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					                                                         CHAPTER 8

            HOW CAN HUMAN RIGHTS VIOLATORS BE HELD
                       ACCOUNTABLE?
A. INTRODUCTION ........................................................................................................... 2
B. QUESTIONS ................................................................................................................... 3
C. RESPONDING TO PAST HUMAN RIGHTS VIOLATIONS ..................................                                                       9
   Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights
      Violations of a Prior Regime .....................................................................................               9
   José Zalaquett, Balancing Ethical Imperatives and Political Constraints:
      The Dilemma of New Democracies Confronting Past Human Rights
      Violations ...................................................................................................................   14
   Truth and Reconciliation Commissions .......................................................................                        15
   David Weissbrodt & Paul W. Fraser, Political Transitions and
      Commissions of Inquiry ............................................................................................              16
   John Dugard, Reconciliation and Justice: The South African Experience ....................                                          21
D. NUREMBERG PRINCIPLES ......................................................................................                         31
   1. The Absence of a Tribunal for Armenia .................................................................                          31
   Vahakn N. Dadrian, Genocide as a Problem of National and International
      Law: The World War I Armenian Case and Its Contemporary Legal
      Ramifications .............................................................................................................      31
   2. The Nuremberg and Tokyo Tribunals ....................................................................                           33
   3. Control Council Law No. 10 and “Minor” Tribunals ...........................................                                     35
E. AD HOC INTERNATIONAL TRIBUNALS FOR THE FORMER YUGOSLAVIA
   AND RWANDA .............................................................................................................            37
   1. The International Criminal Tribunal for the Former
      Yugoslavia (ICTY) ..................................................................................................             38
      Diane F. Orentlicher, Legal Basis of the Tribunal for Former
          Yugoslavia ..........................................................................................................        41
      Results from the ICTY ...........................................................................................                41
   2. The International Criminal Tribunal for Rwanda (ICTR) .................................                                          43
   3. Efficacy of the ad hoc Tribunals ............................................................................                    47
      Human Rights Watch, Justice at Risk: War Crimes Trials in Croatia,
          Bosnia and Herzegovina, and Serbia and Montenegro ......................................                                     47
      Organization of African Unity, Rwanda: The Preventable Genocide .....................                                            48
      Aryeh Neier, Rethinking Truth, Justice, and Guilt after Bosnia
          and Rwanda .......................................................................................................           51




                                                                      1
     4. Development of New Tribunals .............................................................................                       61
        The Special Court for Sierra Leone .....................................................................                         61
        Michael P. Scharf, Self-Representation Versus Assignment of Defence
           Counsel Before International Criminal Tribunals .............................................                                 64
        The Cambodian Tribunal on the Khmer Rouge .................................................                                      65
        Timor-Leste ...........................................................................................................          67
        Iraq .........................................................................................................................   69
F. A PERMANENT INTERNATIONAL CRIMINAL COURT .................................                                                            71
   Jerry Fowler, The Rome Treaty for an International Criminal Court:
       A Framework of International Justice for Future Generations ...............................                                       72
   John R. Bolton, The Risks and Weaknesses of the International Criminal
       Court from America‘s Perspective ……………………………………………….                                                                              76
   Bartram S. Brown, U.S. Objections to the Statute of the International
       Criminal Court: A Brief Response .........................................................................                        82
   President William J. Clinton, Statement on Signature of the International
       Criminal Court Treaty .............................................................................................               86
   The First Investigations and Indictments Issued by the ICC ..................................                                         89
G. PROSECUTING HUMAN RIGHTS VIOLATORS IN FOREIGN
   NATIONAL COURTS ................................................................................................                      94
   European Attempts to Prosecute Pinochet ................................................................                              95
   Human Rights Watch, The Pinochet Precedent: How Victims Can Pursue
      Human Rights Criminals Abroad ............................................................................                         96
   Menno Kamminga, The Exercise of Universal Jurisdiction in Respect
      of Gross Human Rights Offences ...........................................................................                         102
   Democratic Republic of the Congo v. Belgium: Universal Jurisdiction
      over Human Rights Abuses ..................................................................................                        102



A.        INTRODUCTION

        This chapter examines national and international measures that can be taken to respond to
human rights violations. The chapter first presents some of the issues that confront governments
seeking to address violations committed by past governments, often after a democratic transition.
Options include establishing a truth and reconciliation commission to investigate human rights
violations, prosecuting individuals accused of human rights violations, administering a system to
help redress victims and inter alia addressing broader concerns related to the rule of law and its
reform. The chapter then proceeds to focus on benefits and disadvantages of establishing an
international criminal court to prosecute human rights violators. This section of the chapter will
describe ad hoc efforts to prosecute crimes committed during World War II and in more recent
conflicts in Cambodia, Timor-Leste, Iraq, Rwanda, Sierra Leone, and the former Yugoslavia, before
considering the role and potential impact of the International Criminal Court. Finally, the chapter
will discuss the growing practice of national courts exercising universal jurisdiction over serious
human rights abuses committed in other countries.
                                                 2
       In light of the length and scope of the materials presented, instructors may wish to divide the
chapter into two or three sections.

B.     QUESTIONS

        In April 1975, the military government of Cambodia fell to the forces of the Communist
Party of Kampuchea, or Khmer Rouge, led by Pol Pot. Once in power, the Khmer Rouge set out to
transform Cambodia into a collective agrarian society. All pre-existing social, economic, and
cultural institutions were abolished, and the Khmer Rouge forcibly relocated between two and three
million inhabitants of the country‘s cities and towns to newly-established agricultural collectives.
Hundreds of thousands died of exhaustion, disease, and starvation, or were killed by their overseers.
In addition, the Khmer Rouge targeted several groups as potential enemies of the revolution and
undertook to eliminate their members. During the first few months of Khmer Rouge rule, thousands
of former government officials, army officers, and bureaucrats were summarily executed. A similar
fate befell thousands of intellectuals, Buddhist monks, and ethnic minorities including Vietnamese,
Chinese, and Cham (a Muslim people present in Cambodia for over 500 years). In all, during four
years of Khmer Rouge rule approximately 1.5 million Cambodians were killed or died as a result of
the conditions created by the Khmer Rouge. This number equaled approximately 20 percent of the
total population of Cambodia. See Report of the Group of Experts for Cambodia Pursuant to
General Assembly Resolution 52/125, 18 February 1999, U.N. Doc. A/53/850, at 8-14.

         In 1979, opposition forces backed by the government of Vietnam drove the Khmer Rouge
from power and a lengthy civil war ensued. During the next ten years the Khmer Rouge received
support from the governments of China, the U.S., and Thailand; it retained control of the Cambodian
seat at the United Nations. The war ended in 1991 with the signing in Paris of a peace agreement
negotiated by several governments and the U.N. Under the agreement, general elections were held in
1993 under the supervision of the U.N. Transitional Administration in Cambodia (UNTAC). The
Khmer Rouge boycotted the elections, which resulted in the formation of a coalition government
headed by Prince Norodom Ranariddh and Hun Sen, a former mid-level Khmer Rouge official who
had defected from the party.

       The Khmer Rouge failed to observe the cease-fire and demobilization provisions of the Paris
agreement and continued to launch sporadic attacks on government forces from its stronghold in
northeastern Cambodia. In July 1994, the Cambodian legislature voted unanimously to ban the
Khmer Rouge. Shortly afterwards, internal division among Khmer Rouge leaders resulted in a split
in Khmer Rouge forces, with some leaders defecting to the government side in exchange for amnesty
and others surrendering outright.

         In June 1997, co-prime ministers Prince Norodom and Hun Sen wrote to U.N. Secretary-
General Kofi Annan requesting ―the assistance of the U.N. and the international community in
bringing to justice those persons responsible for the genocide and crimes against humanity during the
rule of the Khmer Rouge from 1975 to 1979.‖ See Letter from the Co-Prime ministers of Cambodia


                                                  3
Addressed to the United Nations Secretary-General, June 21, 1997.1 In their letter, the prime
ministers emphasized that Cambodia lacked the resources and expertise to conduct the necessary
procedures. The letter also alluded to U.N. efforts to respond to gross violations of human rights in
the former Yugoslavia and Rwanda, and asked that similar assistance be given to Cambodia. The
leaders concluded their appeal as follows:
        We believe that crimes of this magnitude are of concern to all persons in the world, as they
        greatly diminish respect for the most basic human right, the right to life. We hope that the
        United Nations and international community can assist the Cambodian people in establishing
        the truth about this period and bringing those responsible to justice. Only in this way can this
        tragedy be brought to a full and final conclusion. Id.

        In December 1997, the U.N. General Assembly adopted resolution 52/135 requesting the
Secretary-General to examine the request for assistance, including the possibility of appointing a
group of experts to propose means of bringing the Khmer Rouge to justice. G.A. res. 135, U.N.
GAOR, 52d Sess., Supp. No. 49, at 288-89, U.N. Doc. A/52/49 (1997). In accordance with the
resolution, in July 1998 the Secretary-General created a Group of Experts for Cambodia consisting of
three prominent international jurists: Sir Ninian Stephen (Australia), Judge Rajsoomer Lallah
(Mauritius), and Professor Steven R. Ratner (United States). The Secretary-General assigned the
Group of Experts a mandate:

        (a) To evaluate the existing evidence with a view to determining the nature of the crimes
        committed by Khmer Rouge leaders in the years from 1975 to 1979;
        (b) To assess, after consultation with the Governments concerned, the feasibility of bringing
        Khmer Rouge leaders to justice and their apprehension, detention and extradition or
        surrender to the criminal jurisdiction established;
        (c) To explore options for bringing to justice Khmer Rouge leaders before an international or
        national jurisdiction.

See Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135,
U.N. Doc A/53/850, at 6-7 (1999).

        As the Group of Experts conducted its work, Cambodian human rights and victims
organizations announced strong support for the establishment of an international tribunal for the
Khmer Rouge. In December 1998, the NGO Forum on Cambodia, an umbrella organization
consisting of 60 Cambodian and international NGOs, stated that

        [t]he deep physical and psychological wounds left by the Khmer Rouge experience continue
        to have a profound impact on Cambodia, its people and its development. A UN-sponsored
        tribunal could focus international attention on the horrendous crimes of the Khmer Rouge
        period as well as provide some useful tools for reflection and reconciliation among
        Cambodian people. Perhaps as importantly, such a tribunal could help the international


1 Available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/5c93fc5fd3dbd2608025675a00586184?Opendo
cument.
                                                   4
       community reflect on its own responsibilities in reacting to situations where genocide or
       other crimes against humanity occur or are likely to occur.

       A free and fair adjudication of the crimes committed by the Khmer Rouge is essential to
       resolving the heritage of suffering which is so pervasive in Cambodia today. . . .Adjudication
       by an international tribunal would help to accelerate the resurrection of Cambodian society
       by serving to re-establish a sense of justice and personal accountability. At the same time,
       such a tribunal could finally constitute international recognition of the trauma the Cambodian
       people endured.

See Statement in Support of an International Tribunal, NGO Forum on Cambodia, December 4,
1998.

        The Group of Experts reported its findings and recommendations to the Secretary-General in
February 1999. The report analyzed a range of factors, including the historical background to the
period of Khmer Rouge rule, the quality and quantity of available criminal evidence, the nature of the
acts committed, the continuing role played by the Khmer Rouge in Cambodian society, and the
feasibility of gaining custody of suspected perpetrators. The Experts concluded that the
establishment of an ad hoc international tribunal would provide the best means of bringing Khmer
Rouge leaders to justice. The Group recommended against U.N. involvement in a Cambodian
tribunal due to deficiencies in the Cambodian legal system and concerns that a Cambodian tribunal
would be unable to maintain sufficient independence. See Report of the Group of Experts for
Cambodia Pursuant to General Assembly Resolution 52/125, U.N. Doc. A/53/850, at 36 (1999).

