A Report on General Principles of International Criminal Law
International criminal law is an autonomous branch of law which deals with international crimes and the courts and tribunals set up to adjudicate cases in which persons have incurred international criminal responsibility. It represents a significant departure from ‘classical’ international law which was mainly considered law created by states for the benefit of states, but tended to ignore the individual as a subject of the law. International criminal law has developed considerably in the last decade and a half, resulting in a complex and re-invigorated discipline.
In this regard The International Criminal Court ushers in a new era in the protection of human rights. The ICC will prosecute genocide, crimes against humanity and war crimes when national justice systems are either unwilling or unable to do so themselves. Scholars review the history of international criminal prosecution, the drafting of the Rome Statute of the International Criminal Court and the principles of its operation, including the scope of its jurisdiction and the procedural regime. It also addresses the difficulties created by US opposition, and analyses the various measures taken by Washington to obstruct the Court.
The Statute is a comprehensive international treaty in which international criminal law has been uniformly codified and as such helps to consolidate the rule of law in international relations. It is a monumental achievement in the field of international legal policy that individuals who have transgressed their obligations to the international community as a whole may be held responsible by an independent international judicial institution. The ICC thus symbolizes jurisdiction exercised on behalf of the community of nations.
General principles of International Criminal Law
International criminal law (henceforth: ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, terrorism) and to make those persons who engage in such conduct criminally liable. They consequently either authorize states, or impose upon them the obligation, to prosecute and punish such criminal conducts. ICL also regulates international proceedings before international courts and tribunals, for prosecuting and trying persons accused of such crimes.
The set of rules regulating international proceedings before international criminal courts and tribunals that is procedural criminal law governs the action by prosecuting authorities and the various stages of international trials.
ICL is a branch of public international law. The rules making up this body of law emanate from sources of international law (treaties, customary law, etc.).1 Hence, they are subject, among other things, to the principles of interpretation proper to that law. However, one should not be unmindful of some unique features of ICL.
1. First, ICL is a relatively new branch of international law. The list of international crimes, that is of the acts for whose accomplishment international law makes the authors criminally responsible, has come into being by gradual accretion.
2. Furthermore, ICL is still a very rudimentary branch of law. The gradual broadening of substantive criminal law has been a complex process. Among other things, when a new class of crime has emerged, its constituent elements (the objective and subjective conditions of the crime, or, in other words, actus reus and mens rea) have not been immediately clear, nor has any scale of penalties been laid down in international rules. This process can be easily explained. Tree main features of the formation of ICL stand out.
The first is that, for a long time, either treaties or (more seldom) customary rules have confined themselves to prohibiting certain acts (for instance, killing prisoners of war or bombing civilians). These prohibitions were, however, addressed to states, not directly to individuals: belligerent Powers were legally obliged to prevent their officials (or, more generally, their nationals) from committing the prohibited acts. It followed that, if any such act was performed, the state to which the individual belonged was responsible under international law vis-à-vis the state of which the victims were nationals. Gradually, by bringing to trial before their courts enemy servicemen who had breached international rules of warfare, states made individuals directly and personally accountable: gradually, state responsibility was either accompanied or replaced by individual criminal liability. When this occurred, the inference became warranted that international customary or treaty rules addressed themselves not only to states but also to individuals, by criminalizing their deviant behavior in time of war. However, this criminalization was insufficient and inadequate: international rules did not provide for either the objective or subjective requirements of the crimes or for the criminal consequences of the prohibited conduct; in other words, they did not lay down the conditions for its criminal repression and punishment.
It follows that international law left to national courts the task of prosecuting and punishing the alleged perpetrators of those acts. As a consequence, municipal courts of each state applied their procedural rules (legal provisions on jurisdiction and on the conduct of criminal proceedings) and rules on ‘the general part’ of substantive criminal law; that is, on the definition and character of the objective and subjective elements of crimes, on defences, etc. Among other things, very often national courts, faced with the indeterminacy of most international criminal rules, found it necessary to flesh them out and give them legal precision by drawing upon their own criminal law. They thus refined notions initially left rather loose and woolly by treaty or customary law.
Finally (and this is the third of the features referred to above), when international criminal courts were set up (first in 1945–7, then in 1993–4 and more recently in 1998 and 2002–7), they did indeed lay down in their Statutes the various classes of crime to be punished; however, these classes were couched merely as offences over which each court had jurisdiction. In other words, the crimes were not enumerated as in a criminal code, but simply as a specification of the jurisdictional authority of the relevant court. The value and scope of those enumerations was therefore only germane to the court’s jurisdiction and did not purport to have a general reach. Given these characteristics of the evolution of ICL, it should not be surprising that even the recent addition of the sets of written rules referred to above has not proved sufficient to build a coherent legal system, as is shown by the heavy reliance by the newly created international courts upon customary rules or unwritten general principles.
3. ICL also presents the unique characteristic that, more than any other segment of international law, it simultaneously derives its origin from and continuously draws upon international humanitarian law and human rights law, as well as national criminal law.
International humanitarian law (IHL) embraces principles and rules designed to regulate warfare both by restraining states in the conduct of armed hostilities and by protecting those persons who do not take part, or no longer take part (having fallen into the hands of the enemy), in combat. As ICL, at its origin, was chiefly concerned with offences committed during armed hostilities in time of war (war crimes), it was only natural for it to build heavily upon international humanitarian rules: violations of these rules, which normally only generated stat responsibility, gradually came to be considered as breaches of law also entailing individual criminal liability.
