of International Ldzv (Vol. XII, 200 l)

392

The Kurdistan Workers Party ( P q presents a major threat to Turkey's sovereignty and territorial integrity. It is a ruthless terrorist group which receives support from Syria, Iran, and some sources in Europe and has terrorized the population of southeast Turkey and destabihed the region.lg5

The USA has not maintained a consistent position on the question of the legality of the Turkish action. With regard to the major offensive in March 1995, initially the State Department refused to condone the incursions and contented itself with expressing 'understanding' of the Turkish action while seeking assurances that the incursions would be temporary and of short duration.196 However, a week later in response to a question as to whether the USA saw the Turkish action as self defence, a spokesperson for the State Department stated: we [acknowledge] that a country has the right to use force to protect itself from attacks from a neighbouring country if the neighbouring state is un-g or unable to prevent the use of its territories for such an attack.lg7

In support of this general and therefore ambiguous and evasive statement, Security Council Resolution 687 was invoked, and in particular the obligation in operative paragraph 32 not to allow any terrorist organization to operate within its territory. However, the spokesperson for the State Department stu&ously avoided stating a position on whether Iraq was really at fault given that it could not exercise control over the area because of the no-fly zones.fl8 In a later statement concerning the same iacursion a few days later, Assistant Secretary Holbrooke stated that We believe that [the Turks] efforts to deal with the PKK are legitimate and their territorial integrity is critically important not only to them but all of Europe . . . At the same time, we have expressed our concern that these operations d be limted in scope and duration.lg9

A few weeks later, a much stronger assertion of the USA's position on the legality of the Turkish action was made when Assistant Secretary Holbrooke said: - -

-

195 Ibid.

See DOS, Daily Press Briefmg, 20 March 1995; 22 March 1995; 27 March 1995. Briefing 28 March 1995. 198 Ibid. 199 DOS, Daily Press Briefing, 31 March 1995 (Assistant Secretary Holbrooke). See also DOS, Daily Press Briefing, 6 April 1995; in response to a question regarding whether there had been a shift in the Administration's position on the legahty of the Turkish action, the spokesperson stated that the position had been consistent from the start. However, there was no attempt to justify the Turkish action as had occurred two weeks earlier. '96

197 DOS, Daily Press

The Lzmits ofthe LdW on the U.re $Force: Tarkey, 1 9 and the K t l d

393

When this operation began, the Secretary o f State asked for an opinion from the legal division o f the State Department as t o the legality o f the operation under international law . . . T h e operation does not violate international law. I t is in self-defense of T~rkey.~OO

In July 1995, in response to further reports of Turkish action, and having stated that the Turkish government had indicated that the attack was to protect against an attack by the PKK, a spokesman for the State Department stated a country under the United Nations Charter has the right in principle t o use force t o protect itself from attacks from a neighboring country if that neighboring state is unwilling o r unable t o prevent the use o f its territory for such attacks. That is a legal definition that gwes a country under the U.N. Charter the right t o use force in this type o f instance.201

In September 1996, while the USA was itself engaged in actions in northern Iraq in response to the advance of the Iraqi army into the north at the request of the KDP,202 the USA again used language coming close to that of self-defence in response to the Turhsh announcement of a buffer zone along the Turkish border inside Iraq, but again it did not specifically invoke hticle 51 of the UN Charter. It stated W e recognize the right of Turkey to defend itself against terrorism emanating from the PI(K.'203 However, the USA emphasised that it was important that the creation of the buffer zone was to be temporary; stress was also placed on the fact that the Turkish government had assured it that no troops were to be stationed on Iraqi territory.204 The new a h s t r a t i o n which took office in January 2001 has not yet put forward any views on the legality of the Turkish actions in Northern Iraq. After the major operation by Turkey in March 1995 the UK said little about the law; it said that 'The Turkish Government have explained that their operations in northern Iraq are temporary and aimed solely at destroymg PKK capability to mount attacks agamst Turkey from northern Iraq. There has been no determination

Assistant Secretary Holbrooke, DOS, Daily Press Briefing, 17 April 1995. Press Briefing, 7 July 1995; see the response by Libya: UN Doc. S/1995/566. 202 See qbra text accompanying notes 94-98. 203 DOS, Daily Press Briefing, 5 September 1996; see also 6 November 1996 ('this is part of Turkey's rights to defend itself'). 204 DOS, Daily Press Briefing, 5 September 1996; and 9 September 1996. See also DOS, Daily Press Briefing, 6 November 1996 (no stationing of troops in Iraq, cross border operations limited' and 'only undertaken in defense of Turkey's border, which is legitimate'); 11 February 1998 (We have consistently supported the right of the Turkish Government to defend itself against terrorism, as long as any incursions are limited in scope and duration, and fully respect the rights of the civilian inhabitants in the region'). 200

201 DOS, Daily

Finnii-b Yearbook ofhternational Lazv (Vol. XI1; 2001)

394

by the UN of whether the incursion is a violation of Article 2(4) of the United Nations Charter.'205 However, in 1997 the UK expressed greater concern; We are concerned that Turkish troops are reported to be advancing over the border with Northern Iraq in a move against the PKK. The UK recognises the difficulties of tackling a terrorist threat. We support Turkey's aim of maintaining her own territorial integnty and protecting her legitimate security interests. We are u r p g the Turks not to exceed measures necessary to protect those interests. We understand that Turkey has no wish to challenge Iraq's territorial integnty. We too respect Iraq's territorial integrity. We do not believe that the problem in South East Turkey can be solved by d t a r y means alone. We are also stressing to the Turks the importance of respecting human rights and of avoiding actions which might endanger innocent civilians in the region.206

Again in 1998, when asked about its position in relation to the Turkish troops stationed on Iraqi temtory it said While we recogruse that Turkey has the right to defend its own territorial integnty, whatever action it takes in northern Iraq must be proportionate to the It is striking that Turkey seems not to have felt the need to communicate its acts to the Security Council, as would be its obligation if it were acting in selfdefence, but has merely occasionally offered reassurances to its allies in NATO, in particular the USA, that its actions would be of limited scope and duration. Similarly, it is stnkLng that those same allies have used vague language to defend the Turkish incursions (when they have felt the need to do so at all), and they also have generally not felt able to explicitly state that the Turkish action constitutes selfdefence, but have confined themselves to expressing understanding. This absence of legal dscourse on the part of the USA and UK governments is perhaps not surprising, given the extent to which the USA [and the UI(I depend on the support of the Twhsh government for the operation of the northern no-fly zone. Similarly, it is not surprising that the matter has not even been placed on the agenda of the Security Council; the support of the two Permanent Members means that Turkey will not be held to account in that forum. The legal justification of armed action against terrorist groups in another state clearly requires re-assessment in the light of the events following September 11, but as the next section will seek to show, the USA was selective in its endorsement of this line of argument before 2001. The communication of the USA to the Security p -

205 UKMIL

P

p -

P

1995,66 British Year Book ofIntemationalLaw (1995) 725. 206 UKMIL 1997, 68 British Year Book ofIntemational Law (1997) 630. 207 UKMIL 1998, 69 British Year Book ofIntemationalLaw (1998) 586.

The Limits ofthe LdW on the Use ofForce: Tzir.9, Iraq and the &rds

375

Council as operations were commenced against the Taliban and Al-Qaeda forces stated: In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against Al-Qaeda terrorist training camps and d t a r y installations of the Taliban regime in Afghani~tan.~~~ Even if in October 2001 the USA believed that this was a valid exercise of the right of self-defence in accordance with Article 51 of the Charter, it obviously had not been confident that the Turkish action fell into that same category in the preceding years.

IX Iran's Incursions into Iraq In marked contrast to Turkey, when Iran has undertaken cross border operations into Iraq against Kurdish terrorist groups, it has expressly relied on self-defence to justify its use of force and has reported its actions to the Security Council, as required by Article 51 of the Charter. There are reported to be about 27,000 Iranian Kurds in Iraq; the government of Iran suspected that fighters belonging to the Kurdish Democratic Party of Iran (KDPI)209 and the Mujahedm-e Khalq Organisation were operating from Iraq. From May 1993, Iran operated against Kurds based in Iraq by shelling and aerial bombing raids. In explaining the aerial raids, it said that In response to these armed attacks from inside Iraq and in accordance with Article 51 of the Charter of the United Nations, the fighter jets of the Islamic Republic Air Force carried out a brief, necessary and proportionate operation against the d t a r y bases of the terrorist group where the recent armed attacks had ~rigi.nated.~~l

UN DOC.S/2001/946. The KDPI, despite the similarity in name, is not connected with the Iraqi KDP. 210 The MKO is a Marxist-Islamic terrorist group formed after the Iranian Islamic Revolution in 1979. It is also known as the People's Mujahedin Organization of Iran. For further background, see Pattems of Global Terrorism, 2001, sqra note 35, at 141. The UK government banned the MKO in February 2001: Keesing S', 440 1 3. 211 UN DOC.S/25843. For Iraq's complaint, see UN Doc. S/25864; for the reply to the assertion that Iran was acting pursuant to Article 51, see UN Doc. S/25914.

208 209

396

Finnish Yearbook ofIntemationalldw (Vol. X I , 2001)

In November 1994, Iran sent another letter to the Security Council detailing attacks by anti-Iranian terrorists emanating from Iraqi territory, and stated that 'in accordance with its inherent right of self-defence enshrined in Article 51 of the Charter of the United Nations, the Islamic Republic or Iran took two proportional and necessary steps.'212Previously in August 1994, Iran had protested to Iraq about the continued presence on the territory of Lraq of the MKO, and the Iraqi government's support for the organisation.213 Again in July 1996 Iran mounted a major operation. The Iranian govemment reported these actions to the Security Council the next day, adopting a justification similar to Turkey's as to why Iraq was unable to carry out its obligations to prevent terrorists operating in its territory; however, in stark contrast to Turkey, Iran again explicitly invoked Article 51. The letter to the Security Council explained that owing to p r e v a h g circumstances, the Government of Iraq is not in a position to exercise effective control over its territory in the northern part of that country. Consequently, in recent weeks transborder armed attacks and sabotage operations by terrorist groups against Iranian border towns, origmating from Iraqi territory, have been intensified and escalated. In response to these encroachments by terrorist armed groups and in accordance with its mherent right of self-defence enshrined in Article 51 of the Charter, the Islamic Republic of Iran took immediate and proportional measures, which were necessary for curbing and suppressing such aggressive activities.214

The letter then went on to explain that Iranian forces pursued retreating armed groups and targeted their training camps located in Iraq. Iraq subsequently protested against these actions a few days later.215 In April 1999, the Iranian govemment again made allegations concerning the presence of and support for terrorist groups on Iraqi territory following the assassination of a senior member of the Iranian military. The note verbale to the Iraqi government stated: In view of the fact that t h ~ sgroup [the Mujahedin-e Khalq Organisation] plans its terrorist acts in Baghdad and that such acts, which are disruptive of the security of [Iran], could not be planned without coordination with the Iraqi authorities, [Iran] protests strongly against hosting and organizing the MKO terrorist group as well as against provision of facilities to them and aiding and abetting them in carrying out terrorist acts, and calls upon the government of

The Lzmits oftbe Law on the Use ofForce: T~rkey,Iraq and the Kzlrdr

Iraq to identify and extradite those responsible for masterminding this terrorist act and to desist from aiding, abetting and organizing h s terrorist group. The Islamic Republic of Iran reserves its right to legitimate defence with a view to safeguarding its security against terrorist acts.216

Iraq responded that it was not responsible for the actions of the M.