         Following publication of the Group of Experts‘ report, U.N. and Cambodian officials failed
to agree on the precise composition and mandate of a tribunal. Hun Sen, who had ousted Prince
Norodom in a coup in 1997, refused to accept any international tribunal over which the Cambodian
government did not exercise overall control. As diplomatic efforts to end the impasse continued,
Cambodian authorities arrested several key Khmer Rouge leaders, including Kang Kek Ieu, chief
interrogator of the Khmer Rouge and the former head of the Tuol Sleng prison, and Ta Mok, the last
fugitive Khmer Rouge leader. (Pol Pot had died in April 1998 in unclarified circumstances.) In
August 1999, the Cambodian National Assembly extended the allowable period of detention without
trial from six months to three years for persons charged with war crimes, genocide, and crimes
against humanity. One month later Ta Mok and Kang Kek Ieu were charged with genocide by a
Cambodian military court. See Ex-Khmer Rouge torturer charged with genocide, AFP, Sept. 9,
1999.

        In February 2000, the Secretary-General laid out four preconditions for U.N. involvement in a
tribunal for the Khmer Rouge:

       (1) Guarantees for the arrest and surrender of indictees;
       (2) A ban on amnesties or pardons for persons accused of genocide or crimes against
       humanity;
       (3) An independent, international prosecutor and investigating judge; and

                                                  5
        (4) A majority of international judges appointed by the Office of the Secretary-General.

See Annan Stands Firm On UN-Dominated Trial Of Khmer Rouge, AP, Feb. 9, 2000.

       In July 2000, the U.N. and the Cambodian government reached a tentative agreement on a
national tribunal with international involvement. The government then submitted the agreement to
the Cambodian parliament for approval, a process of uncertain duration and outcome. U.N. officials
made clear that any changes to the agreement would end U.N. involvement in the trial process. See
Men Kimseng, UN and Cambodia finalise draft accord on Khmer Rouge trial, AFP, July 7, 2000,
available in LEXIS, AFP File.

        In light of the materials in this chapter, please consider the following questions:

1.     The Group of Experts recommended limiting prosecutions before an international tribunal to
the highest-ranking members of the Khmer Rouge officials, whom they estimated might number
between 20 and 30. This recommendation was made in light of expected financial and logistical
constraints as well as the possibility that reopening the events of the past on a massive scale might
impede national reconciliation.

        a.      If this recommendation is followed, would it be appropriate for Cambodian or U.N.
                officials to employ alternative means for holding lower-ranking perpetrators
                accountable for their crimes, for example by establishing a truth commission or some
                other truth recovery process to examine the period of Khmer Rouge rule or creating a
                mechanism for administratively sanctioning persons involved in human rights
                abuses?

        b.      If so, what are the advantages and disadvantages of the various alternative
                approaches? How would you recommend that U.N. and/or Cambodian officials
                proceed?

2.     If trials before an international tribunal were limited to the highest-ranking officials, very few
victims would have the opportunity to participate in the proceedings or have their stories told.

        a.      What benefits for victims might be derived from also establishing a national truth and
                reconciliation commission or similar process? What negative consequences can you
                foresee?

        (query following comment above about the link between truth processes and the re-
               establishment of the rule of law more generally would it be appropriate to add a
               question e.g. What other measures (legal, political or social) might be needed to
               accompany a truth recovery process and to allow that process to positively advance
               the establishment of the rule of law in Cambodia for the future,



                                                   6
           b.      How important is government acceptance of a truth and reconciliation commission‘s
                   authority and conclusions?

           c.      Whose actions should a truth and reconciliation commission investigate? High,
                   middle, and/or low-level government officials?

           d.      Should a truth recovery process investigate individual acts or draw out patterns of
                   abuses committed by both state and non-state actors? Should a truth recovery
                   process examine violations of social, cultural and economic rights?

           e.      Is it appropriate to name names in truth can reconciliation commission‘s reports?
                   What might be accomplished by release of a truth and reconciliation commission
                   report without criminal prosecution?

           f.      Would it be appropriate for a truth commission to offer amnesty to persons accused
                   of lesser crimes who provide full disclosure of their actions?

3.      In summer 1997, a U.S. State Department official suggested it might be possible to try Pol
Pot for genocide in a national court outside of Cambodia. Canada was named as one possible
location.2

           a.      Could a Canadian court exercise jurisdiction over Khmer Rouge officials for acts
                   committed outside Canada? If so, on what basis?

           b.      Would a Canadian court have the authority to hear charges of torture committed by a
                   non-Canadian, outside of Canada? What about grave breaches of the Geneva
                   Conventions? Crimes against humanity?

           c.      Would a trial abroad be an appropriate response in the Cambodian context? What
                   difficulties can you foresee in prosecuting the Khmer Rouge in a foreign court?

           d.      How would the Khmer Rouge officials be brought to Canada? Through extradition?

           e.      For many years the headquarters of the Khmer Rouge was located in the jungles
                   along the Thai-Cambodian border. The Khmer Rouge often crossed into Thai
                   territory to evade Cambodian government troops. Were Thai authorities under any
                   obligation to seek out and apprehend Khmer Rouge leaders? If so, what was the
                   source of this obligation?

4.      The Group of Experts proposed that an international tribunal for Cambodia be modeled on
the existing tribunals for Rwanda and the former Yugoslavia.



2
    See Steven Lee Myers, Making Sure War Crimes Aren‟t Forgotten, N.Y. TIMES, September 22, 1997, at A1.
                                                        7
       a.       In light of the experiences of the two existing tribunals, are there any changes you
                would recommend for a new tribunal for Cambodia?

       b.       Which crimes would most appropriately be included in the statute of an ad hoc
                international criminal tribunal for Cambodia?

       c.       What penalties would be most appropriate for persons convicted by an international
                tribunal?

5.      The tribunals for Rwanda and the former Yugoslavia differ in terms of their temporal
jurisdiction. The Rwanda tribunal has jurisdiction over crimes committed during a specified 12-
month period, whereas the temporal jurisdiction of the Yugoslavia tribunal is open-ended. Given the
general agreement that serious human rights abuses continued to occur in Cambodia after the Khmer
Rouge fell from power, is it appropriate for the jurisdiction of a Cambodia tribunal to be limited to
1975-1979?

6.      Could the U.N. Security Council or a state refer the crimes of the Khmer Rouge to the
International Criminal Court?

7.      Had the International Criminal Court been established prior to the events of 1975-79, could
the Khmer Rouge be tried before the ICC? If so, what would be the most likely ―trigger‖ of the
Court‘s jurisdiction — referral by the Security Council or a State Party, or initiation of an
investigation by the prosecutor? Which crimes would you expect to find in a hypothetical ICC
indictment of a Khmer Rouge leader?

8.       For a role-playing exercise, members of the class should be designated as representatives of
the institutions listed below and should prepare to discuss various possible responses to the crimes of
the Khmer Rouge.

       a.   The current government of Cambodia
       b.   The U.N. Secretariat
       c.   The government of the United States
       d.   The government of China
       e.   A Cambodian human rights organization

C.     RESPONDING TO PAST HUMAN RIGHTS VIOLATIONS

Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a
Prior Regime, 100 YALE L.J. 2537, 2539-53, 2562-69 (1991) (footnotes omitted):

                                            Introduction

       From Latin America to Asia, from Eastern Europe to Africa, long-entrenched dictatorships
have given way to elected civilian governments. . . . The outcome of recent transitions cannot yet be

                                                  8
known, but it is now clear that nations emerging from dictatorship face formidable challenges as they
seek to establish or restore the rule of law.

        Many of the new governments replaced regimes responsible for brutal crimes -- forced
―disappearances,‖ political killings and torture -- inflicted on a staggering scale and with wholesale
impunity. Whether these crimes should be prosecuted has loomed as one of the most urgent, and
agonizing, issues confronting the nascent democracies. In some instances, security forces
responsible for the worst abuses retain substantial power, and make clear that they will not brook any
legal accounting. In several countries, governments have responded by granting de facto impunity;
in others, the military has insisted upon amnesties which are designed, as one writer has observed,
―to enforce a total amnesia regarding [its] crimes.‖ . . .

                                         I. Why Punish? . . .

A.     The Case for Prosecutions

        The fulcrum of the case for criminal punishment is that it is the most effective insurance
against future repression. By laying bare the truth about violations of the past and condemning them,
prosecutions can deter potential lawbreakers and inoculate the public against future temptation to be
complicit in state-sponsored violence. Trials may, as well, inspire societies that are reexamining
their basic values to affirm the fundamental principles of respect for the rule of law and for the
inherent dignity of individuals.

         Above all, however, the case for prosecutions turns on the consequences of failing to punish
atrocious crimes committed by a prior regime on a sweeping scale. If law is unavailable to punish
widespread brutality of the recent past, what lesson can be offered for the future? A complete failure
of enforcement vitiates the authority of law itself, sapping its power to deter proscribed conduct.
This may be tolerable when the law or the crime is of marginal consequence, but there can be no
scope for eviscerating wholesale laws that forbid violence and that have been violated on a massive
scale. . . .

B.     The Case Against Prosecutions

        The chief argument against a general rule requiring prosecution is that fragile democracies
may not be able to survive the destabilizing effects of politically charged trials. Many countries
emerging from dictatorship are polarized and unstable, and may be further fractured by prosecutions
of the prior regime‘s depredations. Under these circumstances, some urge, democratic consolidation
can be furthered by implementing a policy of reconciliation embodied in an amnesty law covering
past violations.

        In countries where the military retains substantial power after relinquishing office, efforts to
prosecute past violations may provoke rebellions or other confrontations that could weaken the
authority of the civilian government. And in countries where security forces have retained modest
power relative to an elected government, prosecutions may induce the military to ―close ranks.‖ In

                                                   9
these circumstances, prosecutions could reinforce the military‘s propensity to challenge democratic
institutions.

        In light of these constraints, some analysts believe that democratic consolidation may be best
served if a precarious government stays the hand of prosecution. Their argument rests, in large
measure, on the claim that transitional societies may not yet possess the attributes of a viable
democracy - in particular, the new governments may lack the power to bring the military to account -
and holds that the international community should not press these governments to act as though they
were fully consolidated when in fact the transition process has only begun. Stripped of its essence,
their argument is one of lesser evils. Opponents of law requiring prosecutions concede that impunity
erodes the rule of law. But, they argue, if a fragile democratic government institutes prosecutions, it
may provoke its overthrow by sectors that are ill-disposed to respect human rights.

C.      The Role of International Law

        As thus framed, the policy debate has tended to view the imperatives of the rule of law as
somehow fundamentally at odds with political reality. This approach is unwarranted. The law itself
can accommodate the constraints surrounding transitional societies while securing crucially
important values. Addressing the dilemma of tenuous democracies through law assures that an
appropriate balance is struck between the demands of justice and potentially conflicting values, such
as political stability. . . .

         I am not, of course, suggesting that governments should press prosecutions to the point of
provoking their own collapse. Rather, I am suggesting that, by generally requiring prosecutions,
international law helps assure that governments do not forego trials simply because it seems
politically expedient to do so. A critical distinction to be drawn here is between military
insubordination and a challenge that poses a genuine and serious threat to national life. Because
trials secure preeminent rights and values, governments should be expected to assume reasonable
risks associated with prosecutions, including a risk of military discontent.

        . . . International law requiring punishment of atrocious crimes - and, more to the point,
international pressure for compliance - can provide a counterweight to pressure from groups seeking
impunity. . . .