Furthermore, human rights law lays down the fundamental rights of suspects and accused persons, of victims and witnesses; it also sets out the basic safeguards of fair trial. In short, this increasingly important segment of law has impregnated the whole area of ICL. In addition; most customary rules of ICL have primarily evolved from municipal case law relating to international crimes (chiefly war crimes).
It follows that ICL is an essentially hybrid branch of law: it is public international law impregnated with notions, principles, and legal constructs derived from national criminal law, IHL as well as human rights law. However, the recent establishment of international criminal tribunals, and in particular of the ICC, has given a stupendous impulse to the evolution of a corpus of international criminal rules proper. It can therefore be safely maintained that we are now heading for the formation of a fully edged body of law in this area.
4. A further major feature of ICL, in particular of substantive criminal law, closely bound up with the feature to which we have just drawn attention, ought to be emphasized. The law has a two fold relationship with the general body of public international law. The first relationship is one of mutual subsidiary or support. Strikingly, most of the offences that ICL proscribes and for the perpetration of which it endeavours to punish the individuals that allegedly committed them, are also regarded by international law as wrongful acts by states to the extent that they are large-scale and systematic: they are international delinquencies entailing the ‘aggravated responsibility’ of the state on whose behalf the perpetrators may have acted. This holds true not only for genocide and crimes against humanity, but also for systematic torture, large-scale terrorism, and massive war crimes. When one of these crimes is committed by an individual not acting in a private capacity, a dual responsibility may follow: criminal liability of the individual, falling under ICL, and state responsibility, regulated by international rules on this matter. Admittedly, there is at present a tendency in the international community to give pride of place to the former category of responsibility whilst playing down the latter. Political motivations underpin this trend, chiey the inclination of states to avoid invoking the aggravated responsibility of other states except when they are prompted to do so out of self-interest or on strong political grounds. It is nevertheless a fact that, theoretically, both legal avenues remain open and may be utilized, as is shown by the proceedings for genocide recently instituted by some states before the International Court of Justice6 while at the same time genocide trials are taking place before the ICTY.
The second relationship between public international law and ICL is more complex. Two somewhat conflicting philosophies underlie each area of law. ICL primarily addresses the conduct of individuals and aims at protecting society against the most harmful transgressions of legal standards perpetrated by them (whether they be state agents or persons acting in a private capacity). It therefore aims to punish the authors of those transgressions, while however safeguarding the rights of suspects or accused persons from any arbitrary prosecution and punishment. It follows among other things that one of the mainstays of ICL is the exigency that its prohibitions be as clear, detailed, and specific as possible. This is required by a basic demand of modern legal civilization: anybody, before engaging in a particular conduct, is entitled to be aware of whether such conduct is criminally prohibited or instead allowed. Another, closely linked, fundamental requirement is that no one should be punished for conduct that was not considered as criminal at the time when it was taken. In short, any person suspected or accused of a crime is entitled to a set of significant rights protecting him from possible abuse by the prosecuting authorities.
Sources of law
Article 21 of the Rome Statute, entitled ‘Applicable law’, sets out the legal sources upon which the International Criminal Court may draw. The Statute itself cannot provide answers to every question likely to arise before the
Court and judges will have to seek guidance elsewhere, just as they do under domestic law when criminal codes leave questions ambiguous or simply unanswered.2 International law already has a general response to this problem in Article 38 of the Statute of the International Court of Justice, the international judicial organ created as part of the United Nations in 1945 with jurisdiction over disputes between sovereign States. The ICJ’s Statute de?nes three primary sources of international law: international treaties; international custom; and general principles of law recognized by civilized nations. It is accepted that the three sources are of equal value and that there is no hierarchy among them, although case law has tended to give the third source, general principles of law, a rather marginal signi?cance. According to the Statute of the ICJ, subsidiary means for determining the rules of law are judicial decisions and academic writings. Besides these enumerated sources, international legal rules can also be created by unilateral acts, such as a declaration or a reservation.
The Rome Statute creates a special regime as far as sources of law are concerned. The Statute proposes a three-tiered hierarchy. At the top is the Statute itself, accompanied by the Elements of Crimes and the Rules of Procedure and Evidence. The Rome Statute was adopted at the 1998 Rome Diplomatic Conference, whereas the Elements and the Rules were drafted by the subsequent Preparatory Commission sessions, in 1999 and 2000, and then con?rmed by the Assembly of States Parties at its ?rst session in September 2002.3Although Article 21 suggests that the Statute, the Elements and the Rules are all of equal importance, provisions elsewhere in the Statute make it clear that, in case of con?ict, the Elements (Article- 9) and the Rules (Article-51) are overridden by the Statute itself.
The second tier in the hierarchy of sources consists of ‘applicable treaties and the principles and rules of international law, including the established principles of the international law of armed con?ict’. This category rather generally corresponds to the sources of international law set out in Article 38 of the Statute of the ICJ, although the wording is quite original. There is no express mention of customary international law, but it is surely covered by the reference to ‘principles and rules of international law’.
The third tier in the hierarchy is pointed towards domestic law. Article-21 invites the Court, should it fail to resolve questions applying the ?rst two sources, to resort to general principles of law derived from national laws of legal systems of the world including, as appropriate, ‘the national laws of States that would normally exercise jurisdiction over the crime’. The reference to general principles enhances the role of comparative criminal law and corresponds, in practice, to what international judges do already before the ad hoc tribunals. The special attention given to national laws of States that would normally exercise jurisdiction is intriguing because it suggests that the law applied by the Court might vary slightly depending on the place of the crime or the nationality of the offender.