Book Reviews & Review An5cIes

425

Recogruzing the specific intent is relevant also from the point of view of prevention since 'genocide cannot take place unless a certain state of mind has been previously created.'l3 As has been emphatically pointed out by Otto Triffterer, genocidal acts need to be effectively addressed before they become widespread. The moment to stop Hitler would have been right after the so-called 'Reichskristallnacht'. It is therefore important to 'criminalize such an intent already at the very first moment when it becomes manifest in one of the acts' listed in Article 11.14 Schabas shares the concern about prevention as one of the undeveloped aspects of the Convention and boldly proposes to strengthen the relevant provisions making them to include the duty to intervene, where necessary by d t a r y means, to prevent genocide. He does not, however, develop this point any further. The question of State responsibility is another aspect of the Convention that has remained undeveloped. In addition to the obligations on States parties to prevent genocide and to ensure that it d be effectively prosecuted, Article IX of the Convention suggests that States can be responsible for - if not guilty of - the crime of genocide. Schabas is fairly concise as to the implications of this provision, and refers to the decisions to be expected from the ICJ concerning the attribution of the crime of genocide to a State, especially concerning the requirement of specific intent. His analysis includes a brief description of the four genocide cases considered so far by the ICJ. The cases between the Federal Republic of Yugoslavia and the ten NATO States get the most attention, even though genocide is a side aspect raised mainly for jurisdctional reasons. Schabas agrees with the Court's decision on provisional measures and notes that allegations of genocide were in h s context 'far-fetched'. The Yugoslav agent Ian Brownlie's argument that far-reachmg health and environmental damage may fit in the Convention's definition of acts calculated to destroy a group in whole or in part is to Schabas 'fine from a theoretical basis'. It would, however, be 'virtually impossible to distinguish acts of warfare in a general sense from these charges of genocide and it was certainly not the intent of the drafters of the Convention to include this within the scope of the definition'.l5 The book has been organized systematically according to the structure of the Convention to cover everythrng from the preamble to the final clauses. Article I1 which contains the definition of the crime gets understandably the most attention, but several other questions related to the application of the Convention are also raised. The emphasis, again understandably, is on the criminal law aspects. Schabas's handling of Article I11 on ancdlary crimes is especially masterful, and he points out several weaknesses and confusions in the interpretation of that Article either by tribunals, the ILC or the ICC negotiators, whether regardmg the concepts of 'aiding and abetting' (wrongly interpreted by the ICTR) or 'conspiracy' (inadequately reproduced in the ICC statute). It should be pointed out, however, that the ICC defulition of 'conspiracy' in Article 25 (3) (d) of the Statute, which has become a standard provision in recent UN criminal law conventions, was not a result of -

UN Secretariat, as quoted by Schabas at 480. 14 Otto Triffterer, 'Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such', 14 h i d e n Jozlmal o f h t e m a b o n a l h w (2001), at 401. l5 Schabas, at 170 13

426

Finnixh Yearbook: $International

Lazv (Vol. XII, 200 1)

overlooking the origmal provision in the Genocide Convention but represented, both in Rome as before in other UN negotiations, the only viable compromise between the different national constitutional principles and strongly divergent views about conspiracy. It may also be noted that incorporating the contents of Article I11 in the ICC Statute as such would have considerably broadened the scope of its criminalizations.1~ Despite the book's extensive coverage and nearly 600 pages plus appendices, it is hghly readable. Schabas writes with remarkable ease and avoids overloading his sentences with arid detail. As he, almost apologetically, refers to the 'wry and technical' nature of his analysis, it should be taken with a pinch of salt. Schabas tells, in the preface, about the personal experiences that have sensitized h to the subject of genocide. The failure of the international community to intervene in order to prevent the Rwandan genocide has been one point of departure for the book. Schabas refers to his first human rights mission to Rwanda in 1993, noting that none of the participants had devoted much thought to the complicated legal questions involved in the definition of genocide. He then draws a parallel between t h ~ sstate of affairs and the general neglect into which the Convention had fallen in the international human rights community. Seven years later, after several missions to Rwanda as a legal expert and a consultant to the post-genocide government, Schabas paid this debt of honour. His book makes an important contribution to the legal understanding of the crime of genocide. Marja Lehto

THECONCEPTOF MINORITYIN INTERNATIONAL LAW:A CRITICALSTUDYOF THE VITALELEMENTS. By Eyassu Gayun. Juridica Lapponica No. 27, University of Lapland Press, Rovanierni, 2001.138 pages. An attempt to define almost any concept in international law is certain to face considerable difficulties, for the practice of 200 or so states and numerous functionally diverse inter-governmental organizations manifest more chaos than cohesion. It is precisely challenges such as these, however, that underscore the importance of scholarly works in international law, for these bring some minimum amount of consensus. Indeed, the present reality, some might say miracle, of universal international law has been much facilitated by the 'invisible college of international lawyers'. One member of this college, Dr Eyassu Gaym, continues this tradition splendidly by undertaking to further the discussion of a politically (0ver)charged concept in international law, the concept of minority.

16 See Lyal S. Sunga, 'Crimes within the jurisdiction of the International Criminal Court', Empean Jomnal ofcrime, Cn'minalLaw and Cn'minalJtrstice (1998) No. 4, at 384.

Book Reviews

Review A&icIes

427

Dr Gaylm starts by justifjang why the concept of minority needs to be explored. He takes the view that although there already exists a certain consensus on the elements of the definition of 'minority' in international law, scholars should take up the issue because 'we do not have any universal legal instruments that have resolved the dispute concerning the definition'.' One wonders, however, whether a universal legal instrument could f s the meaning of 'minority' or, for that matter, any concept in international law. In the opinion of this reviewer, such a definition might increase the consensus but still not put the issue to rest. Indeed, increased consensus on the definition of 'minority' migh itself provide an impetus for studymg the problems in the new definition. Dr Gayim's approach to the issue of the concept of minority is broad and ambitious. In studymg the concept as broadly as he does, he deals with the whole structure of international society and law, especially the way in which international law allocates agency in general. Accordingly, he is not content to study the standard documents, which most works in this field cite in an almost ritualistic manner, but draws inspiration from the neighbouring social sciences. The comprehensive approach adopted by Dr Gaym offers a broader perspective than the reader might likely have expected when reading the title of the work. He/she will have no trouble following the author's train of thought, however, for he uses a very down-to-earth style to convey the sometimes difficult ideas presented and provides insightful examples of conceptions that might be difficult to understand otherwise. The reader's task is also fachtated by the fluent English of the presentation. Dr Gaym's approach is more to problematize than to offer ready-made solutions. In examining the available d e h t i o n s of the concept of minority, he explicates the grounds on which the extant definitions are based. Because Dr Gaym is not content with some of the formulations used by the known legal experts (e.g., F. Capotorti, J. Deschenes and J. Fawcett) who have defined the term minority, he draws inspiration from the thoughts expressed by writers who belong to other dsciplines (e.g., the writings of L. Wirth, F. Marden and M. Gladys). This wider inter-disciplmary approach has made it convenient for him to tackle one by one those complex and intricate issues embodied in the notion of minority, including the 'silent' features of minorities (i.e., those related to their size and the non-dominant position) and the meaning gven to 'national', 'ethnic', 'indigenous', 'linguistic', 'religous' and racial rninorities.2 This task is conveniently accomplished by examining critically the definitions given by experts and dictionaries to those controversial terms. As he ably demonstrates, different categorizations serve differing interests, thus making a broad view on these categorizations important. The majorities easily define minorities in a manner that margmalizes the latter and curtds their political power. Dr Gayirn's aim is to offer a multifaceted view on these categorizations. The strategy seems to be to make the members of minorities aware of the abuses always present in the use of categorizations and to give them tools to challenge the most rudunentary forms of abuse of power in these situations. The perception of 1 2

See p. 2. See also p. i. See chapter 5.