        Further, when prosecutions are undertaken pursuant to international law, they are less likely
to be perceived - and opposed - as political revanchism. It is easy to believe that prosecutions are
politically motivated when the decision to institute them is a matter of unbridled discretion; justice is
readily mistaken for vengeance. . . .

       . . . The argument that amnesty laws may be necessary to mend social divisions falsely
assumes that such laws are the only means of achieving reconciliation. There are other means.
Further, amnesty laws can be used to promote national reconciliation, provided they do not cover
atrocious crimes which international law requires states to punish. . . .


                                                   10
II. The Duty to Punish Under [International Law Prior to the Establishment of the International
Criminal Court]

         . . . International human rights law traditionally has allowed governments substantial
discretion to determine the means they will use to ensure protected rights, while international penal
law has often focused on the power - not duty - of governments to punish violations committed
outside their territorial jurisdiction. When the law has required states to punish offenses committed
in their territory, the duty traditionally has applied principally to crimes committed against foreign
nationals.

        Increasingly, however, international law has required states to punish certain human rights
crimes committed in their territorial jurisdiction. Several human rights treaties require States Parties
to criminalize particular abuses, such as genocide and torture, investigate violations and seek to
punish the wrongdoers. On their face, the more comprehensive treaties, such as the International
Covenant on Civil and Political Rights, are silent about a duty to punish violations of the rights they
ensure. But authoritative interpretations of these treaties make clear that a State Party fails in its duty
to ensure the cluster of rights protecting physical integrity if it does not investigate violations and
seek to punish those who are responsible. Moreover a state‘s failure to punish repeated or notorious
violations breaches the customary obligation to respect the same set of preeminent rights.

A.      International Criminal Law

1.      General Principles

        . . . While definitions of ―international crimes‖ vary, the term in its broadest sense comprises
offenses which conventional or customary law either authorizes or requires states to criminalize,
prosecute, and/or punish. Although international law generally establishes rights and duties between
and among states, international criminal law imposes obligations on individuals, making them liable
to criminal punishment. It also imposes duties on states with respect to matters usually left to their
discretion. Thus, an amnesty law or an exercise of prosecutorial discretion that is valid under
domestic law may nonetheless breach a state‘s international obligations. . . .

B.      Human Rights Conventions Specifying a Duty to Prosecute

        The most explicit obligations to punish human rights crimes that are likely to be relevant to
societies emerging from dictatorship are established by the Convention on the Prevention and
Punishment of the Crime of Genocide (―Genocide Convention‖) and the Convention Against
Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (―Convention Against
Torture‖). Although both require States Parties to prosecute the conduct they proscribe, the two
conventions embody profoundly different visions of international human rights law. Drafted in the
wake of World War II, the Genocide Convention reflects a paradigm, inspired by the Nuremberg
prosecutions, of a world order in which internationally recognized rights are enforced by an
international tribunal. . . . By the time the drafters‘ work was completed, support for an international
penal tribunal had so dissipated that the convention‘s provision of jurisdiction by such a court was

                                                    11
little more than an acknowledgment of a faded vision, and chief responsibility for prosecuting
genocide fell to the state most responsible for the crimes. . . .

        The Convention Against Torture, which the General Assembly adopted thirty-six years after
it adopted the Genocide Convention, reflects a pragmatic acceptance of the limited role of
international enforcement in securing protected rights. No mention is made of an international
tribunal. And while the Convention establishes a form of universal jurisdiction over torturers, chief
responsibility for punishing violators lies with the state in which the crime occurred. . . .

C.      Comprehensive Human Rights Conventions

        In contrast to the conventions on torture and genocide, three comprehensive human rights
treaties - the International Covenant on Civil and Political Rights (―International Covenant‖), the
European Convention for the Protection of Human Rights and Fundamental Freedoms (―European
Convention‖), and the American Convention on Human Rights (―American Convention‖) - do not
explicitly require States Parties to prosecute or punish violations of rights set forth in the
conventions. Authoritative interpretations make clear, however, that these treaties require States
Parties generally to investigate serious violations of physical integrity - in particular, torture, extra-
legal executions, and forced disappearances - and to bring to justice those who are responsible. . . .

        The duties derive from States Parties‘ affirmative obligation to ensure rights set forth in these
conventions. Adherents to all three treaties pledge not only to respect enumerated rights, but also to
ensure that persons subject to their jurisdiction enjoy the full exercise of those rights. The
International Covenant and American Convention further require States Parties to adopt legislation
or other measures necessary to give effect to the rights and freedoms recognized in the treaties, and
all three conventions require Parties to ensure that individuals whose rights are violated have an
effective remedy before a competent body, even if the violation was committed by someone acting in
an official capacity. . . .

                                                *****

        The International Criminal Court (ICC) was established by the Rome Statute on July 17,
1998. On July 1, 2002, the statute was ratified by the requisite sixtieth country and entered into
force.3 The ICC sets forth obligations to punish human rights crimes, yet under Orentlicher‘s
analysis, was the establishment of the ICC necessary for the punishment of these crimes? How has
the establishment of the International Criminal Court (ICC) changed the obligation to punish human
rights crimes?

        Orentlicher writes that explicit obligations to punish human rights crimes are found in the
genocide and torture conventions. An additional obligation to punish human rights abuses is found
in the 1949 Geneva Conventions, which require States to prosecute, or extradite for prosecution,
individuals accused of ―grave breaches‖ of the conventions, committed in the context of an
international armed conflict. Grave breaches include willful killing of civilians and prisoners as well

3 See http://www.icc-cpi.int/about.html
                                                   12
as willfully causing suffering or serious injury to body or health. For further discussion of the duty to
prosecute under the Geneva Conventions, see infra at 95.

       It should also be noted that the Security Council may impose a duty on states to bring
perpetrators of international crimes to justice as an enforcement measure under Chapter VII of the
U.N. Charter. For example, the Council

        adopted Resolution 748, requiring Libya to surrender to the United States or the United
        Kingdom for prosecution the two Libyan officials charged with bombing Pan American
        Flight 103. A year later, the Council adopted Resolution 837, calling for the arrest of Somali
        Warlord Mohamed Farrah Aidid, who was responsible for the murder of 24 U.N.
        peacekeepers. In addition, the Security Council resolutions establishing the Yugoslavia and
        Rwanda War Crimes Tribunals impose an obligation on all states that are members of the
        United Nations to cooperate fully with the Tribunal, including its orders of arrest.

Michael Scharf, The Letter of the Law: The Scope of the International Legal Obligation to Prosecute
Human Rights Crimes, 59 LAW & CONTEMP. PROBS. 41, 59 (Fall 1996).

José Zalaquett, Balancing Ethical Imperatives and Political Constraints: The Dilemma of New
Democracies Confronting Past Human Rights Violations, 43 HASTINGS L.J. 1425, 1429-32
(1992):

        [It is often argued that] it is preferable to suffer longer under tyranny, in the hope of a fully
satisfactory political outcome, than to make progress through untidy compromises. Implicit in this
position is the arrogant expectation that the future will comply with one‘s wishes and a disdain for
the dreadful costs of such a cavalier gamble. However, it must also be firmly stated that a politician
cannot invoke the need for prudence in an attempt to justify mere temporization and neglect. The
ghosts of the past, if not exorcised to the fullest extent possible, will continue to haunt the nation
tomorrow. . .

        Let us examine, then, the two considerations that must be balanced - the ethical principles
that ought to be pursued, and actual political opportunities and constraints that ought to be taken into
account. By balancing these factors, ethical principles can be realized to the fullest possible extent.

       No single international convention or set of norms exists where such principles can be found.
 These principles must be fashioned from existing international norms, from ethical postulates, and
from judgment, taking into account all relevant experiences.

        I submit that these principles should be the following:

        a)     A policy to deal with past human rights abuses should have two overall objectives:
Preventing the recurrence of such abuses and, to the extent possible, repairing the damage they have
caused.


                                                   13
       b)      For a policy to be legitimate it must, first, be adopted with full cognizance of past
human rights violations. Second, it must be adopted through a body of democratically elected
representatives or by other means clearly reflecting the sovereign will of the nation.

        c)      Within the terms just stated, nations have ample discretion concerning the content of
the policy. They may lean towards severity or clemency. But international law limits such sovereign
discretion. The treatment of alleged perpetrators, including their prosecution and punishment, must
not violate the perpetrator‘s rights. Measures of governmental magnanimity are also limited by
international law inasmuch as it imposes the duty to prosecute those who have committed certain
crimes.

        [Examination of several emerging democracies reveals] several typical situations involving a
balance of political opportunities and constraints that will allow us to put these principles into
practice. At one extreme, if the perpetrators have been completely defeated, the new government has
the greatest latitude of action. But past experience suggests that unfettered power to mete out
punishment is itself a factor that may place justice at risk. At the other extreme, if the perpetrators
are a cohesive and determined force enjoying a monopoly on military strength, the obstacles to
justice are most severe. Yet political situations are far from static, and if the new government
consistently follows the best possible approach, despite being limited by the circumstances it faces,
new possibilities may open up along the way.

      Many other factors combine in real life to make each situation unique. The following are
some examples:

        (a)     Those who committed the human rights abuses may have persuaded themselves and
others that such acts, although not desirable, were required to avoid subversion or an impending civil
war. While such justification is, of course, unacceptable, it may strengthen the perpetrators‘ resolve
to oppose trials and punishment.

       (b)    Peace may have been achieved after protracted civil war or a similar armed conflict,
with neither side having been defeated and neither wishing to have its people subjected to
prosecutions.

         (c)     Some opponents of the deposed dictatorial regime may also have engaged in violence,
sometimes against innocent targets, or otherwise transgressed basic rules of humane behavior. Their
liability for past acts of resistance may be used by partisans of the previous regime to press for a
general amnesty or for impunity for agents of the dictatorship.

       (d)     Ethnic, religious, or nationalistic divisions may conspire against the possibility of
adopting a policy that would be generally accepted as fair and impartial.

        It is amidst such complex and changing circumstances that political leaders must obey the
call to act responsibly. Since there is no blueprint to direct their actions, they must rely on good


                                                  14
judgment. Responsibility also requires taking into account the accomplishments and failures of other
countries that have faced similar challenges.

                                                      *****
Truth and Reconciliation Commissions

        During a transition from a period of widespread violence and repression to a society in which
democracy and the rule of law prevail, a number of countries have confronted the difficult legacy of
human rights abuses through efforts to promote reconciliation and justice. In countries as diverse as
Bosnia and Herzegovina, Peru, Sierra Leone, and Timor-Leste, government officials,
nongovernmental advocates, and the United Nations have responded to past human rights violations
by establishing truth-seeking initiatives, at times helping to prosecute individual perpetrators, as well
as providing reparations to victims.

        At least thirty-six Truth and Reconciliation Commissions – also known as truth commissions
– had been established in order to facilitate the process of reconciliation in societies that have been
divided during periods of violence and grave human rights abuses.4 The principal objectives of such
commissions are to give individuals who have suffered serious human rights violations an
opportunity to communicate their experiences to persons in authority and to receive collective
acknowledgment of responsibility for their suffering. Such processes also have multiple goals
including the promotion of reconciliation in conflicted societies, the creation of agreed historical
narratives and the calculation of compensation for eligible victims. These temporary commissions
focus on a past, pre-defined period of time during which the abuses occurred, and typically cease to
exist with the publication of a report on their findings. More recently, truth processes have come to
be associated with broader attempts to re-establish or strengthen the rule of law in post- conflict or
post political transitions.