As sources of law, the Statute does not formally recognize the important body of international human rights treaties and declarations that has developed since the Universal Declaration of Human Rights in 1948, although arguably this is included in the general reference to applicable treaties and principles and rules found in Article 21(1) (b). However, Article 21(3) states that the application and interpretation of law ‘must be consistent with internationally recognized human rights’. There are obvious implications of this principle with respect to the rights of the accused.
Interpreting the Rome Statute
The Rome Statute provides little in the way of guidance as to the rules of legal interpretation that ought to be followed. As an international treaty, the governing principles are those contained in Articles 31 and 32 of the1969 Vienna Convention on the Law of Treaties. They establish, as a general rule of interpretation, that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article 31 of the Vienna Convention indicates that the context should include the preamble of the Rome Statute, as well as the Final Act adopted on 17 July 1998. In addition, subsequent agreements, such as the Rules of Procedure and Evidence and the Elements of Crimes, are germane to interpretation. As supplementary means of interpretation, the Vienna Convention points to the drafting history of the Statute, but only when the meaning is ambiguous or obscure, or the general rule of interpretation leads to an absurd or unreasonable result.9 But there will be those who argue that, as a source of criminal law, the Rome Statute should be subject to the rule of ‘strict construction’, or that in the event of ambiguity or uncertainty, the result more favorable to the accused should be endorsed. Such a rule is drawn from national criminal law practice. It is con?rmed at least with respect to the de?nitions of crimes, in Article 22(2) of the Rome Statute: ‘The de?nation of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the de?nition shall be interpreted in favour of the person being investigated, prosecuted or convicted.’ Article 22(2) is in many respects a reaction to the large and liberal approach to construction taken by the judges of the International Criminal Tribunal for the Former Yugoslavia. The approach to the de?nitions of crimes taken in such cases as the Tadic jurisdiction decision, which quite dramatically opened up the category of war crimes to include offences committed in non-international armed con?ict, was rather clearly not within the spirit of strict construction.10Frequently, the judges of the Yugoslav Tribunal have invoked the principles of interpretation in the Vienna Convention on the Law of Treaties, which are essentially contextual and purposive in scope.11The Rome Conference was obviously unsettled by such judicial licence, and Article 22(2) is the result. The wording of Article 22(2) is precise enough to leave open the question of whether or not strict construction applies to provisions of the Statute other than those that de?ne the offences themselves. When problems of interpretation arise, the ‘contextual rule’ of the Vienna Convention and the principle of strict construction drawn from national legal practice, as well as from Article 22, may lead to very different results. The judges of the Court will have to resolve this without any substantial assistance from the Statute. Perhaps the judges recruited from the public international law ?eld will lean towards the Vienna Convention while those who are criminal law practitioners in national legal systems will favour strict construction.
4.1 Presumption of innocence
The presumption of innocence, recognized in Article 66 of the Statute, imposes the burden upon the prosecution to prove guilt beyond a reasonable doubt, a specialized application in criminal law of a general rule common to most forms of litigation, namely, that the plaintiff has the burden of proof. But the presumption of innocence has other manifestations, for example in the right of an accused person to interim release pending trial, subject to exceptional circumstances in which preventive detention may be ordered, the right of the accused person to be detained separately from those who have been convicted, and the right of the accused to remain silent during the investigation and during trial. Several of the rules that re?ect the presumption of innocence are incorporated within the Statute.
It is a fundamental principle embodied in [the presumption of innocence] which protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court. Article 6, paragraph 2 [of the European Convention on Human Rights], therefore, may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.
4.2 Rights of the accused
During World War II, Churchill and other Allied leaders’ ?irted with the idea of some form of summary justice for major war criminals.22But, speaking of the Nuremberg trial, prosecutor Robert Jackson said that history would assess the proceedings in light of the fairness with which the defendants were treated. Only a few years later, one of the ‘successor military tribunals at Nuremberg held that Nazi prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity. Such guarantees include the presumption of innocence, the right of the accused to introduce evidence, to confront witnesses, to present evidence, to be tried in public, to have counsel of choice, and to be informed of the nature of the charges.23And, more recently, the judges of the International Criminal Tribunal for the Former Yugoslavia, in the ?rst major ruling of the Appeals Chamber, said: ‘For a Tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments.’24As if there could be any doubt, the Rome Statute ensures the protection of the rights of the accused with a detailed codi?cation of procedural guarantees. Article 67 of the Rome Statute, entitled ‘Rights of the accused’, is modeled on Article 14(3) of the International Covenant on Civil and Political Rights, one of the principal human rights treaties.25The right to a fair trial is also enshrined in the Universal Declaration of Human Rights,26the regional human rights conventions,27as well as in humanitarian law instruments.28 The general right to a ‘fair hearing’ established in the chapeau of Article 67 of the Statute provides defendants with a powerful tool to go beyond the text of the Statute, and to require that the Court’s respect for the rights of an accused keep pace with the progressive development of human rights law. The case law of the Strasbourg organs, established to implement the European Convention on Human Rights, has used this residual right to a fair hearing to ?ll in some of the gaps in the more speci?c provisions.29 That the term ‘fair hearing’ invites the Court to exceed the precise terms of Article 67 in appropriate circumstances is con?rmed by the reference within the chapeau to ‘minimum guarantees’. The term ‘fair hearing’ also suggests that, where individual problems with speci?c rights set out in Article 67 do not, on their own, amount to a violation, the requirement of a fair hearing may allow a cumulative view and lead to the conclusion that there is a breach where there have been a number of apparently minor or less signi?cant encroachments on Article 67.30 The case law of international human rights tribunals has developed the notion of ‘equality of arms’ within the concept of the right to a fair trial.31 But this jurisprudence may be too restrictive, as it is rooted in national prosecutions. The ICTY Appeals Chamber has noted that, when international tribunals are concerned, the scope given to the defence under the principle of ‘equality of arms’ deserves a more liberal interpretation. According to the Appeals Chamber, ‘[i]t follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case. The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.’ The ICTY has considered it important and inherent in the concept of equality of arms that each party be afforded a reasonable opportunity to present his or her case under conditions that do not place him at an appreciable disadvantage vis-`a-vis his opponent’. Moreover, ‘the concept of equality of arms could be exempli?ed having regard to the right to call witnesses as between the Prosecution and the Defence, as well as the duty of the Prosecution to disclose relevant material to the Defence’. The Statute also states that the hearing must be ‘conducted impartially’. According to the European Court of Human Rights, ‘impartiality’ means lack of ‘prejudice or bias’. It comprises both a subjective and an objecttive dimension: ‘[t]he existence of impartiality . . . must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, namely, ascertaining whether the judge offered guarantees suf?cient to exclude any legitimate doubt in this respect’. Here, too, the case law of the ad hoc tribunals provides guidance as to how such provisions are applied in a context of international criminal justice. In one case, defendants challenged the impartiality of a judge who had, during the proceedings, been elected vice-president of her country. Dismissing the argument, the Appeals Chamber noted that she had not exercised any executive functions while the trial was underway. It said the test to be applied was ‘whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgment) would be that [the judge] might not bring an impartial and unprejudiced mind to the issues arising in the case’. Among the guarantees to the defendant set out in Article 67 are the right to be informed in detail of the nature, cause and content of the charge, to have adequate time and facilities for the preparation of the defence, to communicate freely with counsel of one’s choosing, to be tried without undue delay, to be present at trial, to examine witnesses, and to bene?t from the services of an interpreter if required. The International Covenant on Civil and Political Rights is more than thirty years old and, re?ecting evolving contemporary standards of procedural fairness, the Rome Statute goes somewhat beyond the minimum requirements found in Article 14(3) of the Covenant. Thus, Article 67 of the Statute ensures the right to silence, the right to make an unsworn statement, and a protection against any reversal of the burden of proof or an onus of rebuttal. In addition to persons charged with an offence, the Statute also enumerates rights that accrue to ‘persons during an investigation’and to persons about to be questioned by the Prosecutor or even national authorities for crimes within the jurisdiction of the Court.
Individual criminal responsibility
The International Criminal Court is concerned with trying and punishing individuals, not States. ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’, wrote the Nuremberg Tribunal in 1946. This philosophy is re?ected in Article 25 of the Rome Statute. Proposals that the Court also exercise jurisdiction over corporate bodies in addition to individuals were seriously considered at the Rome Conference. While all national legal systems provide for individual criminal responsibility, their approaches to corporate criminal liability vary considerably. With a Court predicated on the principle of complementarity, it would have been unfair to establish a form of jurisdiction that would in effect be inapplicable to those States that do not punish corporate bodies under criminal law. During negotiations, attempts at encompassing some form of corporate liability made considerable progress. But time was simply too short for the delegates to reach a consensus and ultimately the concept had to be abandoned. The International Criminal Court, like its earlier models at Nuremberg, The Hague and Arusha, is targeted at the major criminals responsible for large-scale atrocities. Most of its ‘clientele’ will not be the actual perpetrators of the crimes, soiling their hands with ?esh and blood. Rather, they will be ‘accomplices’, those who organise, plan and incite genocide, crimes against humanity and war crimes. The Court can approach this issue in two different ways. The ?rst is to consider the planners and organisers as principal offenders. The District Court of Jerusalem held Adolf Eichmann to be a principal offender ‘in the same way as two or more persons who collaborate in forging a document are all principal offenders’, they may be tried as accomplices, who aid or abet the principal offenders. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia has stated that there is a customary law basis for the criminalization of accessories or participants. Either approach will work under the Rome Statute, which in Article 25 sets out rather elaborate texts dealing with complicity or secondary liability. But, in one case, the ICTY Appeals everything described in paragraph (b). The Rome Statute does not indicate whether there is some quantitative degree of aiding and abetting required constituting the material acts involved in complicity. Here, it departs from a model that was familiar to the drafters, the 1996 ‘Code of Crimes’ of the International Law Commission, which speci?es that complicity must be ‘direct and substantial’. The judges of the ad hoc tribunals have read this requirement into the complicity provisions of their statutes, despite the silence of their statutes. The absence of words like ‘substantial’ in the Rome Statute, and the failure to follow the International Law Commission draft, may suggest that the Diplomatic Conference meant to reject the higher threshold of the recent case law of The Hague and Arusha. It is clear that mere presence at the scene of a crime, in the absence of a material act or omission, does not constitute complicity. But, where the accused has a legal duty to intervene, because of a hierarchically superior position for example, presence without any other overt act may amount to a form of participation; the failure to intervene constitutes encouragement or incitement. However, aside from the speci?c provision dealing with responsibility of commanders and other superiors, there is no criminal liability established in the Statute for mere failure to act. The Rome Statute also speci?cally provides for the incomplete or ‘inchoate’ crime of direct and public incitement to commit genocide, an offence that takes place even if there is no result. The text is derived from Article III(c) of the Genocide Convention, a provision which was controversial in 1948 and which remains so today. When the Genocide Convention was being drafted, the terms ‘direct and public’ were added, mainly at the request of the United States, in order to limit the scope of the provision. The United States was concerned that this might encroach upon the right of free speech. There were unsuccessful efforts during the drafting of the Rome Statute to enlarge the inchoate offence of incitement so as to cover the other core crimes but the same arguments that had been made in 1948, essentially based on freedom of expression, resurfaced. The issue of conspiracy has vexed international criminal law since Nuremberg. Under the common law system, a conspiracy is committed once two or more persons agree to commit a crime, whether or not the crime itself is committed, whereas in continental systems inspired by the Napoleonic tradition, conspiracy is generally viewed as a form of complicity or participation in an actual crime or attempt. Here, the Rome Statute strikes a compromise, requiring the commission of some overt act as evidence of the conspiracy but imposing no requirement that the crime itself actually be committed.