428

Finnish Yearbook of International law (Vol. XII, 200 l )

indigenous peoples as minorities may strike some, such as the present reviewer, as outdated given all the international activity in recent years to promote indigenous peoples as groups rather than as members of a minority. Still, the author's view is well argued and fits in with his overall conception of the structure of international society and law. Chapter 6 provides an interesting account of how minorities have been defined in national and international practice. In the concluding chapter, Dr Gaylm asks whether the concept of people applies to minorities, or, in other words, are the different sub-groups of states entitled to international legal subjectivity. It will be recalled that in the introductory chapter the author tells the reader that he is a member of a minority and argues that members of minorities can provide new perspectives on questions that affect them, much as women have done in the case of gender issues. Some readers, including the present reviewer, might have considered this point of departure a value-laden perspective on the concept of minority elaborated to promote the right of various minority groups to gain international legal subjectivity. Yet, while Dr Gayirn clearly favours the protection of the rights of minorities, he does not give up his role as a legal scientist who is required, as part of the scientific tradition, to provide as objective a view as possible. The implication, although not explicitly stated, is that the practice of states and international organizations does not support the view that these different sub-groups within states - not even indigenous people(s) - are entitled to international legal subjectivity. Dr Gaylm7s conclusion is convincing but his argument would have been more effective had he problematized his position as a researcher in the tradition of international law. The 'invisible college of international lawyers' has long upheld the state system of international society, and Dr Gayun's conclusion can be seen as adhering to the values of that tradition in most respects. Dr Gaylm's book wdl have a lasting importance for the discussion on the concept of minority; this significance derives from the fact that it does not concentrate on the recent events surrounding the concept but takes a deeper look at the issues involved. Dr Gaylm's study can be recommended to practising lawyers, academic audiences and lay readers alike, for while it is written from the perspective of international law, it takes account of the achievements of other fields in examining the concept of minority. Moreover, the work is written in a down-toearth manner that makes it possible to follow the presentation even without an extensive knowledge of international law or the other sciences involved. From the viewpoint of international law, the book is a great source of reference material in the field, containing as it does elaborate and comprehensive notes in the classical continental style. Its greatest contribution to international law, however, still seems to be its broad perspective on the issue of the concept of minority, widening the sometimes narrow perspectives seen in international legal studies on the subject. Timo Koivurova

Book Reviewes & Review ArticIees

429

EMPIRE.By Michael Hardt and Antonio Negn. Harvard University Press, Cambridge, Mass. and London, 2000.478 pages. By 2000, globalization and the decline of the nation-state had fully engaged intellectuals. After No Logo resistance to the global economy, and European 'social democratic conservatives" nostalgia for the nation-/welfare state, along came Enapire. Spanning over two centuries of Westem cultural, political and economic thought, this wide-rangmg and much debated work by Michael Hardt, a IJS literary theorist, and Antonio Negn, an Italian political phdosopher, links globalization and the decline of the nation-state to the history of capitalism. In an attempt to show that the imperialist nation-state is being superseded by an imperial sovereignty, Hardt and Negn create a new global bad - 'Empire', which has no centre or spatial rooting. As their work is cast in radically conceptual terms, the authors are able to cover a variety of topics and periods, and the book does spread enthusiasm, as the general theme about going beyond boundaries would suggest. The groundwork of the book includes also ambigmties and analytical gaps, which are dustrated below. Not least among these is the utdxzation of several concepts of power, perhaps one for each 'central'l part: 'The Passages of Sovereignty' in the Modem Era (Part 2) and 'The Passages of Production' from the late nineteenth century to the present (Part 3). A r p g that there are 'at least tw0'2 traditions of cultural modernity, Part 2 of the book places rather sweepingly 'transcendence' on one side, as the sign of command and order, and 'immanence' on the other, 'constructive, creative'3 side. Categorizing various modem thinkers accordingly, Section 2.1 makes controversial choices: Kant scholars may be disappointed to see their philosopher on the side of transcendence, and .as immanence and 'humanism' are lumped together, it may be surprising that Heidegger is counted among the better people.4 Section 2.2 links modem transcendent sovereignty to the concepts of nation and people, and after a section on European colonialism, the authors seek distance from both postmodernist and postcolonialist studies by insisting that the present enemy is an entirely new paradigm of power. Section 2.5 summarizes how the US (formal and 'material') constitution has evolved with the times. The crux of the argument so far is that certain elements or tendencies in the US constitution were, and became through time, immanent to production relations, and thus formed an alternative to the European nation-state. After Intermezzo, the book never becomes innovative again until the final section, 'The Multitude against Empire'. By then, the reader has wandered through sections on Marx and various Marxists, the New Deal, the Bretton Woods system, and the new social movements of the 196Os, not to mention an 'empirical' pyramid of contemporary global powers (with the United States, G-7 and so forth on the top tier, transnational corporations and the average nation-state on the second tier, and lesser nation-states, the media, and religious and non-governmental organisations on I

and Negri, Enzpzre, at xvi. Ibid., at 140. 3 IM, at 76. 4 I k d , at 90. 1 Hardt

V

Finnish Yearbook of International Lw (Vol. XII, 200 l)

430

the third tier). If one connects the end of the book to the lucid account of the 'informatizatibn' or 'postrnodemization' of production in Section 3.4, the following ambition emerges: Hardt and Negn wish to rebuild a form of left, paying due attention to recent changes in what they call the 'economic sphere'. Whde they list three political demands (global citizenshp, a guaranteed social wage, and the 'reappropriation' of the means of production), their most creative idea is the 'multitude', the new universal class, which is supposed to challenge Empire. Despite uplifting characterisations such as 'humanity squared': what they nonetheless offer is one more two-dimensional construct. The homogenous 'bodies and brains' of the multitude &splay not much more 'materiality7 &an there was in a map of the territorially defined state system. The multitude indeed feels rather flat - 'humanity squared', as they say. The appeal of the book lies in the starting point: Empire does not conquer territories, therefore imperialism is no more, and this new con&tion should not be explained away in terms of historical 'cycles' or recycled old stories and principles. Its weakness is an utter lack of clarity as to the form into which sovereignty is transmuting and the concurrent change in power relations. A description of the new paradigm of power as 'a hybrid of Nlklas Luhmann's systems theory and John Rawls's theory of justice76indicates how opportunistically the authors drop names while being unclear conceptually. Take Foucault and power, for instance. Hardt and Negn argue that Foucault's work 'allows us to recogme77 a passage towards a 'society of control7*and, second, that Foucault's work again 'allows us to recognize the biopolitical nature of the new paradigm of power.'g All this while they are well aware that Foucault &d not construct any theory of biopolitical society and that instead he analyzed specific institutions; nevertheless, they slide into proclamations such as, 'when power becomes entirely biopolitical', '[slociety . . . reacts like a single bodv7or that Power could 'achieve an effective command over the entire life of the population7.10Instead of really building on Foucault's work, they suggest a paradox of power that 'Foucault constructed implicitly': the new power 'unifies and envelops within itself everv element of social life' vet 'at that verv moment reveals a new context, a new milieu of maximum plurality and uncontainable singularization - a d e u of the event.'" Calling the last pronouncement a 'defLnition of powerYl2 attests to the ambiguous nature of both Empire and the reference to Foucault. To stay with the example, Foucault is mentioned constantly, but he is always dismissed after a while. When his work is cited again, he is accused of f h g to grasp 'the real dynamics of production in biopolitical society7.13Where Foucault saw J

I

J

Ibid., at 72 and 204. Ibid, at 13-1 4. 7 Ibid., at 22. 8 Ibid, at 23. 9 Ibid., at 23. 10 Ibid., at 24. 11 Ibid., at 25. 12 Ibid., at 420, n. 8. 13 Ibid., at 28. 5

6

J

J

Book Reviews c9 Review Articles

43 1

a transition from sovereignty to governmentality, Hardt and Negri see another movement within the concept of sovereignty." They regard Foucault's response to the binary logic of modernity as 'quite traditional'.l5 Finally, Foucault's analyses of the mechanisms of power within institutions such as the prison or the factory are not used, because the walls of these institutions are all coming down.16 Although it seems that Foucault's ideas are not applied consistently throughout the book, it is also unclear whether, and from what point onwards, they are applied or build upon at all. T h s meandering style is unfortunate, because sharp observations are now scattered among analytical gaps. For example, Hardt and Negn note very astutely in 2000, in discussing quick and effective police action on the unbounded terrain of Empire:" Moral intervention often serves as the first act that prepares the stage for military intervention. In such cases, military deployment is presented as an internationally sanctioned police action. Today military intervention is progressively less a product of decisions that arise out of the old international order or even U.N. structures. More often it is dictated unilaterally by the United States, which charges itself with the primary task and then subsequently asks its allies to set in motion a process of armed containment and/or repression of the current enemy of Empire. These enemies are most often called terrorist, a crude conceptual and terminological reduction that is rooted in a police mentality.

While being somewhat critical of US foreign policy, they also state that the United States 'manages international justice, not as a function of its own national motives but in the name of global right7,18yet they do not enter into the subject that the American author Jonathan Franzen expresses as forcefully as this: 'Our national thirst for petroleum, which has already produced two Bush presidencies and an ugly Gulf War, is now threatening to lead us into an open-ended long-term conflict in Central Asia.'l" Any concrete links between sovereignty and the multitude are equally undertheorized. When stressing the organization of opposition through grassroot social movements, Hardt and Negn only pose as a question how the (good) movements can break through constitutionally.20 They also describe the spread of ideologies in terms of ideologes, without analyzing the activities and incentives of consultants, lawyers, officials - or academics themselves. Only theory-laden indications are gven in the last-mentioned direction:21 anthropology and 'irnportant segments of the discipline of history', they say, legtimized colonial rule by producing alterity. While Hardt and Negn have achieved a great deal in integrating their material into one book, puzzles remain. Beyond their argument that some tendencies first appearing within the US constitution are now spreading in a less laudable form, they -

l4 Ikd,

at 88. '5 Ibid., at 184. 16 Ibid., at 330. l 7 Ibid., at 37. 18 Ibid., at 180. l9 Jonathan Franzen, How To Be Alone: Essays (Fourth Estate: London, 2002) at 6. 20 Hardt and Negri, Empire, supra note 1, at 31 1 and 398-400. 21 Ibid., at 125-126.

432

Filanish Yearbook ofhternaional Ldw (Vol. XII, 2001)

never specify in which respects we are already in, or only moving towards, the Empire condtion. Tommi Rah

JURISPRUDENCE OF INTERNATIONAL LAW:THE HUMANITARIAN DIMENSION.By Nikolaos I) and Humanitarian Intewention by the Danish Institute of International Affairs, Krabenhavn: DUPI (1999). For a whde it seemed like this was the issue that was going to define the international political order. The subject being of this nature, it is not particularly well-chosen if the purpose of the book is to look into international jurisprudence (as the main title suggests), J

Book Reviews & Review Artides

since doctrine on humanitarian intervention - being fundamental, in a sense - will probably reflect authors' value choices more than their theoretical and methodologcal inclinations (if those aspects can ever be separated). T h s does not, however, necessarily detract from the book's other values. Tsagourias explains the purpose in h s way: Instead of monolithic evaluations, we need to consider which values are at stake and how they are projected in our action. In order to do this, we need first to acquaint ourselves with the existing lego-jurisprudentialdiscourse . . . m e explore how legal rules which vie to control humanitarian intervention are moulded by theory and how they inform the relevant practice in. cases such as Kosovo, Rwanda or Somalia. Having exposed the constituent elements of legal discourse, we are able to proceed with a redescription under the discursive model which contains reflection, responsibility and vision (p. viii).