        In pursuit of reconciliation, truth commissions usually strive to investigate past human rights
abuses; to provide an official forum where victims and perpetrators alike can tell their stories and
offer evidence; and to prepare an authoritative report that documents the events, makes conclusions,
and suggests ways in which similar atrocities can be avoided in the future. The final reports of the
truth commission are almost always made public, and contain the commission‘s observations,
conclusions, and recommendations. The final report does not establish the ―truth‖ – since the truth
was usually openly known during the period examined – so much as it formally documents the
―truth‖ in such a way that it must be acknowledged by the state. Notably a number of truth processes
have identified parallel, and conflicting ‗truths‘ about the context in which human rights violations
took place. The publication of the final report establishes the documented events as part of the
state‘s history, which, along with the report‘s recommendations, attempts to prevent reoccurrences.
The final report may also name those responsible for or involved in the human rights violations,
although at times may refrain from doing so for fear of backlash or even a return to the violence of
the past.



4 See the International Center for Transitional Justice‘s website, at http://www.ictj.org/en/index.html.
                                                          15
       A truth commissions may also make recommendations for reparations to be given to the
victims, which usually take the form of cash payments, pensions, free access to health care and
psychiatric treatment, or public memorials and national remembrance days. Due to governmental
resource constraints, however, reparations may not involve substantial payments of compensation.
There have, however, for example in Argentina, been some efforts to seek compensation from the
perpetrators rather than relying entirely on the government.

David Weissbrodt & Paul W. Fraser, Book Review, 14 HUM. RTS. Q. 601, 604-09 (1992)
(reviewing National Commission on Truth and Reconciliation, Report of the Chilean National
Commission on Truth and Reconciliation (1991)) (footnotes omitted):

[Political] Transitions and Commissions of Inquiry

        [T]ransitions from repressive military dictatorships to democracy in Argentina (1983), Brazil
(1985), . . . and Uruguay (1984) offered valuable lessons within differing political circumstances. . .
. Incoming governments in each of these countries initially had a popular mandate for a
democratically elected president and a diminished role for the military. In all of these countries, the
new government faced political constraints due to the continued influence of the military. Not all of
these countries managed even to appoint a bona fide commission of inquiry. Those commissions of
inquiry that were appointed offer many lessons in the pitfalls of overly narrow mandates, poor
timing, faulty methodology, resistance from the military, and inadequate resources. . . .

A.     The Case of Argentina

        On 24 March 1976, a military coup overthrew the government of Isabel Mart[í]nez de Peron
with the objective of stabilizing the economy and suppressing ―leftist subversion.‖ Argentina
underwent a grave human rights crisis during the period of military rule between 1976 and 1983 and
emerged as a democracy in late 1983 with the election of President Raúl Alfonsín. At the end of
1983, President Alfonsín appointed a commission of inquiry, headed by the prominent Argentine
novelist Ernesto Sabato, to undertake a thorough accounting of the organization and methods the
Argentine security forces used in carrying out their policy which resulted in thousands of
disappearances. The Sabato Commission, as it became known, took advantage of the Argentine
military‘s loss of power and prestige in their defeat during the War in the South Atlantic, to produce
a detailed report of human rights violations and the related system of repression. . . .

        The Sabato Commission forwarded its report to President Alfonsín in September 1984 along
with documentation which included the names of over 1,300 military officers implicated by the
testimony received and the research done by the Commission. President Alfonsín decided not to
make public the names of the officers, on the ground that they should be accused of criminal acts
only by means of formal charges brought against them. The names, however, were leaked to the
press and published in the journal El Periodista. The detailed Sabato Commission report raised great
hopes among Argentine victims, their families, and human rights organizations that the perpetrators
would be brought to justice.


                                                  16
        During five months in 1985, nine military leaders were tried for the specific offenses of the
―dirty war.‖ On 9 December 1985, the court issued its verdict. The tribunal sentenced General Jorge
Videla and Admiral Emilio Massera, who commanded the Army and Navy, to life in prison. It
sentenced two other participants to a term of years and acquitted the remaining defendants.
Although hundreds of other prosecutions were initiated, [legislation] during Alfonsín‘s presidency
ultimately prevented action against almost all of the more junior officers and the perpetrators of the
most heinous abuses. . . .

        A top advisor to President Alfonsín on human rights policy now admits that Argentina should
have moved more rapidly in trying military officers. As time passed, officers became more inclined
to protect their comrades, and they closed ranks and covered over distinctions between military
personnel who had murdered and tortured and those who had committed less serious offenses. Also,
once the euphoria of the new democracy had faded, economic and social problems weakened the
administration. . . .

B.     Other Transitional Situations in Latin America . . .

        Transitions in Latin America and elsewhere during the 1980s offered examples of the
political constraints on governments in pursuing the imperatives of truth and justice. In Uruguay,
President Julio Sanguinetti was elected in November 1984 on a platform that included bringing the
military to justice for human rights violations under the dictatorship (1973-1984). The military that
ruled Uruguay between 1973 and 1984 was responsible for the widespread use of torture and
arbitrary imprisonment. . . . In September 1986, not long after the opening of hearings in several of
the forty criminal cases pending against 180 military officers, Sanguinetti‘s Colorado Party proposed
a blanket amnesty law for the military. The ruling party pushed a bill through the legislature which
had the effect of precluding the state from seeking punishment for most of the military‘s human
rights violations before 1985. . . .

        Brazil underwent a period of repression between 1964 and 1985, and if not for the efforts of a
nongovernmental group, much of the truth about human rights violations might not have been
revealed. In Brazil, the transition was accomplished within a framework of consensus that there
would be no need for trials of the perpetrators. . . . [T]he worst violations had occurred some fifteen
years before the transition to democracy. The violence in Brazil had been aimed at a comparatively
small sector of society, and the military managed to leave the government gradually over a period of
years. The interests of truth were served by the efforts of a secret team that, working under the
auspices of the Archbishop of Sao Paulo, produced the book Brasil: Nunca Mais.

        Each transition brought hope among human rights organizations, survivors, relatives of the
victims, and others that the true story about human rights violations would be revealed and that the
perpetrators would be brought to justice. None of the transitional political situations in Argentina,
Brazil, . . . or Uruguay offered an ideal outcome. Each country still faced a formidable military
presence and risked a return to military control if it pressed too hard for information about violations
and convictions of military perpetrators.


                                                  17
[Ed. note: The summaries above served as background for the authors‘ assessment of the work of
the Chilean National Commission on Truth and Reconciliation, which was created in 1990 by
President Patricio Aylwin. Aylwin had taken office earlier that year, ending sixteen and one-half
years of military dictatorship under General Augusto Pinochet. The Commission was charged with
gathering information about human rights violations, including murder, arbitrary detentions,
disappearances, and torture committed by the military during the Pinochet years. Jose Zalaquett
served as a member of the Commission.

        The Commission sought to expose the truth, pursue justice, and achieve national
reconciliation -- repentance by the perpetrators and forgiveness by the victims. Despite several
obstacles, the most formidable of which was the continued presence of Pinochet as Commander-in-
Chief of the Chilean Army, the Commission submitted its final report to President Aylwin in
February 1991. The Commission provided an officially sanctioned forum in which victims and
relatives could give their testimony, and succeeded in establishing the ―official truth‖ and in attaining
government acknowledgment of responsibility for violations.

       The second volume of the Commission‘s report identifies more than 2,000 victims. The
Commission also succeeded in proposing reparations procedures, which were later implemented by
the Chilean Congress. The Commission stopped short, however, of fully exposing the ―truth‖ by
avoiding explicit findings of individual responsibility. The Commission did not identify individuals
and thus conducted no prosecutions.]

                                               *****

        Developments in Argentina and Chile lend support to Zalaquett‘s suggestion that initial
barriers to individual accountability may diminish over time. During the dirty war, babies that were
born to mothers in military detention centers were often taken and placed in an illegal adoption
network. Immunity laws protected those responsible until 1992 when the Argentine legislature
enacted statutes that bypassed the prosecutorial limitations. Subsequently, former members of the
government were successfully prosecuted for these kidnappings; however, prosecuting the torture
and murder of their parents was still off limits.

        Since 2001, however, Argentina has taken significant steps in addressing the disappearances
during its years of military rule. In fact, investigations into disappearances have led to the arrest and
prosecution of several high ranking military officers.

        In early 2001, a federal judge nullified immunity laws, known as the Full Stop and Due
Obedience laws, adopted during the Alfonsín presidency. These laws had shielded an estimated 400
military officers from prosecution. In March 2001, Federal Judge Gabriel Cavallo ruled that the
Full Stop and Due Obedience laws were unconstitutional. In his decision, he pointed to the
invalidity of the amnesty laws under the American Convention on Human Rights as stated in
decisions issued by the Inter-American Commission on Human Rights and the Inter-American Court
of Human Rights. On June 14, 2005, the Supreme Court affirmed the lower court‘s ruling that the
immunity laws were unconstitutional. This development, along with President Nestor Kirchner‘s

                                                   18
ratification of the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes
Against Humanity, opened the way for the prosecution of the past human rights violations.

       Additionally, several European countries, such as France, Germany, Italy, Spain, and
Sweden, had called upon Argentina for the extradition of those responsible for the torture and
disappearance of European nationals. In another break from the policy of his predecessors, since
2003, President Kirchner has actively cooperated with European extradition efforts for alleged
human rights violators who are not facing charges in Argentina. See discussion of Argentina‘s
amnesty laws in Chapter 11.

        In Chile, efforts to bring human rights violators to justice were advanced by a series of
events beginning with the arrest in of Augusto Pinochet in London in October 1998. As discussed in
greater detail infra at 92-93. Pinochet was detained on the basis of an extradition request filed by a
Spanish court, which sought to try the former leader on charges of murder, torture, and hostage
taking. Pinochet was ultimately released on health grounds, but not before Great Britain‘s House of
Lords had ruled that Pinochet‘s status as head of state at the time of the alleged crimes did not bar his
prosecution for torture. Back in Chile, Pinochet faced over 100 criminal charges, including one
stemming from the activities of the ―Caravan of Death,‖ a unit alleged to have executed or
―disappeared‖ political detainees on Pinochet‘s orders. In August 2000, the Chilean supreme court
upheld a lower court ruling that Pinochet could be tried in connection with the activities of the
―caravan.‖ The courts reasoned that ―disappearances‖ were ongoing crimes, and therefore not
covered by the amnesty law of 1978. See Anthony Faiola, Chile‟s Top Court Strips Pinochet of
Immunity, WASH. POST, August 8, 2000. In December 2000, a Chilean judge formally charged
Pinochet in the kidnappings of opponents and placed him under house arrest. See Clifford Krauss,
Pinochet's Arrest Ordered by Judge, N.Y. TIMES, Dec. 2, 2000.

        After twenty-five years of impunity, Chilean officials responsible for the disappearances are
finally being prosecuted. After Pinochet was exempted from trial three times for medical reasons, in
December 2005, Chile‘s Supreme Court held that Pinochet had been exaggerating his symptoms and
was indeed fit for trial. Accordingly, the Supreme Court upheld the indictment and house arrest of
Pinochet for the disappearance of six political dissidents in the 1970s.

        In January 2005, General Manuel Contreras joined four other former intelligence operatives
in prison for their role in the disappearance of a Chilean citizen in 1975. They are the first Chilean
officials to be imprisoned in Chile for the disappearance of opponents of Pinochet‘s dictatorship.
Contreras is to serve twelve years. Additionally, in March 2006, a Chilean judge indicted a retired
Chilean general along with twelve other retired army officers on homicide charges in connection
with the killing of seventy-five people. Moreover, since 2000, various members of the Pinochet
family have faced charges ranging from human rights abuses to tax evasion.