Responsibility of commanders and other superiors
One of the dilemmas of war crimes prosecution is the difficulty of linking commanders to the crimes committed by their subordinates. The Rome Statute requires proof of guilt beyond a reasonable doubt. In cases where this is forthcoming, the commanding superior’s guilt sits on a plane that is much higher than that of the underling who follows orders. As a Trial Chamber of the Yugoslav Tribunal has noted, ‘the Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence rational material or who knowingly refrain from preventing or punishing the perpetrators of such crimes’.57 But, while responsibility of a commander, in the absence of actual proof that orders were given, might seem probable, judges may be reluctant to convict based solely on such circumstantial evidence. This probably explains why Louise Arbour, Prosecutor of the Yugoslav Tribunal, waited for many weeks before indicting President Milosevic for crimes against humanity. She was unsatisfied with the circumstantial evidence of atrocities in Kosovo for which he had been condemned in the international press and was awaiting more concrete evidence that he had ordered them before proceeding.
There are two possible solutions to the dilemma of prosecuting commanders when direct evidence is lacking that they ordered crimes or knowingly ignored their perpetration. The first is to create a presumption by which commanders are deemed to have ordered the crimes committed by their subordinates, leaving it to the commander to answer the charges by establishing that no such orders were given. This technique is common in domestic criminal systems where it is difficult to prove that certain crimes were committed knowingly, such as environmental damage, false advertising and driving while intoxicated. This simplifies considerably the task of prosecutors, but it runs up against the principle of the presumption of innocence. Moreover, Article 67 of the Rome Statute expressly excludes any mechanism by which the burden of proof is shifted onto the accused. The other solution is to prosecute the commander not for ordering the crime itself, but for being negligent in preventing it. This second approach has some precedents to support it and is enshrined in Article 28 of the Rome Statute.
Mens rea or mental element
Criminal law sets itself apart from other areas of law in that, as a general rule, it is concerned with intentional and knowing behaviour. An individual who causes accidental harm to another may be liable before some other body but will by and large not be held responsible before the criminal courts. Intent is often described using the Latin expression mens rea (‘guilty mind’), taken from the phrase actus non facit reum nisi mens sit rea. But, even if it is understood that a criminal act must be intentional and knowing, there are degrees of intention ranging from mere negligence to recklessness and full blown intent with premeditation.68 In keeping with the seriousness of the offences over which the Court has jurisdiction, the Rome Statute sets a high standard for the mental element, requiring in paragraph (1) of Article 30 that ‘[u]nless otherwise provided’ the material elements of the offence must be committed ‘with intent and knowledge’.69 Int wo subsequent paragraphs, the Statute defines these concepts. A person has intent with respect to conduct when that person means to engage in the conduct. A person has intent with respect to a consequence when that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Knowledge is defined as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. Article 30 defines ‘knowledge’, adding that ‘know and knowingly’ shall be construed accordingly.
A defence is an answer to a criminal charge. It is used to denote ‘all grounds which, for one reason or another, hinder the sanctioning of an offence despite the fact that the offence has fulfilled all definitional elements of a crime’.84 Previous international criminal law instruments have made no real attempt at even a partial codification of defences, confining themselves to rather limited issues such as the inadmissibility of the defence of superior orders. Case law on war crimes prosecutions suggests that, aside from superior orders and command of the law, the main pleas invoked by the accused are acting in an official capacity, duress, military necessity, self-defence, reprisal, mistake of law or fact, and insanity.
The Rome Statute partially codifies available defences in Articles 31, 32 and 33. Article 31, entitled ‘Grounds for excluding criminal responsibility’, 85 deals specifically with insanity, intoxication, self-defence, duress and necessity. Article 32 addresses mistake, and Article 33 concerns superior orders and prescription of law. The Statute allows the Court to accept other defences,86 relying on the sources set out in Article 21(1). Indeed, it affirms a general right of the accused to raise defences.87 Obvious candidates process, consent and reprisal.88 Nevertheless, where the defence intends to raise an uncodified defence, it is required by the Rules of Procedure and Evidence to give notice to the Prosecutor prior to trial, and to obtain a preliminary ruling on the admissibility of the defence from the Trial Chamber.89 Other defences are formally excluded, either by the terms of the Statute itself defence of official capacity,90 lack of knowledge (in the case of command responsibility)91 and superior orders (in cases of genocide and crimes against humanity)92 – or by international case law– for example, tu quoque (literally, I can do to you what you have done to me).93 Insanity as a defence has arisen only rarely in the case law of major war crimes prosecutions. Rudolf Hess unsuccessfully raised it at Nuremberg. The text of Article 31(1)(a) echoes the so-called M’Naghten rules derived fromthe commonlaw,94 butwould also seem to be generally consistent with the approach taken in Romano-Germanic and Sharia systems.An individual who succeedswith a plea of insanity is entitled toa declaration that he or she is ot criminally responsible. The Statute does not speak directly to the burden of proof in cases of the defence of insanity. Is a defendant required only to raise a doubt about mental capacity, ormust he or she actually prove such an exception based on a preponderance of evidence? Domestic justice systems take different views of this matter. The International Criminal Tribunal for the Former Yugoslavia has opted for the preponderance of evidence standard, making proof of insanity more difficult for the accused.95 yet.