In the introduction, he sets out the problem: 'The legal arguments which delineate humanitarian intervention enjoy, per se, inner coherence, certainty and appeal but this is eroded when one becomes acquainted with the "opposite" reasoning which may exert an equally convincing appeal.' Therefore, there is 'the dilemma of having to choose between nomatively contrasting theses' (p. 1). So, 'doctrinal argument has faded to provide the anticipated sense of security and clarity' (p. 2). Therefore, doctrine reverts to theory, but to no avail, because '[tlhe situation . . . becomes circular:' The abstractions of legal theory have to be avoided 'by relylng exclusively on doctrine' but doctrine's problems of definition have to be 'resolved by appealing to theory'. That is why 'we need to disentangle the debate' (p. 2). And this Tsagourias does, in six chapters, before presenting his own model. The first chapter deals with natural law, includmg the social contract theories. Of course, the social contract is a natural law aspect, compared with positivism, but it centres on sovereignty. Chapter two covers positivism, including the international community-oriented argument on international constitutionalism. Thus, already in these two chapters, Tsagourias indicates that what may look utopian, in Martti Koskenniemi's terms, may turn out to be apologist, and vice versa. The policy-oriented school is dismissed in chapter three, because 'the neutrality of the method is questionable since empirical observation is not disassociated from the pursued values' (p. 44). He then comes to that theory, which seems most helpful, being a theory about rather than in international law, namely critical theory. Evoking a large part of the Critical Legal Studies library, Tsagourias comes to the conclusion that 'each line of argument can substitute the other or they can be mutually recombined' (p. 60). This suggests that it is not possible to say for certain whether a doctrinal argument comes from the one or the other theory. And the choice between theories is impossible to base firmly: 'In the particular case of humanitarian intervention, the meta-principles that may apply are those of humanism or sovereignty. Choosing between them reveals the "right" argument but again the choice is arbitrary because there are no meta-meta-principles which would assist us in that choice' (p. 61). The fifth chapter applies these insights to humanitarian intervention in a legal context, namely the prohibition on the use of force. Here he seems to say that what ultimately determines an argument is not the theory of sources, but s o m e h g perhaps even more fundamental: 'It is apparent then that different envisions of sovereignty and international society support different approaches to

434

Finni~bYearbook ofIntemtional Lazv (Vol. XIII, 2001)

(n0n)intervention. The demrna crystallxzes into the confict between order and justice' (p. 67). The ensuing conundrum is displayed convincingly: 'The argument which relies on Article 2(4) invokes the consensual aspect of positive international law and the role of sovereignty whereas that which relies on notions of justice and human rights invokes extra-consensual, naturalistic, aspects' (p. 73). However, '[tlhe demarcation is not clear because the rhetoric can switch freely between the two poles, substituting or recombining them' (p. 76). So, '[olrder is not legtimised autonomously but only by containing an element of justice' and vice versa (p. 78). Chapter six brings in the protection of nationals under the rubric of humanitarian intervention. Here he remarks, quite plausibly, that whether one wants to view such actions as self-defence or humanitarian intervention may depend on whether one sees the state as an entity with 'an autonomous moral standing' (selfdefence) or as one whose 'morality or rights are derivative' (humanitarian intervention) (p. 87). But one could also make the opposite argument, since the state may be worthy of defendmg, even if its rights derive from those of the individuals. The last and crucial chapter is entitled 'Redescription: humanitarian intervention in a dscursive model of human dgmty'. Here Tsagourias reminds us of his critique of international law: 'Legal reasoning with its asseverated tendency of generating objective solutions leads towards hermetic modes of interpretation in the style of "either/orm.' (p. 91) Even though I find 'hermetic' much too strong -after all, rhetoric can 'switch freely' - I agree with the conclusion, that international law has a serious problem. But 'if law's restraining power is based on a rational foundation, what could constrain conduct if we dismantle such foundation?' (p. 94). The answer, the only possible one in my opinion, is that 'our views can only be justified instead of being grounded on some true source' (p. 95). So what to do? ' m e need to identify situations and the concurring set of alternative reactions, contemplate the consequences of each alternative and appraise their inherent values. We also need to inform ourselves of the relevant legojurisprudential arguments' (p. 95). Having done so, and having dsmissed 'previous algorithms', we need to relocate the source of our knowledge or values 'in the indviduals who are now empowered to appreciate, contemplate and decide' (p. 95). Tsagourias introduces 'human dpty' (which, of course, is a central concept also in policy-oriented jurisprudence): 'Human d p t y encompasses our sense of humanity which transgresses the particular indvidual and reveals the solidarity established by acknowledging our humanity and our empowerment to share it' (p. 95). For sure, though, cp]uman dignity as our premise cannot be objectively grounded' (p. 98). And he then analyses a number of cases - from Bangladesh to Kosovo - from h s point of view, with hardly any invocations of the sources of international law. This is where I stop following Tsagourias: He declares that 'the legal position which considers humanitarian intervention as illegal per se is mainly rule-oriented . . . However, it does not address the essential issues which a situation of human catastrophe gives rise to7 (p. 111). Instead, this positivism presents these matters 'as distant issues because the phronesis of the theorising or "lawyerising" person is obliterated by the legal structure.' Consequently, 'the legal arguments which are produced do not correspond to the essence of the action' (p. 112). But to whom is

Book Reviews & Review Adides

435

'the essence of the action' available? For sure, law selects only a few aspects of a situation as relevant, and discards much else. But there is no agreement on what constitutes the essence of the action. If there had been, there would have been no need to call in the lawyers in the first place. I A e many other international lawyers, I was forced to comment on the Kosovo events on an almost d d y basis throughout much of late 1998 and 1999 and even after. I found it very hard to take a definite stand. I can agree with Antonio Cassese (10 European J o m a l oflnternational LdZV (1999) 23-24) and others that there is no positive rule of international law that allows humanitarian intervention of the sort undertaken in Kosovo. That is not unimportant as such. But, that is not the end of the matter - and Cassese et al! do not think so either. The action could have been justified on moral grounds, and perhaps even we lawyers sometimes must accept that the maintenance of the law is not the only relevant good. And it was also important for relevant actors to decide whether to promote the development of a norm allowing and circumscribing such actions - as humanitarian intervention, as an act of necessity, or else. In all of &S, the formal legal evaluation was but a part, but it was an essential part (since we assumed that law matters). It was complemented by reasoning on the underlymg values that were at stake and that coloured our readmg of the law. And here there is plenty of room for critical work. For instance, the humanitarian intervention issue has often been pictured as a conflict between sovereignty and human rights (surprisingly enough by protagonists on both sides). But, as Nico Krisch points out (ibid.), it could have been pictured as a conflict between human rights and peace, and there are other prisms as well, such as a conflict between the rights of two groups of people. I agree fully with Tsagourias that models other than traditional legal reasoning are needed, but they should be complementary to positive law, not replace it. And these models have to be as open to much criticism as the various legal doctrines or 'the law' itself. Tsagourias could have usefully referred to the debate on relativism in human rights, as well as to the post-colonial library in law, social science, et cetera, to scrutinize the doctrine of human rights, and our abhty to know what really matters to other people. He may very well have finished such an enquiry as he did by citing former President Julius Nyerere of Tanzania, who condemned the OAU's inaction in relation to the human rights violations in Africa by saymg that '[b]lackness has become a certificate to kiU with immunity' (p. 99). That is probably where I would have ended, too. The point is, though, that one has to reason to get there, not just assume. But perhaps I would have been convinced, had Tsagourias been able to devote more than eleven pages to the analysis of these cases. Let me also present a couple of other points of criticism. Tsagourias' use of references is sometimes a bit unclear. We do not know whether a reference supplies an example or an authoritative support of his assertions in the body-text, or neither. examples: On p. 50, Fukuyama - who is by no means a lawyer - is invoked as the only source regarding the reception of the policy-oriented school in international law. On p. 51, the famous anthropologist Claude L&-Strauss is referenced as a source for an assertion of what critical legal scholars say. On p. 53 Ronald Dworkin and Duncan Kennedy - neither of whom writes on international law - support a finding on the prohibition of force; their work - different as they are - can,

436

Finnish Yearbook oflntemzationallaw (Vol. XII, 2001)

however and of course, be used as an inspiration for the author's own, and highly plausible, analysis.) Further, I believe that the relation between theories and doctrinal arguments in chapters one to three, five and six could have been developed much further. For instance, it would have been interesting to see a deeper analysis of, say, five to ten legal articles on Kosovo, tracing the underlymg bases of the respective arguments on humanitarian intervention, and comparing them to some of the theoretical writings of the authors concerned. Would they have appeared coherent? What seemed to ultimately trigger their views on Kosovo? T h s is, though, perhaps a misdirected suggestion, since that would have produced a different, and much longer book. At any rate, I would like to finish by quoting Tsagourias7fine final paragraph: Situations such [as] those in Rwanda, Burundi, Liberia, Kampuchea and Kosovo do not need a 'technological' approach of legaltty or illegality. This is inadequate and, above all, it hides the personal responsibility of the international lawyer. Personal responsibility and meaningful influence is achieved only through reflection on what is sipficant and how to achieve it. In order to achieve this, it would be necessary to include in our thinking the whole cadre of indices and also the modes of influencing practice. Consequently, the approach of human dignity pursued in this study contains responsibility, reflection, openness and accountability for the results, but above all a belief in the strength of the theorising person to stand above the thrust of tradition (p. 113).

And, I might add, to engage with it. Pi1 Wrange

INTERNATIONAL LAW SITUATED: AN LAWYER'S STANCETOWARDS CULTURE,

ANALYSISO F THE INTERNATIONAL HISTORY AND COMMUNITY. By Outi Korhonen. Kluwer Law International, The Hague, 2000. xvii + 326 pages.

Beyond 'Azza' Why does everyone keep saylng where they are coming from?l What are we to make of all h s situatedness, all these declarations of speakmg 'as a' white, middle-class, straight, Jewish female, or whatever. Clearly, the point of such 'azza' declarations, as they have been called, is to challenge and correct the idea that there can be a view from nowhere. To situate oneself in this way is to make manifest one's awareness of the injustices and exclusions that follow when knowledge lays claim to transcendental universalism. But has the critique of transcendental universalism bent the stick too far the other way? Do we, as Martin Jay asks in a recent essay, now face a 'situation in which obsession with the situation is itself the problem7?2As Jay observes, 'relativising all views as mere expressions of concrete particularity - a local place in a world of incommensurable, non-totalisable perspectives' risks 1 David Simpson, Sitz~atedness:Or, WhJv We Keep Sqzng Where We're Coming From (Duke University Press: Chapel Hill, 2002). 2 Martin Jay, 'Speaking Azza', Lonhn Review ofBooks, 28 November 2002, at 32.