        In Uruguay, the passage of time has not created political conditions conducive to criminal
investigations into human rights abuses. In 1988, opponents of the amnesty law began collecting
signatures to force a referendum on the law under a constitutional provision allowing plebiscites
requested by 25 percent of registered voters. After a petition drive marked by repeated government

                                                   19
attempts to disqualify voters‘ signatures, some 634,702 signatures were filed, more than enough to
force the referendum. In April 1989, however, after a government-backed scare campaign, the
referendum was defeated. See Servicio Paz y Justicia, URUGUAY NUNCA MAS: HUMAN RIGHTS
VIOLATIONS, 1972-1985 (1992). While the 1986 immunity law exempted the police and military
from prosecution for human rights violations committed before March 1985, Uruguayan law does
permit courts to refer disappearance cases to the president. Amnesty International, Uruguay, Report
2005.5 Article 4 of the immunity law specifically requires the president to order immediate
investigations. Fulfilling campaign promises to invoke Article 4, soon after the election of president
Tabaré Ramón Vázquez Rosas, in March 2005, criminal charges of aggravated homicide were filed
against former Uruguayan president Juan Maria Bordaberry and his foreign minister, Juan Carlos
Blanco. While progressing more slowly than Argentina and Chile, Uruguay has initiated reparations
programs for victims of human rights abuses and has begun investigations of the human rights
violations themselves. See Juan Mendez, Key to Future Is in Confronting the Past, International
Center for Transitional Justice, March 24, 2006.6

                                                  *****

John Dugard, Reconciliation and Justice: The South African Experience, 8 TRANSNAT’L L. &
CONTEMP. PROBS. 277 (1998) (footnotes omitted):

III. The South African Truth and Reconciliation Process

A. Background of the Amnesty Legislation

        Before 1990, when the South African national liberation movements and the South African
apartheid regime were locked in a conflict, both political and military, it was widely believed that, if
the liberation movements were victorious in their effort to overthrow the apartheid regime by force,
the leaders of the regime would be tried in the same way that Nazi leaders had been tried at
Nuremberg.

        . . . This plan was thwarted, however, by the abandonment of apartheid by the National Party
regime. In February 1990, President Frederik W. de Klerk announced the end of apartheid, withdrew
the ban on the African National Congress (hereinafter ANC) and Pan-Africanist Congress
(hereinafter PAC), released Nelson Mandela from prison, and initiated a process of negotiation
aimed at the establishment of a just political order in South Africa. To facilitate negotiations
between the National Party regime and the ANC, the principal liberation movement, the National
Party itself released political prisoners and granted temporary indemnity from prosecution to
members of the ANC in exile for crimes committed in the course of their struggle against apartheid.
The National Party government then attempted to extend this indemnity to its own security forces--a
measure that proved to be ineffectual. Consequently it was left to constitutional negotiations to
decide on the question of dealing with the crimes of the past.


5 Available at http://web.amnesty.org/report2005/ury-summary-eng.
6 Available at http://www.ictj.org/en/news/features/896.html.
                                                      20
B. The Amnesty Legislation

       The new ANC-led South African government could have decided to prosecute members of
the former regime for the atrocities of apartheid, at least in theory, but political reality made this
impossible. The National Party government had participated actively in the transition from apartheid
to democracy and, in terms of the constitutional compact, it was to be rewarded with places in a
government of national unity to rule South Africa under an interim Constitution. Politically there
were only two options open to the negotiators of the new political order: unconditional, blanket
amnesty, which understandably was favored by the National Party, or conditional amnesty for
individual applicants. The latter was chosen.

        In 1995, Parliament enacted the Promotion of National Unity and Reconciliation Act which
gives effect to the policy of conditional amnesty. Its preamble identifies the principal goals and the
procedures to be followed: reconciliation, amnesty, reparation, and the search for truth. On the
search for truth it declares that it is deemed necessary to establish the truth in relation to past events
as well as the motives for and circumstances in which gross violation of human rights have occurred,
and to make the findings known in order to prevent a repetition of such acts in future.

        The Act provides for the creation of a Truth and Reconciliation Commission (TRC) of
seventeen members, appointed by the President in consultation with the Cabinet, to establish, by
means of hearings and investigations, a complete picture of ―the gross violations of human rights‖
committed between March 1960 . . . and 1993, to facilitate the granting of amnesty, to restore the
human dignity of victims by providing them with an opportunity to relate their own accounts of the
human rights violations of which they were victims, to recommend reparation to the victims of
human rights abuses, and to prepare a report containing recommendations of measures to prevent the
future violations of human rights. A Commission broadly representative of the peoples of South
Africa, presided over by Desmond Tutu, Nobel Peace Laureate and former Archbishop of Cape
Town, was appointed early in 1996 and commenced the task of conducting public hearings into
human rights violations. . . .

       The TRC has wide powers of investigation, including . . . the power to subpoena persons to
appear before it. Its hearings are public unless special circumstances require an in camera hearing. . .
. Any person subpoenaed to appear before the TRC is entitled to legal representation.

        The ―Committee on Amnesty,‖ unlike the TRC, is a quasi judicial body. . . . An amnesty
committee considers applications for amnesty and may grant amnesty if it is satisfied that the
applicant has committed an act constituting ―a gross violation of human rights,‖ and made ―a full
disclosure of all relevant facts,‖ and that the act to which the application relates is ―an act associated
with a political objective committed in the course of conflicts of the past.‖ The criteria to be
employed for deciding whether the act is one ―associated with a political objective‖ are drawn from
the principles used in extradition law for deciding whether the offense in respect of which extradition
is sought is a political offense. The criteria include, inter alia, the motive of the offender; the context
in which the act took place and, in particular, whether it was committed ―in the course of or as part
of a political uprising, disturbance or event[‖;] the gravity of the act; the objective of the act, and in

                                                    21
particular, whether it was ―primarily directed at a political opponent or State property or personnel or
against private property or individuals;‖ and the relationship between the act and the political
objective pursued, and ―in particular the directness and proximity of the relationship and the
proportionality of the act to the objective pursued.‖ A person granted amnesty shall not be
criminally or civilly liable in respect of the act in question.

       The Amnesty Committees, like the TRC, conduct their hearings in public. Both applicants
and victims are entitled to legal representation. . . .

D. The Truth and Reconciliation Process in Practice

        . . . Hearings held by the TRC and its committees on Human Rights Violations and
Reparation and Rehabilitation have been public, and televised throughout the country on a wide field
of subjects ranging from particular atrocities to contextual themes designed to explain the nature of
apartheid and its impact on South African society: on the sufferings of the victims of apartheid (at
which victims and their families have given graphic accounts of systematic police torture); on the
conduct of the security forces; on the impairment of human dignity; on prison conditions; [and] on
the conflict between the Inkatha Freedom Party (IFP) and the ANC in Kwa Zulu/Natal . . .. In
pursuit of its objective to make known the fate or whereabouts of victims the TRC‘s investigating
unit has been able to find, and exhume, the bodies of some of the disappeared. Despite repeated
requests, the TRC failed to secure the presence of former President, Pieter W. Botha, to answer
questions about the role of the State Security Council under his presidency in the gross violation of
human rights. Botha is, however, presently on trial on charges of contempt of the Commission
arising out of his refusal to appear before it.[7]

        . . . [T]he judicial nature of the proceedings has resulted in time-consuming ―trials.‖ While
members of the military generally have refused to apply for amnesty, their counterparts in the
apartheid security police clearly have decided that amnesty offers them the most secure future. This
has resulted in a succession of hearings in which members of the security police have confessed to
the assassination and torture of anti-apartheid activists in pursuance of superior orders to ―eliminate‖
or ―remove‖ such persons or because of their own perception as to what would best advance the
interest of the apartheid state. The coldly clinical testimony of the planning and execution of the
assassinations has clearly shaken many white South Africans who believed the explanation of the
National Party regime that allegations of police brutality during the apartheid era were simply
―communist propaganda.‖ . . .

                                                E. Prosecutions

        Many guilty of gross human rights violations have chosen not to apply for amnesty in the
belief that evidence of their wrongdoing will not be forthcoming. Undoubtedly the acquittal of the
former Minister of Defence, Magnus Malan, and his generals, for murder arising from the
KwaMakutha massacre, has strengthened their conviction that they are untouchable. . . .
7
 Botha was subsequently found guilty of the contempt charge. See Botha guilty of contempt for defying truth panel;
South Africa‟s former president to be fined or jailed, S. F. EXAMINER, Aug. 21, 1998, at A-2.
                                                       22
        Subsequent events have called the approach into question. Major Eugene de Kock, a member
of the notorious Vlakplaas Unit responsible for counter insurgency operations was found guilty in
August 1996 of six counts of murder and some thirty other charges, ranging from attempted murder
to fraud, and sentenced to 212 years of imprisonment. He has applied for amnesty, but it seems
unlikely that all of his crimes will fall within the generous provisions of the amnesty legislation. . . .
Prosecutors in several of the provinces are now bringing charges against other members of the
Vlakplaas Unit. . . .

IV. Does South Africa‟s Truth and Reconciliation Process
      Comply with International Norms?

        In my view the South African truth and reconciliation/amnesty process does comply with
internationally accepted standards. It is the result of a political compact included in a liberal
Constitution that was given form by a statute enacted by a democratically elected Parliament. The
TRC and its amnesty committees are independent of government and are broadly representative of
the peoples of South Africa. The process is sufficiently funded and resourced to enable both TRC
and amnesty committees to make a full and thorough investigation into the crimes of the past. The
TRC has a broad mandate that empowers it to investigate ―the gross violations of human rights‖ over
a period of thirty-four years and to receive testimony at public hearings from the victims of such
violations. The perpetrators of these violations may be named, but adequate safeguards are provided
to ensure that their procedural rights are protected. The TRC is required to recommend the payment
of compensation to victims and is obliged to submit its final report within a reasonable time--less
than three years. Amnesty is not unconditional. No person will be given amnesty unless he or she
applies for amnesty, makes a full disclosure of the crimes, and establishes that they were committed
with a political objective. Wrongdoers who fail to follow this course will be, and indeed are being,
prosecuted.

        Both international human rights law and international humanitarian law demand that those
responsible for the gross violation of human rights should be held accountable for their crimes. For
this reason the granting of unconditional, blanket amnesty is unacceptable. On the other hand,
political realities often prevent a successor regime from prosecuting members of the previous regime
for gross human rights violations constituting international crimes. In these circumstances it is
unlikely that international law will develop sufficiently, by means of treaty or custom, to impose an
obligation on successor regimes to prosecute those guilty of international crimes. The truth
commission accompanied by conditional amnesty offers a viable alternative to prosecution. Here the
South African model provides a helpful precedent. It is not without flaws but it does provide a
mechanism other than prosecution that ensures that wrongdoers are held accountable, and that crimes
of the past are not forgotten.

                                                *****

     From prison, de Kock applied for amnesty and ―broke the code of silence.‖ 5 TRUTH AND
RECONCILIATION COMMISSION OF SOUTH AFRICA REPORT 202 (1998). De Kock‘s revelations about

                                                   23
past human rights violations committed by the Vlakplaas Unit compelled many members of the
security police to apply for amnesty to avoid facing likely prosecution. See Amnesty International
and Human Rights Watch, Truth and Justice: Unfinished Business in South Africa, Feb. 13, 2003.8
Because de Kock‘s application spurred so many security police to apply for amnesty, ―[t]he TRC was
. . . able to compile a relatively thorough account of the activities of this branch of the former
government‘s security forces.‖ Id. A similar record of other perpetrators of human rights violations
from other sectors, including the military, was not achieved due to the lack of fear of exposure or
prosecution. Therefore, the members of the military were ―conspicuously absent‖ from the amnesty
application process. Id.