Article 67 of the Statute, which shields the accused from ‘any reversal of the burden of proof or any onus of rebuttal’, may compel the less onerous requirement that the accused only raise a reasonable doubt.
The Rome Statute declares that crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.106 because there is no statutory limitation provided within the Statute itself, it seems that Article 29 is directed more at national legislation. Many domestic criminal law systems provide for the statutory limitation of crimes, even the most serious.107 Under French law, for example, prosecutions for murder are time-barred after ten years.108 Codes derived from the Napoleonic model generally have similar provisions. At his trial in Israel in 1961, Nazi war criminal Adolf Eichmann invoked a fifteen-year limitation period in force in Argentina, from where he had been kidnapped. The District Court of Jerusalem ruled that Argentine norms could not apply, adding a reference to applicable Israeli legislation declaring that ‘the rules of prescription . . . shall not apply to offences under this Law’.109 International opposition to statutory limitation for war crimes, crimes against humanity and genocide has taken the form of General Assembly resolutions,110 and treaties within both the United Nations system111 and that of the Council of Europe.112 But the treaties have not been a great success in terms of signature and ratification; the United Nations instrument still has less than fifty States parties. The low rate of adhesion to the United Nations Convention has led some academics to contest the suggestion that this is a customary norm.113 Nevertheless, in the Barbie case, the French Cour de cassation ruled that the prohibition on statutory limitations for crimes against humanity is now part of customary law.114 Article 29’s role in the Statute would appear to be part of the complex relationship between national and international judicial systems. It acts as a bar to States who might refuse to surrender offenders on the grounds that the offence was time-barred under national legislation. More than that, Article 29 may effect the prohibition on statutory limitation that the international treaties have failed to do.115
Creation of the Court
War criminals have been prosecuted at least since the time of the ancient Greeks, and probably well before that. The idea that there is some common denominator of behavior, even in the most extreme circumstances of brutal armed conflict, confirms beliefs drawn from philosophy and religion about some of the fundamental values of the human spirit. The early laws and customs of war can be found in the writings of classical authors and historians. Those who breached them were subject to trial and punishment. Modern codifications of this law, such as the detailed text prepared by Columbia University professor Francis Lieber that was applied by Abraham Lincoln to the Union army during the American Civil War, proscribed inhumane conduct, and set out sanctions, including the death penalty, for pillage, raping civilians, abuse of prisoners and similar atrocities. Prosecution for war crimes, however, was only conducted by national courts, and these were and remain ineffective when those responsible for the crimes are still in power and their victims remain subjugated. Historically, the prosecution of war crimes was generally restricted to the vanquished or to isolated cases of rogue combatants in the victor’s army. National justice systems have often proven themselves to be incapable of being balanced and impartial in such cases.
The Nuremberg and Tokyo trials
In the Moscow Declaration of 1 November 1943, the Allies affirmed their determination to prosecute the Nazis for war crimes. The United Nations Commission for the Investigation of War Crimes, composed of representatives of most of the Allies, and chaired by Sir Cecil Hurst of the United Kingdom, was established to set the stage for post-war prosecution. The Commission prepared a ‘Draft Convention for the Establishment of a United Nations War Crimes Court’, basing its text largely on the 1937 treaty of the League of Nations, and inspired by work carried out during the early years of the war by an unofficial body, the London International Assembly. But it was the work of the London Conference, convened at the close of the war and limited to the four major powers, the United Kingdom, France, the United States and the Soviet Union, that laid the groundwork for the prosecutions at Nuremberg. The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT) was formally adopted on 8 August 1945, and was promptly signed by representatives of the four powers. The Charter of the International Military Tribunal was annexed to the Agreement. This treaty was eventually adhered to by nineteen other 6 introduction to the international criminal court States who, although they played no active role in the Tribunal’s activities or the negotiation of its statute, sought to express their support for the concept. In October 1945, indictments were served on twenty-four Nazi leaders, and their trial – known as the Trial of the Major War Criminals – began the following month. It concluded nearly a year later, with the conviction of nineteen defendants and the imposition of sentence of death in twelve cases. The Tribunal’s jurisdiction was confined to three categories of offence: crimes against peace, war crimes and crimes against humanity. The Charter of the International Military Tribunal had been adopted after the crimes had been committed, and for this reason it was attacked as constituting ex post facto criminalisation. Rejecting such arguments, the Tribunal referred to the Hague Conventions, for the war crimes, and to the 1928 Kellogg–Briand Pact, for crimes against peace. It also answered that the prohibition of retroactive crimes was a principle of justice, and that it would fly in the face of justice to leave the Nazi crimes unpunished. This argument was particularly important with respect to the category of crimes against humanity, for which there was little real precedent. In the case of some war crimes charges, the Tribunal refused to convict after hearing evidence of similar behaviour by British and American soldiers.
In December 1945, the four Allied powers enacted a somewhat modified version of the Charter of the International Military Tribunal, known as Control Council Law No. 10. It provided the legal basis for a series of trials before military tribunals that were run by the victorious Allies, as well as for subsequent prosecutions by German courts that continued for several decades. Control Council Law No. 10, which was really a form of domestic legislation because it applied to the prosecution of Germans by the courts of the civil authorities, largely borrowed the definition of crimes against humanity found in the Charter of the Nuremberg Tribunal, but omitted the latter’s insistence on a link between crimes against humanity and the existence of a state of war, thereby facilitating prosecution for pre- 1939 crimes committed against German civilians, including persecution of the Jews and euthanasia of the disabled. Several important trials were held pursuant to Control Council Law No. 10 in the period 1946–8 by American military tribunals. These focused on groups of defendants, such as judges, doctors, bureaucrats and military leaders.