Book Reviews e9 Review Articalees

437

leaving us without 'sufficient critical purchase to address the pressing problems of the day7.3Besides, how precisely are we to express our concrete particularity? Since identities are plural, traditions contested and communities divided, which aspects, interpretations and elements are to count? To those who indeed conclude that obsession with the situation has become today itself the problem, Intemtionaal LWSituated is an eloquent riposte. For Outi Korhonen shows in &us book that situating ourselves in relation to the things we want to talk about can be a process that is altogether different from, and incomparably more productive than, the ritualwed exchanges and stenle relativizations of 'azza7-speak. Far from weakening our capacity to address the pressing issues of the day, attention to the distinctiveness of our situation can be an exceptionally powerful tool for enhancing that capacity. To understand how, an initial step is to put aside the common assumption that situatedness is only ever about limitations. Recalling the insights of Hans-Georg Gadamer, Korhonen emphasizes that situatedness is also the basis for enlargmg our horizons and revealmg unrealized potentials in current conditions. Or better, it is the basis for revealing the changing interplay between the limitations of our circumstances and the potentials that exist for maximizing our freedom of action. Korhonen's interest is in the interplay of h t a t i o n s and potentials in the work of international lawyers, and in h s context she identifies three 'situational clusters of limitations and potentials' which merit particular attention. These she draws from a close analysis of the actual (and, as she depicts it, exceptionally elaborate and intrigutng) work of international lawyers in relation to one particular dtspute, namely, the dispute surrounding the attempted Russification of Finland in the late 19th and early 20th centuries. In the lawyers' various arguments and counterarguments, she shows how doctrinal issues were understood as inseparable from a range of other, broader or more fundamental issues. To debate the legalities of the 'Finnish Question' was also to debate questions about what culture is, how we can know history, and who gets to take part in the making of a community. Culture, history and community, then, are Korhonen's three situational clusters, and the book is organized as an examination of each of these in turn. But in relation to what precisely are these examined? In what sense or senses is the term 'situation' being used here? In the first place, there is an international legal situation in the sense of a specific dispute or case. This is a legal problem calling for consideration by a jurist, whether as counsel, judge, government official or academic. Secondly, there is the larger situation within which that specific dispute or case is embedded. This is the range of wider concerns, interests and issues (say, about democratic control, poverty alleviation, or technologcal change) which are in some way involved in or affected by the resolution of the dtspute or case. Thirdly, there is the situation of the intemational lawyer herself, her personal circumstances, professional commitments, and so on. An international legal situation is thus a triangle connecting a legal case, the world and the jurists involved, and Korhonen shows how culture, history and community engage all three elements in this triangle. History, for instance, is not just a matter of the widely acknowledged dialectic of

438

Finnijicl Yearbook $International LW(Vol. XII, 200 7 )

stability and change, and the demands of certainty and flexibility. It is also a matter of the lawyer's own position in the stream of time, and of her shifting and uncertain understandings of the character of historical knowlege itself. Lawyers are generally anxious to demonstrate that they have risen above personal interest, group affiliation or community allegiance, and for international lawyers the urge to ensure that no charges of parochialism can be levelled against them is even stronger. What Korhonen's situational approach brings out so forcehlly is that this conception of objectivity cannot be sustained. The lawyer herself is always part of the situation she is engaged in observing, analysing or judgmg. At the same time, however, the situational account also makes clear that this does not entad abandoning the aspiration to objectivity in the different sense of enlarged horizons and enhanced self-awareness. On the contrary, the effect of making explicit issues of culture, history and community that are more commonly left implicit is precisely to strengthen awareness of the scale and complexity of a problem and the choices it involves. Thus, what Korhonen helps us to grasp is that, if international legal work is not unconstrained by the particularities of context and agent, nor yet is it wholly determined by those particularities. As she observes, 'even the most singular and exclusionary structures always [entail] opening points' (p. 292). Here, then, we have a concept of what it means to situate oneself in relation to a problem which is as much a critique of relativist particularism as it is a critique of transcendental universalism. What, however, does this mean in practice? Korhonen wants us to see that cultural, historical and communal conditions can, and should, be acknowledged and debated, rather than disregarded or concealed. Does this take us back into the world of identity politics and situational obsession? It does not, and this may point to a final, and perhaps the most important, sense of the term situation in her book. For if an international legal situation is a triangle connecting a legal case, the world and the jurists involved, it is also the unresolved and ambiguous relations among those three elements. To refer to the situation in this sense is to underscore that nothing is inherently a potential or a limitation, and that particularities have no pre-determined sipficance. What we confront, as Korhonen's Finnish Question case-study abundantly illustrates, is instead material for argument. There can be no once-and-for-all answers with respect to culture, history and community, for everything depends on the contingent interplay of limitations and potentials and what we make of that interplay, how we use it. In Korhonen's words, '[tlhe response must be situational in the demanding sense of the term' (p. 278). Susan Marks

Book Reviews & Review Adides

439

A New Finnish Doctoral Dissertation in International Law ENVIRONMENTAL IMPACT ASSESSMENT IN THE ARCTIC: A STUDYOF THE INTERNATIONALLEGAL NORMSAPPLICABLETO THE PLANNING STAGE OF ENVIRONMENTALLY HARMFUL ACTIVITIES

Timo Koivurova* The doctoral dissertation I am to defend has two main objectives. The first is to examine the legal status of Arctic cooperation, the second to take a systematic look at the norms that apply to the planning-stage of environmentally harmful stationary activities in the Arctic, which I have called Environmental Impact Assessment PIA) norms in the study. These aims are interlinked in that some of the norms adopted in the Arctic cooperation process are EIA norms. Scholars have categorized these norms in so many different ways that it is not at all clear whether they are international legal norms or something else. Any study of the EIA norms that apply in the Arctic must thus also address the legal status of Arctic cooperation in general. Arctic-wide cooperation was launched in 1991 in Rovaniemi when the eight Arctic states - the five Nordic states, the Russian Federation, the United States and Canada - signed a declaration adopting the Arctic Environmental Protection Strategy. This development culminated in the establishment of the Arctic Council in 1996. What makes the legal status of this cooperation difficult to assess, however, is that the forms of cooperation that have been chosen by the Arctic states do not represent the typical forms of cooperation in international law. The majority of the scholars who have analyzed the 1991 Declaration and Strategy for the Protection of the Arctic Environment (AEPS) consider the norms in this instrument bindmg, but it is not clear in what way. Some opine that they are politically binding; most seem to treat them as softly binding, without, however, specifying what they mean by the concept; and there are also those who view the cooperation as operating outside international law altogether. Although the views in the scholarly world on the legal status of the AEPS document differ, the prevdng opinion is that the instnunent is in some manner binding. On the other hand, the available comments on the legal status of the Arctic Council indicate that it is perceived as operating outside international law altogether. When s t u d p g the legal status of Arctic cooperation, it became necessary to examine what general international law provides on how contractual obligations arise in international law. What t h s revealed was that there is a certain degree of confusion in international law on how contractual obligations develop. Various proposals have been put forth, for instance, that states can be bound politically, morally or by way of soft-law, and it has also been suggested that states can make non-legally bindtng agreements. My own conclusion in the thesis is that these h c t i o Praemrsoria, held at the public examination of the doctoral dissertation at the University of Lapland, 24 November 2001. Professor Erik Franckx, Professor of International Law at Vrije Universiteit Brussel acted as the opponent.

*

440

Finnish Yearbook of InternationalLazv (Vol. XI., 200 1)

proposals do not find support in general international law and that it is sdlpacta .rant seruanda that governs the creation of contractual obligations. In other words, states are free to decide whether or not they enter into an agreement with other states, but if they do, the agreements are binding in international law. In order to determine how contractual obligations are created in international law, it was necessary to examine the relevant case-law, in particular that of the International Court of Justice (ICJ). The crucial question from the viewpoint of Arctic cooperation was how - or if - informal instruments bind states and other international legal subjects. Informal instruments are written normative instruments adopted by international legal subjects without the standard formalities of international treaties. The approach of the ICJ to informal instruments has been to presume that they are binding. If the instrument contains commitments between international legal subjects, it is presumptively binding in international law. This presumption can be rebutted, for instance, by showing that there was no intent to produce the agreement. The cases studied indicate that the ICJ does not make any abstract decisions as to the legal status of the whole informal instrument, but, rather, examines provision by provision as to whether an agreement has been reached or not. In order to study the text of the written instruments adequately, however, h s view had to be complemented by dividing norms into chfferent categories through deontic logic. The principal category that emerged here was that of orders, which can be subchvided into dlrect orders and obligations of attempt. The latter are binding in international law but require only that a party make an attempt to observe the norm. The two-pronged general method developed here for studymg the legal status of informal instruments was then used to examine all applicable instruments in this study. In fact, I submit that it would serve as a general method for studying written instruments in international law. My conclusion is that the informal instruments adopted in Arctic cooperation can be deemed binding in international law since no rebuttals are available: in other words, the Arctic states have not explicitly provided that these instruments are nonbinding nor have they made their view on the matter known in any other fashion. I have opted to call these informal instruments 'informal arrangements' rather than 'international treaties' because of the problematic associations related to the terms 'international treaty' and 'soft-law'. In legal terms, there is a difference between the environmental protection instruments adopted within the Arctic cooperation process and other norms, including, for instance, those regulating the forms of h s cooperation. Environmental protection provisions impose obligations of attempt only, whereas the other norms are, as a rule, direct orders. Thus, the norms regulating how the cooperation is to continue, rules on decision-making and participation and organizational mandates are dlrect orders. I can now proceed to the second, and principal focus of my study, ELA norms. The first question to be answered here is whether the special characteristics of the Arctic call for a chfferent, or even stricter, application of international and national