       Although de Kock‘s goal was to expose the complicity of senior officials in the crimes
committed by the security police, senior officials such as Botha were able to avoid prosecution for
serious crimes without applying for amnesty. Botha was never charged despite the Truth and
Reconciliation Commission‘s finding that he was guilty of gross human rights violations. He neither
cooperated with the commission nor applied for amnesty.

        Botha‘s situation is not unique. Few of those responsible at both upper and lower levels of
government were ever convicted of human rights abuses even when they did not cooperate with the
Truth and Reconciliation Commission. For example, anti-apartheid leader Steven Biko was
murdered by policemen while in police custody; however, the prosecutor declined to prosecute those
responsible. The government may have been concerned that the prosecution could not muster
enough evidence to show the criminal responsibility of the police beyond a reasonable doubt.
Because of Biko‘s importance, the government may have been worried that a verdict of not guilty for
insufficient evidence would undermine the widely held understanding of how Biko died.

        In 2006, the National Prosecuting Authority publicized new policies for prosecuting
apartheid-era human rights abuses. The rules are designed for dealing with individuals who were
either denied amnesty by the Truth and Reconciliation Commission or declined to seek amnesty from
the commission. Subsequently, the International Center for Transitional Justice, along with several
African NGOs, wrote South African President Thabo Mbeki voicing their disapproval of the new
policies.9 They fear that the policy ignores an individual‘s lack of cooperation with the Truth and
Reconciliation Commission and fails to follow the international trend of prosecuting those guilty of
human rights abuses. The organizations also pointed out that participating in a truth and
reconciliation process should mitigate an individual‘s punishment for the human rights violations,
not provide amnesty. The letter states that ―[t]he Truth and Reconciliation Commission was vested
with certain powers to grant amnesty in order to obtain the truth about the past. It would be a betrayal
of victims who participated in the truth commission process for that contract to be revisited to
provide perpetrators new avenues for impunity.‖ Letter from Juan Mendez et al., President,
International Center for Transitional Justice, to Thabo Mbeki, President, South Africa (Apr. 7,
2006).10 Prosecutions remain slow for human rights abuses during the apartheid era.


8 Available at http://web.amnesty.org/library/index/engafr530012003.
9 The letter is available at http://www.ictj.org/en/news/features/909.html.
10 Available at http://www.ictj.org/en/news/features/909.html.
                                                          24
        The Truth and Reconciliation Commission‘s work officially ended in December 2001. By
then, 7,094 people had applied for amnesty or immunity and 1,160 applications had been granted.
Amnesty International and Human Rights Watch, Truth and Justice: Unfinished Business in South
Africa, Feb. 13, 2003.11 The applications of those not granted amnesty or immunity often failed ―on
the grounds of incomplete disclosure, the absence of a political objective, the disproportionality of
the act to the objective pursued or failure to meet other requirements of the legislation.‖ John
Dugard, Reconciliation and Justice: The African Experience, 8 TRANSNAT‘L L. & CONTEMP. PROBS.
277 (1998). Three years after TRC‘s work had officially ended, the government of South Africa
announced that it would follow the recommendation of the TRC and pay reparations to some 22,000
victims identified by the TRC.


                                       NOTES AND QUESTIONS

1.     Does a government‘s fear of failure to convict justify the failure to prosecute those responsible for
human rights violations?

2.      If one accepts Orentlicher‘s duty to prosecute proposal, what criteria should be applied, and by whom,
to determine whether human rights violations are sufficiently ―massive‖ to require prosecution?

3.       Do you agree with Dugard that the process for granting conditional amnesties in South Africa
effectively holds a wrongdoer accountable for his or her actions? Critics of the Truth and Reconciliation
Commission argue that full accountability requires criminal punishment. If this view is correct, what might
explain the decision of many perpetrators of human rights violations not to apply for amnesty?

4.        Truth Commissions have also been established by the United Nations. For example, the U.N.-
brokered Salvadoran Peace Accords called for the establishment of a Commission on the Truth for El Salvador.
 The Commission was comprised of three prominent international jurists appointed by the Secretary-General
who were tasked with investigating ―serious acts of violence‖ occurring between 1980 and 1991, and in
particular acts with a broader impact on society as a whole. The mandate of the Commission also included
formulating proposals for legal, political, and administrative measures for preventing the repetition of serious
acts of violence. The mandate did not state whether the Commission would identify individual perpetrators in
its final report, however. Once it became clear that the commissioners interpreted their mandate to require the
naming of names, Salvadoran President Alfredo Cristiani launched an unsuccessful diplomatic campaign at the
U.N. and in several capitals to prevent the Commission from identifying individual perpetrators. In its final
report the Commission named government and military personnel as well as insurgents believed to have
committed grave human rights abuses during the Salvadoran civil war, and recommended a series of steps to
ensure that the identified individuals were removed from public office and other positions of authority. Days
after the publication of the Commission‘s report, the Salvadoran legislature adopted a law granting amnesty to
all persons who committed serious acts of violence. See Thomas Buergenthal, The United Nations Truth
Commission for El Salvador, 27 VAND. J. TRANSNAT‘L L. 497, 498-503, 513-22, 533-38 (1994).

5.     The ability of a truth commission to carry out its mandate may be limited in situations where important
evidence or information is held by a foreign government unsupportive of the truth-telling process. Among the


11 Available at http://web.amnesty.org/library/index/engafr530012003.
                                                       25
crimes investigated by the Truth Commission for El Salvador was the 1980 killing of four U.S. church
workers. Four low-ranking members of the National Guard and their sergeant had been convicted of the
killings in 1984 and sentenced to 30 years in prison. The question of possible criminal responsibility further
up the chain of command had, however, never been fully answered. Shortly after the killings and prior to the
trial of the five guardsmen, the U.S. government had conducted its own investigation and announced that it had
discovered conclusive proof that the sergeant had acted on his own initiative -- and not at the direction of
commanders of the U.S.-backed Salvadoran army. This evidence was not made available to the Commission,
however. The final report of the Commission found that high-ranking military personnel had concealed the
facts of the killings, but the Commissioners were unable to answer the question of ultimate criminal
responsibility.

         In 1998, after two of the convicted guardsmen told the Lawyers Committee for Human Rights in a
prison interview that they had acted on ―orders from above,‖ one of the members of the Commission on the
Truth for El Salvador proposed that a commission of inquiry be established to investigate the activities of the
U.S. government in El Salvador in the years prior to the 1994 peace settlement. See Thomas Buergenthal, The
U.S. Should Come Clean On „Dirty Wars,‘ N.Y. TIMES, April 8, 1998, at A 19. Later in 1998, President
Clinton instructed the State Department to release the long-held secret evidence to the Lawyers Committee.
The evidence consisted of a tape recording of an interview in which the sergeant had confessed to the killings,
but in which the question of superior orders was neither asked nor answered. See Lawyers Committee for
Human Rights, Media Alert: Lawyers Committee Obtains Embassy Evidence on US Nuns Murdered in El
Salvador, June 24, 1998.12

6.       In a series of cases beginning in the early 1990s, the Inter-American Commission and Court of Human
Rights found amnesty laws in Argentina, Chile, El Salvador, and Uruguay to be in violation of the American
Convention‘s provisions on the right to a fair trial, the right to remedy, and the obligation to ensure rights
guaranteed in the Convention. See, e.g., Case No. 10.843, Inter-Am. C.H.R. 156 (1997). Taken together,
these decisions provide a number of guidelines for amnesties covering serious violations of human rights:
                  (1) To be legally valid at all, amnesties must be adopted by democratic bodies, usually the
         legislature; self-amnesties by lawless regimes are not valid.
                  (2) Amnesties may not foreclose investigations of violations, sufficient to vindicate both
         society‘s right to know the truth and survivors‘ right to know what happened to their relatives.
                  (3) Amnesties must not preclude victims from initiating or participating in judicial criminal
         investigations, at least in states that have such procedures.
                  (4) Amnesties may not foreclose or in practical effect substantially limit the right of victims or
         survivors to obtain adequate compensation for violations.
                  (5) Amnesties must not apply to crimes against humanity.
                  (6) Amnesties should not apply to perjury and other obstructions of justice by officers of the
         court and litigants.
                  (7) Amnesties should not be given without an acknowledgment by the state of responsibility
         for past violations.
                  (8) Investigations must seek to identify those responsible and name names; otherwise they are
         insufficient.
                  (9) States must prosecute and punish perpetrators of serious human rights violations; they may
         not be amnestied.
Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for
Atrocities, 59 LAW & CONTEMP. PROBS. 197 (Fall 1996).


12 Available at http://www.lchr.org/media/lac698.htm.
                                                        26
         The United Nations has also taken an interest in creating standards to assist governments in
confronting past human rights abuses. In 1997 the U.N. Sub-Commission on Prevention of Discrimination and
Protection of Minorities completed work on a Set of Principles for the Protection and Promotion of Human
Rights through Action to Combat Impunity, U.N. Doc. E/CN.4/Sub.2/1997/20 (1997). Echoing the approach
of the Inter-American institutions, Principle No. 2 recognizes a right to know and a right to the truth:

        Every people has the inalienable right to know the truth about past events and about the circumstances
        and reasons which led, through the consistent pattern of gross violations of human rights, to the
        perpetration of aberrant crimes. Full and effective exercise of the right to the truth is essential to avoid
        any recurrence of such acts in the future.

For an alternative view of the truth-seeking imperative reflected in Principle No. 2, see Priscilla B. Hayner,
International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal, 59
LAW & CONTEMP. PROBS. 173 (Fall 1996).

7.       Several post-Communist governments in Europe have responded to past human rights abuses by
adopting laws which bar certain categories of former government officials and party members from public
employment (the terms for this process is known as lustration). Unlike the administrative sanctions proposed
by the members of the U.N. Truth Commission for El Salvador, these screening laws are applied in a
categorical manner and are not based on a finding of individual culpability. Defenders of these measures argue
that a successful transition to democracy demands the removal from public institutions of individuals who may
have taken part in violating human rights. Critics point out that such measures impose collective guilt without
due process and infringe upon individual rights of association and expression. For additional reading on the
issues raised by these administrative measures, see Herman Schwartz, Lustration in Eastern Europe, 1 PARKER
SCH. J. E. EUR. L. 141 (1994); Mark S. Ellis, Purging the Past: The Current State of Lustration Laws in the
Former Communist Bloc, 59 LAW & CONTEMP. PROBS. 181 (Fall 1996).

8.       Following the unification of the two German states in 1990, over 100 former East German
functionaries, ranging from low-ranking border guards to a one-time head of state, were convicted for the
killing of East Germans who had tried to flee to West Germany. Between 1961 and 1989, over 450 persons
died while attempting to cross the border. These cases raised a number of difficult questions. On the one
hand, the shootings did not clearly violate East German law. On the other, they did constitute arbitrary killings
under international human rights law. In early 2000, the Federal Constitutional Court of Germany rejected the
appeal of four guards who had challenged their convictions, inter alia, on grounds that they violated the
prohibition on ex post facto laws. The Court held that the convictions were not based on an ex post facto
application of the criminal law because the shootings violated human rights norms which were universally
recognized at the time of their commission. See Manfred J. Gabriel, Coming to Terms with the East German
Border Guards Cases, 38 COLUM. J. TRANSNAT‘L L. 375 (1999).