In the Pacific theatre, the victorious Allies established the International Military Tribunal for the Far East. Japanese war criminals were tried under similar provisions to those used at Nuremberg. The bench was more cosmopolitan, consisting of judges from eleven countries, including India, China and the Philippines, whereas the Nuremberg judges were appointed by the four major powers, the United States, the United Kingdom, France and the Soviet Union.
At Nuremberg, Nazi war criminals were charged with what the prosecutor called ‘genocide’, but the term did not appear in the substantive provisions of the Statute, and the Tribunal convicted them of ‘crimes against humanity’ for the atrocities committed against the Jewish people of Europe. Within weeks of the judgment, efforts began in the General Assembly of the United Nations to push the law further in this area. In December 1946, a resolution was adopted declaring genocide a crime against international law and calling for the preparation of a convention on the subject. Two years later, the General Assembly adopted the Convention for the Prevention and Punishment of the Crime of Genocide. The definition of genocide set out in Article II of the 1948 Convention is incorporated unchanged in the Statute of the International Criminal Court, as Article 6. But, besides defining the crime and setting out a variety of obligations relating to its prosecution, Article VI of the Convention said that trial for genocide was to take place before ‘a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.
An early draft of the Genocide Convention prepared by the United Nations Secretariat had actually included a model statute for a court, based on the 1937 treaty developed within the League of Nations, but the proposal was too ambitious for the time and the conservative drafters stopped short of establishing such an institution. Instead, a General Assembly resolution adopted the same day as the Convention called upon the International Law Commission to prepare the statute of the court promised by Article VI.
International Law Commission
The International Law Commission is a body of experts named by the United Nations General Assembly and charged with the codification and progressive development of international law. Besides the mandate to draft the statute of an international criminal court derived from Article VI of the Genocide Convention, in the post-war euphoria about war crimes prosecution the General Assembly had also asked the Commission to prepare what are known as the ‘Nuremberg Principles’, a task it completed in 1950, and the ‘Code of Crimes Against the Peace and Security of Mankind’, a job that took considerably longer. Indeed, much of the work on the draft statute of an international criminal court and the draft code of crimes went on within the Commission in parallel, almost as if the two tasks were hardly related. The two instruments can be understood by analogy with domestic law. They correspond in a general sense to the definitions of crimes and general principles found in criminal or penal codes (the ‘code of crimes’), and the institutional and procedural framework found in codes of criminal procedure (the ‘statute’).
Meanwhile, alongside the work of the International Law Commission, the General Assembly also established a committee charged with drafting the statute of an international criminal court. Composed of seventeen States, it submitted its report and draft statute in 1952. A new committee, created by the General Assembly to review the draft statute in the light of comments by Member States, reported to the General Assembly in 1954. The International Law Commission made considerable progress on its draft code and actually submitted a proposal in 1954. Then, the General Assembly suspended the mandates, ostensibly pending the sensitive task of defining the crime of aggression.
The International Law Commission’s draft statute of 1994 focused on procedural and organizational matters, leaving the question of defining the crimes and the associated legal principles to the code of crimes, which it had yet to complete. Two years later, at its 1996 session, the Commission adopted the final draft of its ‘Code of Crimes Against the Peace and Security of Mankind’. The draft statute of 1994 and the draft code of 1996 played a seminal role in the preparation of the Statute of the International Criminal Court. The International Criminal Tribunal for the Former Yugoslavia has remarked that ‘the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain content or are in the process of formation, or, at the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world’.
The ad hoc tribunals
While the draft statute of an international criminal court was being considered in the International Law Commission, events compelled the creation of a court on an ad hoc basis in order to address the atrocities being committed in the former Yugoslavia. Already, in mid-1991, there had been talk in Europe of establishing a tribunal to try Saddam Hussein and other Iraqi leaders following the Gulf War. In late 1992, as war raged in Bosnia, a Commission of Experts established by the Security Council identified a range of war crimes and crimes against humanity that had been committed and that were continuing. It urged the establishment of an international criminal tribunal, an idea that had originally been recommended by Lord Owen and Cyrus Vance, who themselves were acting on a proposal from French constitutional judge Robert Badinter. The proposal was endorsed by the General Assembly in aDecember 1992 resolution. The rapporteurs appointed under the Moscow Human DimensionMechanism of the Conference on Security and Cooperation in Europe, Hans Correll, Gro Hillestad Thune and Helmut Turk, took the initiative to prepare a draft statute. Several governments also submitted draft proposals or otherwise commented upon the creation of a tribunal.
On 22 February 1993, the Security Council decided upon the establishment of a tribunal mandated to prosecute ‘persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’.The draft proposed by the Secretary-General was adopted without modification by the Security Council in its Resolution 827 of 8May 1993. According to the Secretary-General’s report, the tribunal was to apply rules of international humanitarian law that are ‘beyond any doubt part of the customary law’. The Statute clearly borrowed from the work then underway within the International Law Commission on the statute and the code of crimes, in effect combining the two into an instrument that both defined the crimes and established the procedure before the court. The Tribunal’s territorial jurisdiction was confined within the frontiers of the former Yugoslavia. Temporally, it was entitled to prosecute offences beginning in 1991, leaving its end-point to be established by the Security Council.
In November 1994, acting on a request from Rwanda, the Security Council voted to create a second ad hoc tribunal, charged with the prosecution of genocide and other serious violations of international humanitarian law committed in Rwandaandin neighboring countries during the year 1994.