Book Reviews & Review Articles

44 1

EIA procedures in the region. My conclusion here is that a dfferent application is indeed warranted, inasmuch as the characteristics of the Arctic are essential in applying EIA. On the other hand, the special conditions in the region do not require that norms be applied more strictly, for obligations under international law apply similarly to the whole of the territory of states. In any event, the EIA Guidelines adopted as part of Arctic cooperation establish obligations of attempt for the parties in applymg EIA in Arctic conditions. A second difficult task consists in determining the purpose of general norms of international law regulating the planning-stage of environmentally harmful stationary activities, includmg the Arctic. Again, international environmental law scholars have made various proposals. My conclusion, especially in hght of the ICJ7s decision in the Gaba%ovo-Nagymaroscase, is that the goal of international society regulating these situations at present is sustainable development. From a theoretical perspective, the goals advanced by international society are not seen as part of lex lata, but they nevertheless have normative relevance. The key general principles of international law regulating such situations are due diligence, which covers all forms of transboundary pollution, and equitable utilization, whch applies to transboundary watercourses. Many situations studed in my thesis are not governed by treaty procedures. This applies particularly to situations where potential pollution from activities in the Arctic states may damage international areas or where the threat of potential pollution comes from stationary military activities, although treaty gaps remain in all areas of the situations studied in the thesis. It is here that one sees the value of generally applicable standards, the concept of sustainable development and, above all, valid principles of customary international law such as due diligence and equitable utdization. These serve to fill the gaps in treaty law. One shortcoming in the due drltgence principle, however, is that it cannot be invoked in the planning stage of a stationary activity, but only when actual damage has been caused. As it is precisely treaty procedures that operationalize the gudelines of the due diligence principle in the planning stage, its practical sipficance in the Arctic remains uncertain in situations which are not governed by treaty procedures. There have been EIA norms applicable to the Arctic since the begmning of the 20th century, but it was only in the 1990s that they became important. Three main events or developments can be identified that made EIA norms important in the Arctic. The first was the ending of the Cold War. Before the end of the Cold War, cooperation between the Nordic states was the only inter-governmental cooperation process which produced any sipficant impact on EIA norms in the Arctic. When the Cold War ended and the superpowers, two Arctic states, the United States and the Soviet Union, ceased fighting each other on every front, new opportunities emerged for international cooperation in general, and international environmental protection and Arctic cooperation in particular. As mentioned earlier, cooperation in the Arctic has done much to advance EIA, especially the adoption of the EIA Guidelines. The second trend contributing to the EIA norms applicable in the Arctic is the wide international acceptance of sustainable development. This notion took shape in

442

Finnish Yearbook ofInternational LWv o l . XII, 200 1)

the early 1980s and came to provide a framework principle for reconciling two important social values of international society, environmental protection and economic development. That change was reflected in the Brundtland Report of 1987 and culminated in the Rio Conference on Environment and Development in 1992. One milestone in b s regard from the viewpoint of international law was the 1997 ICJ decision endorsing the goal of sustainable development in the Gaba%ovoNagynzam case. Although sustainable development cannot be seen as part of lex lata, it can well be regarded as a goal of international society that has normative relevance in a number of ways. The d u d significant development in the status of ELA norms was the elaboration of EIA procedures, in particular for the performance of transboundary EIA. EIA had been adopted as a national procedure back in the begmning of the 1970s, and the eventual spread of such procedures made it possible for states to conclude treaties on transboundary EIA in which foreign actors and impacts could be linked to the operation of the national EIA procedure in the state of origin. Sustainable development and its entrance onto the scene of international relations had a major impact on the success of EIA procedures and transboundary EIA procedures as well, for the EIA procedure was seen as one of the main tools for implementing the goal. The emergence of transboundary EIA and sustainable development together paved the way for the 1991 Espoo Convention, currently the most advanced treaty on transboundary EIA. Significantly, the Espoo Convention was signed by all eight states participating in Arctic cooperation. There were thus three main developments that coincided in the year 1991: the general international and political setting made it possible to initiate Arctic-wide cooperation; the goal of sustainable development provided new kection for international normative activity, especially encouragmg the adoption of EIA procedures; and the Espoo Convention was signed, providing Arctic-wide possibilities for extending national EIA procedures to other Arctic states and their private legal subjects. My research also shows that the r e p e of EIA norms now applicable in the Arctic has progressed in both quantity and in quality. The regional advances made in the Nordic region, in particular, and between the United States and Canada were complemented by those multilateral treaties of the 1990s which applied to the whole Arctic region. Especially important are the multilateral treaties concluded within the United Nations Economic Commission for Europe, the most important being the Espoo Convention, or the Convention on Environmental Impact Assessment in a Transboundary Context, which was signed in 1991 in Espoo and came into force in 1997. Signed by all eight Arctic states, the Convention has now entered into force for five of these, with a sixth, Iceland, soon to become a party as well. On balance, while the Convention has not been as successful as one might have hoped while it was drafted and signed, it nevertheless provides the best possibilities for managing potential transboundary pollution situations in the Arctic. Significantly, the body of international treaties that provide for EIA norms has grown slowly but steadily. Older treaties are still in force and many new ones have been concluded, especially in the 1990s. With the Arctic Council and the Espoo

Book Reviews & Review Articles

443

Convention yet to realize their full potential, h s gradual accumulation of applicable ELA norms in the Arctic is the most promising sign for adequate management of the planning phase of stationary activities in general, and situations of potential transboundary pollution between the Arctic states in particular.

IN THE ARCTIC:A STUDY OF THE ENVIRONMENTAL IJVPACT ASSESSMENT INTERNATIONAL LEGAL NORMSAPPLICABLETO THE PLANNINGSTAGE OF ENVIRONMENTALLY HARMFULACTIVITIES.By Tirno Koivurova. (Doctoral Dissertation, University of Lapland 2001.) To be published by Ashgate Publishing Limited.*

Mr Koivurova's book's rather long title, namely EnvironmentalImpact Assessment in the Arctic: A J t u 4 of the Intemtional Legal Noms Applicable to the Planning Stage of Environmental& Hdmful Activities, covers its content quite accurately. I was struck by the depth and thoroughness of h s research. One can say that the author has left no stone untumed in the area he set for h s e l f as the object of h s research. In a clear and comprehensible style the author has analysed a topical problem, dscovered the legal principles applicable to it, found the relevant international sources governing this area of law, taken a position, and presented the reader with a set of well-thought out conclusions. The author is, therefore, to be cornmended for having achieved a level of research that makes the fmal product of his efforts a useful contribution to the existing literature on the subject. It moreover demonstrates the latter's ability to conduct scientific research in an independent manner. The topic of his research is beyond any shadow of doubt to be qualified as significant. One of the popular misconceptions is indeed to think of the Arctic as one of the last pristine areas of the world. A closer analysis, however, reveals that ths is not really the case. Because of the prevahg wind hections, for instance, much of the Arctic pollution is produced by the many heavy industries of Europe to the South. The recent remarks of Borge Ousland, the first man to have reached and crossed both the poles by h s e l f , without any outside assistance, might be relevant in this respect. Early in March 2001 he left Novaya Zemlya, Russia, to attain Ellesmere Island, Canada, by the end of May. From h s account it becomes clear that one of the qualities you apparently need to posses these days to become a successful Arctic polar traveller, besides a healthy mind in a healthy body (mens mna in copore sano), is that of being a good swimmer. If this already created a problem for the early expeltions trying the reach the North Pole, thls lfficulty has increased sipficantly during the last decades: 'La couche de glace a ritrici de 15 i 20 % au cours des dix i quinze dernicres annies' stated Ousland in his interview, before adding '[nlous faisons fausse route pour notre environnement' (Le Monde, 16 November 2001). For a long time the Cold War prevented progress in this field. Editor's note: the published book carries the title Environmental Iqbact Assessment in the Arctic: A s t ~ d yof internationallegal noms (Ashgate Publishing Limited, Aldershot, 2002; 369 pages).

*

444

Finnish Yearbook oflnternationalLW(Vol. XII, 2001)

The Arctic, one should not forget, is the shortest route between Russia and the United States. It was only after Gorbachev's introduction ofperestmika andglmlaost in 1986, and their application to the Arctic by means of his Murmansk speech a year later, that the fust signs of rapprochement became visible. Finland seized on the occasion in 1991, the year that Gorbachev declared on Christmas eve that the USSR had ceased to exist, to start direct co-operation between the Arctic states. The field chosen, namely environmental protection, was one of the most neutral areas one could possibly h k of for interstate co-operation. A useful method to try to curb the negative tendency described above, and to promote environmental protection in the Arctic, is the instrument of environmental impact assessment procedures. A jurihcal work on the Arctic obliges the author right from the start to immerse himself in the extremely difficult task of defining his area of application. Defining the Arctic is not an easy task since many different approaches exist in the literature, depending normally on the subject matter treated. This work focuses on environmental issues and yet adopts a rather 'legal' definition, characterized foremost by concerns of precision and stabhty. Indeed, one would have rather expected to find a d e h t i o n based on environmental criteria (isotherms, tree h e etc.), instead of mere reliance on the Arctic Circle (p. 28). The Antarctic experience further adumbrates this submission. If the 1959 Antarctic Treaty, which foremost tried to find a solution to the political tensions that had arisen between some of the o r i p a l claimant states, as well as between them and some non-claimant states, used the 'area south of 60' South Latitude' as its definition, the 1982 Convention on the Conservation of Antarctic Marine Living Resources expanded ths definition to the 'area south of 60' South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem'. The author dsposes quite summarily of the relationship between national and international law, on page 16, by stating that, 'it is essential that the approach adopted in the present study can examine the norms unencumbered by the distinction international/national law'. His examination of this relationship, though, could have profited from further reflection. The issue pops up later in different places, be it with respect to the question of whether so-called obligations of attempt can have a direct influence on national legal systems (p. 139), or the difficulty Canada might have encountered with its own Constitution had it not made the much criticized reservation to the Espoo Convention (pp. 308 et seq.). It might also have shed some adhtional light on the argument made on p. 284 that even though the Finnish Act on Environmental Impact Assessment Procedures limits its own application d o n e tempom's to activities initiated after 14 January 1994, its provision requiring an environmental impact assessment procedure, as a result of an international agreement bindmg on Finland, nevertheless overrides such limitations. The reader is sometimes struck by the disproportionate attention given to particular issues regardless of their degree of relevance to the study as a whole. The author, for instance, includes environmentally harmful stationary activities by the military (p. 19). However, he then produces a long list of instances where the conclusion has been reached that military activities have been excluded from the