9.       Human rights organizations and scholars have begun to place greater emphasis on compensation for
victims rather than focusing solely on prosecution of perpetrators. See, e.g., Frank Newman, Redress for Gulf
War Violations of Human Rights, 20 DENV. J. INT‘L L. & POL‘Y 213 (1992). The U.N. Sub-Commission on
Prevention of Discrimination and Protection of Minorities demonstrated a commitment to probing the issue by
appointing in 1989 Theo van Boven as Special Rapporteur to study legal and practical issues associated with
compensation. Van Boven completed a study concerning the right to restitution, compensation and
rehabilitation of victims of gross human rights abuses and drafted a set of proposed basic principles and
guidelines, revised in 1996. See Theo van Boven, Revised Set of Basic Principles and Guidelines on the Right
to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, U.N. Doc.
E/CN.4/Sub.2/1996/17 (1996). In 1998, the U.N. Commission on Human Rights appointed M. Cherif
                                                       27
Bassiouni as Independent Expert to prepare a revised version of the basic principles and guidelines with a view
to their adoption by the U.N. General Assembly. Bassiouni completed his work in 2000 and the Commission
forwarded the document to the Secretary-General for transmission to Governments. See M. Cherif Bassiouni,
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of
International Human Rights and Humanitarian Law, U.N. Doc. E/CN.4/2000/62 (2000).

10.      In August 1995, the government of Australia established a national inquiry to examine the forced
removal of aboriginal children from their families during the first half of the 20th century. Under the removal
policy, hundreds of children had been denied contact with their parents and their culture, and many had been
subjected to physical or sexual abuse by institutional authorities and foster parents. Concluding that the
practice had violated international human rights obligations to prevent systematic racial discrimination and
genocide, the National Inquiry proposed a system of compensation in line with the recommendations set out in
the van Boven study. See Tony Buti & Melissa Parke, International Law Obligations to Provide Reparations
for Human Rights Abuses, 6 Murdoch U. Electronic J. L. (No. 4, 1999).13

11.      In 1988, the U.S. Congress approved individual payments of $20,000 to Japanese-Americans who had
been held in internment camps during World War II. Over 81,000 individuals received the compensation and
an official apology was extended to Japanese-Americans as a whole. Excluded from the payments were more
than 2,200 men, women and children of Japanese descent who had been forcibly relocated to the U.S. from
Latin American countries and held for possible exchanges for Americans trapped in Japan. After several
Japanese-Latin Americans brought suit against the U.S. Government in U.S. district court a settlement was
reached under which survivors were to receive a presidential apology and $5,000 in reparations. See
Mochizuki v United States, 43 Fed.Cl. 97 (1999) (containing an appendix of declarations by survivors
describing their experiences). Legislation has since been introduced in Congress to provide compensation to
Japanese-Latin Americans at the same level received by Japanese-Americans. See K. Connie Kang, Interned
Japanese Latin Americans Seek Redress Reparations: Bill would benefit those who were taken from homes
and brought to U.S. in WWII, L.A. TIMES, May 16, 2000, at B2. While bills to investigate and compensate
Latin American Japanese victims were also introduced in Congress in 2003 and 2006, at the time of
publication, neither bill had advanced past the committee stage. See H.R. 779, 108th Cong. (1st Sess. 2003);
see S.B. 2296, 109th Cong. (2nd Sess. 2006).

         Victims of abuses committed in Nazi-occupied Europe have sought and received compensation from
private actors. In the late 1990s, settlements were reached with a group of German and American-owned
companies which had used slave laborers provided by Nazi authorities and with Swiss banks which had
profited from confiscated assets and unclaimed accounts belonging to European Jews. Negotiations have also
begun with European and North American insurance companies over unpaid insurance policies. See Putting a
Price on the Holocaust, THE ECONOMIST, Nov. 27, 1999. For its part, the German government had paid $57
billion in reparations to victims of Nazi crimes as of the end of 1999. In 2000, the German government agreed
to compensate forced and slave laborers of the Nazis an additional ten billion German marks. John Hooper,
Germany Signs £3.3bn Pact for Nazi Victims, THE GUARDIAN, July 18, 2000.14

         Other World War II-era claimants have been less successful in securing individual compensation.
Between 1932 and 1945 over 200,000 women were held by the Japanese Imperial Army in rape centers located
throughout east and southeast Asia. Beginning in the 1980s many victims began to speak of their experiences
and demand redress for the crimes committed against them. After denying for decades the role the Japanese
military had played in operating the centers, in 1993 the Japanese government recognized the extent of its

13 Available at http://www.murdoch.edu.au/elaw/issues/v6n4/buti64_text.html#t1.
14 Available at http://www.guardian.co.uk/international/story/0,3604,344548,00.html.
                                                       28
involvement in an official study of the wartime rape centers. Despite this admission, the government has
consistently argued that the individual victims of the sexual slavery practice have no legal claim to
compensation. Specifically, the Japanese government has denied legal liability on the grounds that the
―comfort station‖ system did not constitute slavery; that rape in armed conflict was not prohibited by the laws
of war or international customary law applicable in 1945; and that new developments in international criminal
law cannot be applied retroactively. The government has also asserted that individual claims for compensation
were covered by post-War agreements between Japan and other Asian States. In 1995, the Japanese
government established the Asian Women‘s Fund to support the work of women‘s NGOs. A purpose of the
Fund was ―to convey to these women the sincere apologies and remorse felt by the Japanese people.‖ See Gay
J. McDougall, The Legal Liability of the Government of Japan for “Comfort Women Stations” Established
During the Second World War, an annex to Gay J. McDougall, Contemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, U.N. Doc. E/CN.4/Sub.2/1998/13
(1998). NGOs organized a Women‘s International Tribunal on Japanese Military Sexual Slavery, which heard
testimony concerning Japan‘s complicity from comfort women and other witnesses, including former Japanese
soldiers. See Christine Chinkin, Women‟s International Tribunal on Japanese Military Sexual Slavery, 95
A.J.I.L. 335 (2001).

        Victims of human rights violations can also seek regional redress via litigation in the European Court
of Human Rights, Inter-American Court on Human Rights, and United States courts. See infra chapters 11 and
12. The International Criminal Court is also empowered to order convicted persons to pay reparations to
victims or their survivors. See Rome Statute of the International Criminal Court, Art. 75, U.N. Doc.
A/CONF.183/9 (1999).

         For additional reading on compensating victims of human rights violations, see Michael Garcia
Bochenek, Compensation for Human Rights Abuses in Zimbabwe, 26 COLUM. HUM. RTS. L. REV. 483 (1995);
Ellen L. Lutz, The Marcos Human Rights Litigation: Can Justice be Achieved in U.S. Courts for Abuses that
Occurred Abroad?, 14 B.C. THIRD WORLD L.J. 43 (1994) and After the Elections: Compensating Victims of
Human Rights Abuses, in NEW DIRECTIONS IN HUMAN RIGHTS 195 (Ellen L. Lutz, Hurst Hannum, & Kathryn
J. Burke eds., 1989); Robert Westley, Many Billions Gone: Is it Time to Reconsider the Case for Black
Reparations?, 40 B.C. L. REV. 429 (1998); Jordan Paust, Suing Saddam: Private Remedies for War Crimes
and Hostage-Taking, 31 VA. J. INT‘L L. 351 (1991); Beth Stephens, The Civil Lawsuit as a Remedy for
International Human Rights Violations Against Women, 5 HASTINGS WOMEN‘S L.J. 143 (1994); Anita
Ramasastry, Secrets and Lies? Swiss Banks and International Human Rights,31 VAND. J. TRANSNAT‘L L. 325
(1998).


12.      For additional reading on transitioning to democracy after pervasive human rights violations or
transiting to democracy post conflict and truth commissions see,

Amnesty International, Ethiopia: Accountability Past and Present: Human Rights in Transition, AI Index:
AFR 25/06/95 (1995);

Amnesty International, Guatemala : All the Truth , Justice for All, AI Index: AMR 34/02/98 (1998);

Mahnoush H. Arsanjani, The International Criminal Court and National Amnesty Laws, 93 AM. SOC‘Y INT‘L
L. PROC. 65 (1999);

GARY BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS (2000).

                                                      29
MICHAEL BAZYLER, HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION IN AMERICA‘S COURTS (2003).

Christine Bell, Colm Campbell, and Fionnuala Ni Aolain, , Justice Discourses in Transition, 13 SOCIAL LEG.
STUD. 305 (2004);

DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRAILS AND THE FORMATION OF HISTORY AND
MEMORY (2003).

Andrew S. Brown, Adios Amnesty: Prosecutorial Discretion and Military Trials in Argentina, 37 TEX. INT‘L
L.J. 203 (2002);

BEN CHIGARA, AMNESTY IN INTERNATIONAL LAW: THE LEGALITY UNDER INTERNATIONAL LAW OF
NATIONAL AMNESTY LAWS (2002);

David A. Crocker, Reckoning with Past Wrongs: A Normative Framework, 13 ETHICS & INT‘L AFF. 47
(1999);

Jessica Gavron, Amnesties in the Light of Developments in International Law and the Establishment of the
International Criminal Court, 51 INT‘L & COMP. L.Q. 91 (2002);

Oren Gross, Book Review, 9 CONSTELLATIONS 286 (2002) (reviewing RUTH G. TEITEL, TRANSITIONAL
JUSTICE (2000));

Maria Jose Guembe, The Argentinean Experience with Economic Reparations for Serious Human Rights
Violations (2005);

Priscilla B. Hayner, Fifteen Truth Commissions--1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 600
(1994), reprinted in 1 TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER
REGIMES 225, 225-26 (N. Kritz ed., 1995);

HOLOCAUST RESTITUTION: PERSPECTIVES ON THE LITIGATION AND ITS LEGACY (Michael J. Bazyler & Roger
P. Alford eds., 2006);

IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE (Naomi Roht-Arriaza ed., 1995);

Daniel J. Macaluso, Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace
Agreement on the Jurisdiction of the Special Court for Sierra Leone, 27 BROOK. J. INT‘L L. 347 (2001);

Fionnuala Ni Aolain and Colm Campbell, The Paradox of Democratic Transitions 27 HUMAN RIGHTS
QUARTERLY (2005)

Mike Oquaye, Human Rights and the Transition to Democracy Under the PNDC in Ghana, 17 HUM. RTS. Q.
556 (1995);

ANDREAS O‘SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE (2002) POST CONFLICT
JUSTICE (M. Cherif Bassiouni ed., 2002);

PAST IMPERFECT: DEALING WITH THE PAST IN NORTHERN IRELAND AND SOCIETIES IN TRANSITION (Brandon
Hamber ed., 1998);
                                                   30
SAMANTHA POWER, A PROBLEM FROM HELL: AMERICA AND THE AGE OF GENOCIDE (2002);

Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32
CORNELL INT‘L L.J. 507 (1999);

Michael P. Scharf, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged
Perpetrators of Serious Human Rights Violations, 33 CORNELL INT‘L L.J. 297 (2000);

Ronald C. Slye, The Legitimacy of Amnesties under International Law and General Principles of Anglo-
American Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT‘L L. 173 (2002);

The South African Truth and Reconciliation Videotape Collection at Yale Law School, available at
http://www.law.yale.edu/outside/scr/trc/index.htm;

STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN
INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY (1997); and

TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRACIES (James McAdams ed., 1997).


D.      THE NUREMBERG PRINCIPLES

        1.      The Absence of a Tribunal for Armenia

Vahakn N. Dadrian, Genocide as a Problem of National and International Law: The World War
I Armenian Case and Its Contemporary Legal Ramifications, 14 YALE J. INT’L L. 221, (Summer
1989) (footnotes omitted).

        During World War I, as the rest of the world looked on, the Ottoman Empire carried out
one of the largest genocides in the world‘s history, slaughtering huge portions of its minority
Armenian population. The Armenian genocide followed decades of persecution by the Ottomans
and came only after two similar but smaller round[s] of massacres in the 1894-96 and 1909
periods had resulted in two hundred thousand Armenians deaths. In all, over one million
Armenians were put to death. The European Powers, who defeated the Turks time and again on
the battlefield, were unable or unwilling to prevent this slaughter. Even worse, they failed to
secure punishment of the perpetrators following World War I. The events of that time have
subsequently slipped into the shadows of world history, thus gaining the title ―the forgotten
genocide.‖ To this day, Turkey denies the genocidal intent of these mass murders.