Its Statute closely resembles that of the International Criminal Tribunal for the Former Yugoslavia, although the war crimes provisions reflect the fact that the Rwandan genocide took place within the context of a purely internal armed conflict. The resolution creating the Tribunal expressed the Council’s ‘grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda’, and referred to the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights, as well as the preliminary report of the Commission of Experts, which the
Council had established earlier in the year.
The Yugoslav and Rwandan Tribunals are in effect joined at the hip, sharing not only virtually identical statutes but also some of their institutions. The Prosecutor is the same for both tribunals, as is the composition of the Appeals Chamber. The consequence, at least in theory, is economy of scale as well as uniformity of both prosecutorial policy and appellate jurisprudence. The first major judgment by the Appeals Chamber of the Yugoslav Tribunal, the Tadic jurisdictional decision of 2 October 1995, clarified important legal issues relating to the creation of the body. It also pointed the Tribunal towards an innovative and progressive view of war crimes law, going well beyond the Nuremberg precedents by declaring that crimes against humanity could be committed in peacetime and by establishing the punishability of war crimes during internal armed conflicts. Subsequent rulings of the ad hoc tribunals on a variety of matters fed the debates on creation of an international criminal court. The findings in Tadic with respect to the scope of war crimes were essentially incorporated into the Statute of the International Criminal Court. Its obiter dictum that crimes against humanity could be committed in time of peace and not just in wartime, as had been the case at Nuremberg, was also endorsed. Other judgments, such as a controversial holding that excluded recourse to a defence of duress, prompted drafters of the Statute to enact a provision ensuring precisely the opposite. The issue of ‘national security’ information ignored by the International Law Commission, was thrust to the forefront of the debates after the Tribunal ordered Croatia to produce government documents, and resulted in one of the lengthiest and most enigmatic provisions in the final Statute.The Rome Conference also departed from some of the approaches taken by the Security Council itself, choosing, for example, to recognise a limited defence of superior orders whereas the Council’s drafters had preferred simply to exclude this with an unambiguous provision.
But the Tribunals did more than simply set legal precedent to guide the drafters. They also provided a reassuring model of what an international criminal court might look like. This was particularly important in debates concerning the role of the Prosecutor. The integrity, neutrality and good judgment of Richard Goldstone and his successor, Louise Arbour, answered those who warned of the dangers of a reckless and irresponsible ‘Dr Strangelove prosecutor’.
Drafting of the ICC Statute
In 1994, the United Nations General Assembly decided to pursue work towards the establishment of an international criminal court, taking the International Law Commission’s draft statute as a basis.46 It convened an Ad Hoc Committee, which met twice in 1995. Debates within the Ad Hoc Committee revealed rather profound differences among States about the complexion of the future court, and some delegations continued to contest the overall feasibility of the project, although their voices became more and more subdued as the negotiations progressed. The International Law Commission draft envisaged a court with ‘primacy’, much like the ad hoc tribunals for the Former Yugoslavia and Rwanda. If the court’s prosecutor chose to proceed with a case, domestic courts could not pre-empt this by offering to do the job themselves. In meetings of the Ad Hoc Committee, a new concept reared its head, that of ‘complementarity’, by which the court could only exercise jurisdiction if domestic courts were unwilling or unable to prosecute. Another departure of the Ad Hoc Committee from the International Law Commission draft was its insistence that the crimes within the court’s jurisdiction be defined in some detail and not simply enumerated.
The International Law Commission had contented itself with listing the crimes subject to the court’s jurisdiction – war crimes, aggression, crimes against humanity and genocide – presumably because the draft code of crimes, on which it was also working, would provide the more comprehensive definitional aspects. Beginning with the Ad Hoc Committee, the nearly fifty-year-old distinction between the ‘statute’ and the ‘code’ disappeared. Henceforth, the statute would include detailed definitions of crimes as well as elaborate provisions dealing with general principles of law and other substantive matters. The Ad Hoc Committee concluded that the new court was to conform to principles and rules that would ensure the highest standards of justice, and that these should be incorporated in the statute itself rather than being left to the uncertainty of judicial discretion.
The Rome Conference began with a few days of formal speeches from political figures, United Nations officials and personalities from the growing ranks of those actually involved in international criminal prosecution, including the presidents of the two ad hoc tribunals and their Prosecutor.
Then the Conference divided into a series of working groups with responsibility for matters such as general principles, procedure and penalties. Much of this involved details, unlikely to create insurmountable difficulties to the extent that the delegates were committed to the success of the endeavour. But a handful of core issues – jurisdiction, the ‘trigger mechanism’ for prosecutions, and the role of the Security Council – remained under the wing of the Bureau. These difficult questions were not publicly debated for most of the Conference, although much negotiating took place informally.
One by one, the provisions of the statute were adopted ‘by general agreement’ in the working groups, that is, without a vote. The process was tedious, in that it allowed a handful of States or even one of them to hold up progress by refusing to join consensus. The chairs of the working groups would patiently negotiate compromises, drawing on comments by States who often expressed their views on a provision but then indicated their willingness to be flexible. Within a week of the beginning of the Conference, the working groups were forwarding progress reports to the Committee of the Whole, indicating the provisions that had already met with agreement. These were subsequently examined by the Drafting Committee, chaired by Professor M. Cherif Bassiouni, for terminological and linguistic coherence in the various official language versions of the statute.
But, as the weeks rolled by, the key issues remained to be settled, of which the most important were the role of the Security Council, the list of ‘core crimes’ over which the court would have inherent jurisdiction, and the scope of its juri