Book Reviews & Review ArticZees

445

field of application of a particular treaty (pp. 147 n. 471; 149; 150; 200; 225; and 227) leadmg to the conclusion that, especially with respect to stationary military activities, '[mlany situations studied in the present thesis are not governed by treaty procedures'. The only two exceptions in the plethora of instruments covered, which the author believes to cast a different light on the issue, are the 1997 Guidelines for Environmental Impact Assessment in the Arctic (p. 161) and the 1991 Convention on Environmental Impact Assessment in a Transboundary Context @p. 329 and 360-361). However, the former are mere guidelines and, moreover, use the verb 'should' instead of 'shall' when expressing this idea, while the latter remains in fact silent on the issue (the word 'military' is not mentioned once, neither in the text of the agreement, nor in the appendices). It requires some inventive reasoning by the author to reach the conclusion that, if such military activities were to take place in border areas, they should be subject to the provisions of that Convention. But can one read that much into a convention which is silent on the issue, even if one of the most progressive environmental conventions of the last decades, the 1982 United Nations Convention on the Law of the Sea, in principle excludes warships from the environmental provisions of the Convention and moreover qualifies the flag-state obligation to adopt 'appropriate measures not impairing operations or operational capabilities7of such vessels by the words 'so far as is reasonable and practicable7 (Art. 236). In the intermediate conclusions (pp. 161 and 270) as well as in the final conclusions @. 368) the same basic submissions are stated with respect to environmentally harmful stationary activities undertaken by the military: fzst, that treaty law normally, remains silent; secondly, that general standards nevertheless apply, e n t h g at least some requirements for the country which is planning such activities; and thirdly, that a better approach would be financial and technological assistance. The question can therefore be raised whether these conclusions are of sufficient importance to warrant the particular attention given to this issue throughout the dissertation, especially keeping in mind,primo, that general standards, such as the due diligence principle, d probably not play an important role in very sensitive areas such as the Arctic. Semndo, one may doubt the effectiveness of mere financial and technologcal assistance for bringmg environmentally harmful stationary military activities out into the open, especially if one remembers the Russian Nikitin saga concerning a former nuclear submarine commander. The officer in question had first been arrested in February 1996 for having supplied a Norwegian environmental group with information about radiation risks of abandoned nuclear submarines in the Arctic. He had to wait, though, for a decision of the Russian Supreme Court in September 2000 for his name to be finally cleared of charges of high treason. One might also mention the recent verdict in the Paesko case: a Pacific Fleet captain and journalist, who had been arrested in 1997 for having leaked reports to the Japanese media concerning military dumping of nuclear and chemical waste in the Sea of Japan. After having been initially convicted in 1999, not for hlgh treason, as requested by the public prosecutor, but rather for abuse of office, he was immediately released because of amnesty measures in effect for such offences at that time. But this ruling was later annulled by the Russian Supreme

446

Finnish Yearbook ofInternationalL a w (Vol. XII, 2001)

Court in November 2000. A second trial finally resulted on 25 December 2001 in a sentence of four years of imprisonment by the military court of the Pacific Fleet in Vladivostok. Unlike in the past, bibliographies cannot often claim to be exhaustive today. But this does not always work to the advantage of the researcher, for new requirements are added instead. First of all, the candidate should select materials on the basis of importance and intrinsic value. Secondly, he should also be able to locate a particular work in the wider framework of the available literature. The latter point could have deserved more attention in the theoretical chapter on norm-making in international law, where the work of Jan Klabbers, The Concept ofTrea0 in International Law (1996) is heavily relied upon, but the broader picture is somewhat missing. A similar remark pertains to the discussion of the fundamental issue of binding versus non-binding international instruments. The laboratory where states in a certain way started to experiment with these notions and their delicate interrelationshp, namely the North Sea environmental protection r e p e , does not receive the attention it merits in this respect. The latter reflection also seems to apply to the International Arctic Science Committee. The pioneering role played by this Committee in the rapprochement between the Arctic countries with respect to environmental protection in the area seems to deserve more attention than the one h e devoted to it in the dissertation (p. 348). One should, for instance, not forget that concepts like 'Arctic Climate Impact Assessment', which touch upon the very essence of the dissertation, were initially developed within this Committee. The interrelationship and co-operation between the science community and the political community, as well as their distinct ways of functioning, could certainly have enriched the discussion. The author takes a rather strong position with respect to the bindmg nature of international instruments. Brought back to its essentials, the submission of the author can be summarized by the adagi~m:if pacta, then mnt seruanda. The author goes to great lengths, primarily based on the above-mentioned work of Jan Klabbers, to drive home this particular point. The author is to be commended for having developed in such detail a credible approach to the basic issue at stake. Whether this means that I have to revisit my own assumptions on the matter after having carefully considered the tight legal reasoning is, however, another matter. I keep having great difficulty with statements, like the one to be found on p. 100, where the author states: 'To the knowledge of the present author, there are only few instruments to be found in state practice relating to treaties in which states have agreed on future behaviour and provided explicitly that the document is non- binding'. A prime example is to be found in international fisheries law, were an intended 'twin-track' approach was followed by the international community of states in order to curb over-fishing on the high seas. First of all, there is the legally binding 1995 Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, which just entered into force on 11 December 2001. But at the same time, countries embarked upon the reahzation of a non-legally binding

Book Reviews & Re~iewArticles

447

initiative, namely the 1995 FAO Code of Conduct for Responsible Fisheries. The black and white picture painted by the author seems hardly suited to take into account the provisions of the latter document concerning its exact nature. The parties agreed on the following formulation: This Code is voluntary. However, certain parts of it are based on relevant rules of international law, including those reflected in the United Nations Convention on the Law of the Sea of 10 December 1982. The Code also contains provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993, which, according to FAO Conference resolution 15/93, paragraph 3, forms an integral part of the Code.

As mentioned before, a careful analysis of the North Sea experience with its delicate interplay between documents of a different legal nature might have been illustrative of how complicated and confused these concepts sometimes become in the dady practice of states. Such documents include the non-legally binding Declarations of the International North Sea Conferences, where ambitious goals are laid down, the hybrid kind of actions which can be taken by certain international organizations, in 6a.w OSPAR.COM (based on the 1972 Convention on the Prevention of Marine Pollution from and-based Sources and the 1992 Convention on the Protection of the Marine Environment of the North-east Atlantic) with its binding decisions and non-binding recommendations for setting concrete goals to be attained, and finally the hard law of the European Community, directly applicable to its member states. How can one otherwise explain, in a strictly bi-polar analysis, that states start making reservations to non-binding OSPARCOM recommendations? T h s binary view also leads the author to attribute to findings of a conciliation or e n q q commission effects which may be rather questionable. If the 'reasonable regard' obligation mentioned on p. 57 might still be acceptable - even though one wonders what the exact legal effect of it would be in practice, the 'clearly in violation of its treaty obligations' found on p. 331 seems harder to substantiate. If this were so, one wonders why the parties d d not simply make the decision of the commission of i n q q binding in the text of the agreement itself? One fmal remark concerns the sometimes detaded legal constructions encountered in the work, whose application in practice seem to bewratherfarfetched. The author, for instance, starts applying the provisions of the 1991 Convention on Environmental Impact Assessment in a Transboundary Context to the hypothesis of hydrocarbon exploitation in a maritime zone, which is in dspute between the parties. It is, however, submitted that well before the parties in question start even thinking of initiating a transboundary environmental impact assessment procedure inter .re, ambassadors will already have been recalled or other similar measures taken. Thls could happen even as sookt as the rumour starts spreadmg that the other party might start exploration (whlch is an activity which normally precedes by many years the exploitation phase mentioned on p. 315) in the dsputed area. In other words, unless the disputed character of the zone is first solved between the parties, or the parties agree to establish a joint exploration and exploitation zone beforehand, the application of the Espoo Convention will hardly ever be an issue.

448

Fitznish Yearbook oflntematiod LW (Vol. XII, 200 7)

In conclusion it appears appropriate to emphasize once more the significance of the work, as well as its subject matter. For the reasons just described, I am of the opinion that Mr. Koivurova's study amply demonstrates the latter's ability to conduct scientific research in an independent manner. The high level attained by this work, the topical nature of his research, the comprehensive manner in which the topic has been analysed, as well as the balanced conclusions reached, make it a useful contribution to existing knowledge in this discipline.

Erik Franckx

Heikki Jokela in memoriam* Heikki Jokela, the fsst university researcher and teacher in Finland to devote hunself to private international law, was widely versed in all aspects of law and possessed a strong sense of juridical log~c.His doctoral thesis on Trade in Movable Pmpeqjom the Vienpoint Of Pmvate International Lazv was described as a milestone in legal history in Finland. In his approach to research Jokela was in all respects an internationalist, unrestrained by narrow national perspectives. He exercised considerable influence within the University of Helsinki both as a teacher and researcher in his own particular field and in numerous administrative capacities w i t h the Law Faculty and the university as a whole. Also his contribution to the development of extension studies at the university level was of special sigdicance. He was an honorary member of the Ius Gentium Association. The Jokela family's roots were in the province of Satakunta. Heikki Jokela, however, was born on 14 May 1917 at Ilmajoki in Southern Ostrobotha and went to school in Helsinki where he graduated from Kallio Coeducational School in 1936. He then entered the University of Helsinki and joined the student nation Satakuntalainen Osakunta that brings together students from the Satakunta region and provides them services and social activities. He completed his degree of Master of Laws during the period of peace between the Winter War and the Continuation War in 1941.Jokela was also trained at the bench in 1944. After the war he gained his Licentiate in Laws in 1949 and his Doctor's degree in 1960, and was appointed Docent in 1961. Jokela got married to Ulpu Hirn;dlliinen,equally a lawyer, in 1952. Jokela was called up for mtlttary service in the middle of the Winter War, in January 1940, and was assigned to the First Artillery Training Centre. In the Continuation War he served first as a fire observer in a separate Heavy Grenade Artillery platoon, after which he was seconded to Headquarters of radto intelligence duties under Colonel Paasonen. In &us capacity he served as a headquarters officer for the remainder of the war. Jokela's professional career began with various periods in government offices as a junior secretary responsible for drafang resolutions. A crucial turning point then came with the gamng of a scholarship for fuaher studies in Sweden in 1948, after which he qualified for various university positions. This led to a period of almost ten years, from 1951 onwards, during which he worked as an assistant professor in a number of fields of law. This came to an end in the early 1960's when he began a similar sequence of acting full professorships, again in a variety of fields. Eventually, in 1966, he became the successor to Aatos Alanen as Professor of General Jurisprudence and Private International Law. Jokela occupied this post until his retirement in 1984.

* Heikki Ensio Jokela, professor emeritus of general jurisprudence and private international law, died in

Helsinki on the 10th of January in 2001 at the age of 83 years.

450

Finnish Yearbook oflntemdtiona~law(Vol. XII, 2001)

He& Jokela was a member of numerous state committees, of which particular mention should be made of his long service on the Committee for the Preparation of the Commercial Code. He was also chairman of the Competition Councd, and was most prominent internationally as a member of the Finnish Delegation to the Hague Conference on Private International Law. Jokela's activities in the adrrrrmstration of the University of Helsinki began in 1963 when the then Chancellor, Edwin Linkornies, appointed him as his secretary. Then, on his nomination to a professorship, he became the Vice-Dean of the Law Faculty the following year, in 1967, and subsequently rose to Dean, a position that he occupied until 1975. Ilhis meant that he was also a member in the university's central governing body, the University Small Senate. His involvement with the university ad-stration coincided with the peak in the controversy over degree reform and administrative changes in the Finnish universities, and Jokela acted as a legal advisor in the preparation of many of the statements issued on these matters by the University of Helsinki and by the professors. The first phase of the degree reform also meant a reorganization of the courses in law. During the struggle over reform of the university administration Jokela was able to influence events as the Secretary-General of the newly created Finnish Council of University Rectors in 1971-1983. Jokela identified h s e l f readily with the province of Satakunta. He had been enthusiastically involved in building projects of the Satakunta Student Nation in the 1950's partly in connection with his collaboration with Lmkomies, and later he was chosen the Inspector - an honorary position - of the Nation. Mention should also be made of his long-stanhg membership and chairmanship of the board of the Emil Cedercreutz Foundation and the various duties that he performed in connection with the Satalinna Foundation. He was invited to membership of the Finnish Academy of Science and Letters in 1977. Heikkt Jokela played a decisive role in the development of extension studies at the University of Helsinki, especially in the founding of the Lahti Research and Training Centre, serving as chairman of its governing board in 1980-1 983. Many of h s research topics were stimulated by the extension courses that he had developed. Timo Esko Docent in Private International Law University of H e l s k

Kari Joutsamo in memoriam IGri Joutsamo was the first Finnish professor of European law. He undertook research and teaching in rlvs branch of law as Professor of Public law at the University of Turku from 1982 to 2001 and for five years as Professor of European law at the University of Helsinki in 1995-2000.

I n memoriam

451

Kari Joutsamo was born on 28 November 1946 in Ruokolahti and died on 17 January 2001 in Kaarina. After studying philosophy and history and taking BA degree he took his basic degrees in law (1973). He started his studes in European law in Amsterdam (Diploma in European Integration) and in London. His doctor's thesis in Turku 1979 was on The Role of P r e h a r y Ruhgs in European Integration. In addition to European law, Joutsamo's early studies focused on constitutional law and international law, especially on the law of international organizations. A monograph Vakkyymys pariamentam'smin iiment+ina (1980) (Interpellation as an Instrument in the Parliamentary System) is his most important study in constitutional law. His book about the GATT-system (GAl7'jaijesteimmd; 1984) is well known as a thorough treatise on ths field. Later, from 1999 till his death, he was working on a new reseach project concerning the World Trade Organization WO) In addition to several articles, his main contribution to European law is a very wide textbook and manual called European Law (Eurooppaoikus 1987, 3rd edtion 2000 with three other writers). T h ~ outstandmg s book will be read wherever this area of law is studled in Finnish. Kari Joutsamo had various editorial positions in journals in law. He also had expert functions in relation to practical legal life, includmg expertise in legal disputes and court cases, committees of the Finnish parliament and governmental law Commissions. He coordmated several research projects and programmes, especially in the area of EU law and international trade law. Academic social life never interested I<ari Joutsamo much. Instead, he turned to real life. His favorite hobby was sailing, and in his youth he was a promising competitive yachtsman. His other hobbies were literature and hlstory, especially war history. Heikki I.

European Commission of Human Rights Before 1999, cases were also heard before the now-defunct European Commission on Human Rights. These cases should be cited to Decisions and Reports oftbe European Commission of H m a n Rights (DecisionseY Reports) or to the Yearbook of the European Convention on H m a n Rights or to the European Hzman Rights Reports (EHRR): Kriicher and Md'ler v. SIvitxerland (Application N o . 8463/78), 26 Decisions &Rtpo&s (1982) 24. Iversen v. Norwg, 7 Yearbook ofthe Empean Convention on H m a n Rzghts (1963) 278, at 280.

Citation of United Nations and League of Nations Documents and Texts Resolutions General Assemblv GA Res. 832 (E) 18, December 1954 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the U N , GA Res. 2625 0 , 2 4 October 1970.

From the 31st session the session number is cited in arabic numerals: GA Res. 41 /133,4 December 1986

Security Council SC Res. 181,7 August 1963

Or SC Res. 181 (1963)

ECOSOC First and second session: ECOSOC Res. 1/8,15 February l946 ECOSOC Res. 2/24

Afterwards until 1978 (63rd session): ECOSOC Res. 801 0 , 2 1 December 1966

From 1978: ECOSOC Res. 3,4 May 1981 Or, if no date is indicated, ECOSOC Res. 1981/3

General Injomation for Authors Documents UN documents (including documents of all the UN subsidary bodies) should be given their full UN Doc. reference number on first citation. Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/45/870 (1990), Annex, at 10. Renewing the United Nations: A Programmefor Reform, Report of the Secretary-General, UN Doc. A/5l /g50 (l4 July 1993, paras 170 and 172. Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, ch. TV, UN Doc. A/55/10 (2000). Alain Pellet, First Report on the L a w and Practice Rehing to Reservations to Treaties, UN Doc., A/CN.4/470 (30 May 1995), para. 109. Mpandanjih v. Zaire (No. 138/83), Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc. CCPR/C/OP/2 (1983) Vol. 11, at 164.

Cases Cite a case before the International Court of Justice (ICJ) or the Permanent Court of International Justice (PCIJ) or the Permanent Court of Arbitration by the case name; the names of the parties; the name and the year of the publication in which the decision is found; the page on which the case begins and the page you are referring to. Give the case name as found on the first pages of the report. If an official report of a recent case before the ICJ is not available, materials may be cited to the Court's official website <www.icj-cij.org>. Examples: Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Semn'ty Council Resolution 276 (1770), Advisory Opinion, ICJ Reports (1971) 16, (dissenting opinion of Judge Fitzmaurice) 220, at 294. Midtay and Paramidtay Activities in and against Nicaragua @icaragua v. United States) (ProvisionalMeasures), ICJ Reports (1984) 169, at 433-34, para. 93. Gab6kovo-Na~marosProject (Elungay/Jlovakia), ICJ Reports (1997) 7, (separate opinion of Vice-President Weeramantry) 88, at 102. Nationadty Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Series B, No. 4 (1923) 8. The Case oftheSS Lotus (l+-ance/Turkg),PCIJ Series A, No. 10 (1927) 4, at 23. Rzghts ofMinorites in Upper Silesia (Minority Schooh) (Germany v. Pokand), PCIJ Series A, No. 15 (1928) 54, (dissenting opinion of Judge Huber) 48, at 53. Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France fFrmce/ United State$), 118 Reports of International'ArbitralAwardr (1978) 417, at 428.

The cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) are to be cited as follows: Prosemtor v. DuSko Tadic', Case No. IT-94-I-A, ICTY Appeals Chamber, Judgment (15 July 1999) para. 84. Prosemtor v. Goran Jelisic, Case No. IT-95-10-A, ICTY Appeals Chamber, Judgment (5 July 2001) (separate opinion of Judge Nieto-Navia) para 5. Prosecutor v. Shvko Dokmanovic et al., Case No. IT-95-13a-PT, ICTY Trial Chamber, Decision on the Motion for Release by the Accused Slavko Dokmanovic (22 October 1997) para 34.

F i n n i ~ hYearbook: ofInternational Luw (Vbl. X , 200 l)

Domestic Case Law For domestic case law, use a style of citation of cases that is common in the particular country and be consistent in using that style. If the case has been reported in International Lazv Report.r, the reference should be added: the readers are more likely to have access to these than national reports. For further guidance, please contact the Yearbook.

On the Editing Process Once you have submitted your manuscript as described above, and once it has been approved by the Yearbook and any referee the Yearbook may want to consult, editing can begin. A group of editors will be assigned to your article. They will work through the manuscript, readrng it for sense and consistency in presentation and argument as well as checkmg that such things as notes are all complete and clearly presented. If material is found st.11 to be missing or the manuscript falls short of the standards outlined in these notes, we may have to return the manuscript to you for amendment. We reserve the right to make alterations and corrections to conform with both the general style of the Yearbook and accepted rules of grammar and syntax. Nothmg of substance wdl be changed on your manuscript without your knowledge. Eventually, you will receive proofs for correction. You will kindly be asked to keep corrections to a minimum. The only corrections that should normally be necessary at this point are those relating to type-set errors or those which take account of important material or references not previously available, or subsequent development of notes. Substantial modifications to the text or footnotes can be made only in consultation with and with the consent of the editors. In the end, you will be provided with one free copy of the Finnish Yearbook ofInternationalLazv containing your contribution, together with 25 offprints. Any queries regarding submission, house style and formatting should be directed to the Executive Editor of the Yearbook, [email protected]. The editors of the Finnish Yearbook ofInternationalLazvlook forward to hearing from you!

Ius Gentiurn Association Ius Gentium International Law Association (est. 1983) provides a lively, active and easily accessible forum for all interested in international law and related issues. Ius Gentium organizes events and encourages its members to take,part in international legal discussion and activities, in studying, teaching and researchinginternationallaw.

The Association is an active publisher, the main publication being the Finnish Yearbook of International L w by Iauwer Law I n t e m a t i o n a l / h s Nijhoff Publishers. The Association conducts seminars and discussion groups concentrating on questions of recent interest in international law and related fields. Through its members and activities, Ius Gentium converses with several international legal scholars, research institutes and legal bodies. The members represent a great variety of professions; among them there are diplomats, university professors, lawyers, researchers and students. The members share an interest in global matters in general and in international law in particular. The majority of the members are Finnish citizens. Although most of the members have a legal background, other academic fields, in particular political and social sciences are also represented. Should you have any questions concerning the Ius Gentium Association, please contact the Secretary of the Association via the E& Castrkn Institute of International Law and Human Rights, P.O. Box 4 (Yhopistonkatu 3), FIN-00014 University of Helsinki, Fdand.