        Over the past seventy years, the Armenian nation has struggled to have the history of the
Armenian genocide brought to light. Despite the scope of the slaughter, however, the
international community has only recently recognized the genocide officially. In April 1984, a
group of public figures . . . conducted ―People‘s Tribunal‖ hearings on the Armenian genocide
and adjudged it to be a crime without statutory limitations. In August 1985, the U.N.
Subcommission on Human Rights, which had been deadlocked for over fourteen years, took
                                                   31
note, by a 14-1 vote (with 4 abstentions), of the historical fact of the Armenian genocide. Its
parent body, the U.N. Commission on Human Rights, followed suit the next year. Finally, in
June of 1987, the European Parliament declared the Turkish massacres of World War I to be a
crime of genocide under the U.N. Convention on Genocide, and stipulated that Turkey must
recognize the genocide before the Parliament would favorably consider Turkey‘s application for
membership in that body. The European Parliament labelled Turkey‘s refusal to do so an
―insurmountable obstacle to consideration of the possibility of Turkey‘s accession to the
European Community.‖

        The relatively low impact of the genocidal killing of one million Armenians on modern
public consciousness raises serious questions about the ability of the international community to
prevent or punish acts of genocide. Many see the lack of action following the Armenian genocide
as an important precedent for the subsequent Jewish Holocaust of World War II. Indeed, it has
been reported that, in trying to reassure doubters of the desirability and viability of his genocidal
schemes, Hitler stated, ―Who, after all, speaks today of the annihilation of the Armenians?‖ This
connection was raised repeatedly during the U.S. Senate‘s consideration of the U.N. Convention
on Genocide, which the United States ratified on February 19, 1986. A score of Senators, most
notably Senators Dole, Boschwitz, Proxmire, Lugar, Levin, Lautenberg, Riegle, Kerry, and
Wilson, emphasized the historical precedent of the Armenian case and pointed to the enormous
suffering of the Jewish Holocaust that resulted from humanity‘s disregard of the Armenians‘ fate.

        The failures that preceded and followed the Armenian genocide carry important lessons
for present-day international scholars and lawyers seeking to outlaw genocide. While the post-
World War II trials in Nuremberg have shaped much of the current thought on the prevention and
punishment of genocide, the trials resulted from a set of conditions that will rarely arise.
Following World War II, Germany was forced to surrender unconditionally to the Allied forces.
The Allies subsequently ran the German government, eliminating any claim of sovereignty that
Germany otherwise could have asserted. Furthermore, seeking retributive justice against the
Nazis promoted the Allies‘ self- interests, since much of the Nazi persecution was directed at the
Allies‘ own nationals under German occupation.

        Unfortunately, none of these factors were present during or after the slaughter of the
Armenians. Although the European Powers did pursue a strategy of ―humanitarian intervention‖
in Ottoman Turkey during the years leading up to World War I, and they instituted the concept of
―crimes against humanity‖ in 1915 in response to the unfolding genocide, the Powers never
shared the unity of interests that they had following World War II. Most harmful to the
Armenians was the lack of a powerful state to champion their cause; thus, the victors of 1918
willingly dropped their humanitarian concerns in exchange for enhanced favor with the Kemalist
regime that was gaining control of Turkey. In addition, the Allies allowed the Turks to maintain
their own government following their defeat in the war. As a result, the Turkish government
blocked efforts by the Allies to punish the perpetrators of the genocide by asserting its sovereign
rights. While it is difficult to determine for certain, the recent history of killings in Cambodia,
Bangladesh, and Ethiopia indicate that the ineffective efforts at genocide prevention preceding
World War I and the frustrated efforts at punishment following it are more likely to be the norm

                                                 32
than are the Nuremberg trials.

                                                  *****

       2.      The Nuremberg and Tokyo Tribunals

        During World War II and the immediate post-war period the victors, confronted with the task
of responding dramatically to wartime human rights violations, laid the foundation for criminal
prosecutions. From at least 1942 the Allied governments received innumerable reports of Nazi
atrocities involving civilians. In response, the allies vowed to punish the perpetrators.

        The International Military Tribunal that sat at Nuremberg was created on August 8, 1945,
when representatives of the Soviet Union, the United Kingdom, the United States, and the
provisional government of the French Republic signed the Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, otherwise known as ―The London
Agreement.‖ 58 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 280. It set forth the Charter of the
International Military Tribunal (IMT), which laid down the substantive and procedural rules to be
applied by the Tribunal.

       Article 6 of the Charter set forth crimes within the Tribunal‘s jurisdiction -- crimes against
peace, war crimes, and crimes against humanity:

       The following acts, or any of them, are crimes coming within the jurisdiction of the
       Tribunal for which there shall be individual responsibility:

       (a)     Crimes against Peace: namely, planning, preparation, initiation or waging of
       a war of aggression, or a war in violation of international treaties, agreements or
       assurances, or participation in a common plan or conspiracy for the accomplishment
       of any of the foregoing;

       (b)     War Crimes: namely, violations of the laws or customs of war. Such
       violations include, but not be limited to, murder, ill-treatment or deportation to slave
       labor or for any other purpose of civilian population of or in occupied territory,
       murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages,
       plunder of public or private property, wanton destruction of cities, towns or villages,
       or devastation not justified by military necessity;

       (c)    Crimes against Humanity: namely, murder, extermination, enslavement,
       deportation, and other inhumane acts committed against any civilian population,
       before or during the war, or persecutions on political, racial or religious grounds in
       execution of or in connection with any crime within the jurisdiction of the Tribunal,
       whether or not in violation of the domestic law of the country where perpetrated. . . .

       Article 7 of the Nuremberg Charter sets out the principle of individual responsibility and

                                                 33
expressly provides that ―[t]he 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 trials of the 22 Nazi military and political leaders indicted under Article 6 of the London
Agreement began on November 20, 1945, and were monumental in scope and complexity. The IMT
held 403 open sessions, conducted in four languages simultaneously -- English, French, German, and
Russian. The prosecution presented 33 witnesses and placed over 4,000 documents in evidence.
The defense presented 61 witnesses in addition to 19 defendants, and 143 witnesses supplied
evidence for them by way of interrogatories. More than one hundred other witnesses testified and
tens of thousands of affidavits were presented, regarding indictments of criminal organizations such
as the S.S., S.A., and the Gestapo. The trials‘ reported evidence filled 24 printed volumes and 17
volumes of documents. ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 2-3
(1962).

       Judgments were announced on September 30 and October 1, 1946. Nineteen of the accused
were convicted; three were acquitted. Twelve of the convicted were sentenced to death; the
remaining seven were sentenced to imprisonment for terms ranging from ten years to life.

                                               *****

        The International Military Tribunal for the Far East (IMTFE) was established by Special
Proclamation of the Allied Supreme Commander in the Pacific on January 19, 1946.
Representatives from 11 states convened on May 3, 1946, to consider war crimes indictments against
25 defendants. Judgment was pronounced on November 12, 1948. All defendants were convicted,
with 7 sentenced to death and the others sentenced to imprisonment for terms ranging from seven
and one-half years to life. The procedural and substantive rules applied by the Tokyo Tribunal were
modeled after those applied in Nuremberg.

       3.      Control Council Law No. 10 and “Minor” Tribunals

       In addition to the trials conducted by the IMT and international panels at Tokyo, several
national courts were established by the Allies to try those accused of ―Nuremberg crimes.‖ The U.S.
conducted approximately 900 trials involving more than 3,000 defendants. About half the cases
were tried in Germany and its occupied territories; the remainder in Japan, Austria, Italy, the
Philippines, China, and the Pacific Islands.

        The trials of ―the less visible war criminals‖ were based on Control Council Law No. 10,
promulgated by the four major Allied Powers on December 20, 1945. It authorized the Allies to
arrest suspected war criminals and defined triable offenses for prosecution before courts other than
the IMT.

       Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against
Peace and Against Humanity, 3 Official Gazette Control Council for Germany 50-55 (1946),

                                                  34
established ―a uniform legal basis in Germany for the prosecution of war criminals and other similar
offenders, other than those dealt with by the International Military Tribunal. It authorized
prosecution for crimes against peace, war crimes, and crimes against humanity very similar to the
IMT. Law No. 10, however, defined crimes against humanity more broadly than the London
Agreement. Crimes against humanity were punished by the IMT only if they had a nexus to ―a war.‖
 Law No. 10 courts could convict defendants on the basis of crimes committed before the war. Like
the Nuremberg Charter, Law No. 10 states that the official position of a defendant does not free him
from criminal responsibility or entitle him to mitigation of punishment. See, e.g., United States v.
Ohlendorf, reprinted in 4 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY
TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (1949). Cf. United States v. Flick, reprinted in 6
TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL
COUNCIL LAW NO. 10 (1949). For the text of Control Council Law No. 10, see Selected
International Human Rights Instruments.


                                       NOTES AND QUESTIONS

1.       In 1946, the U.N. General Assembly adopted a resolution affirming ―the principles of international law
recognised by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal.‖ G.A. res. 95(I), 1
U.N. GAOR at 188, U.N. Doc. A/64/Add.1 (1946). Proscriptions detailed in the London Agreement have
broadly been recognized as customary international law, which is one of the sources of international law
identified by Article 38(b) and (c) of the Statute of the International Court of Justice. Cf. U.S. Army Field
Manual 27-10, The Law of Land Warfare § 498 (1956).

        One of the London Agreement‘s most important contributions was its affirmation of the principle of
individual responsibility, that individuals -- not only governments -- are obliged to comply with international
law. See, e.g., U.S. v. Goering, 6 F.R.D. 69, 110 (1946) (―individuals have international duties which
transcend the national obligations of obedience‖). In addition, the Agreement reaffirmed that national laws can
be subordinate to international law. Hence, as Article 6(c) of the IMT Charter commands, ―inhumane acts
committed against any civilian population‖ are crimes against humanity ―whether or not in violation of
domestic law of the country where perpetrated.‖

         In 1947, the U.N. General Assembly established the International Law Commission (ILC), charged
with tasks of developing and codifying international law. On November 21, 1947, the Assembly directed the
ILC to ―[f]ormulate the principles of international law recognized by the Charter of the Nürnberg Tribunal and
in the judgment of the Tribunal, and . . . [p]repare a draft code of offences against the peace and security of
mankind, indicating clearly the place to be accorded to the principles . . . .‖ G.A. res. 177(II), 2 U.N. GAOR at
111-12, U.N. Doc. A/519 (1947). In 1950, the ILC adopted a formulation of principles of international law
including acknowledgment, as suggested by Control Council Law No. 10, that crimes against humanity may be
committed during peacetime as well as during war. The Commission submitted those principles, together with
commentaries, to the General Assembly.                2 Y.B. INT‘L L. COMM‘N 374-78, U.N. Doc.
A/CN.4/SER.A/1950/Add.1 (1950).

        In 1954, the Commission submitted a Draft Code of Offences Against the Peace and Security of
Mankind to the Assembly. The Assembly did not accept the draft code largely because of its inability to agree
on what constituted an act of ―aggression,‖ which was criminalized by Article 2(1) of the Draft Code. Work
on the Draft Code was tabled, and the General Assembly did not define aggression until 1974. Definition of

                                                       35
Aggression, G.A. res. 3314 (XXIX) (Annex-Definition of Aggression), 29 U.N. GAOR Supp. (No. 31) at 142,
U.N. Doc. A/9631 (1974). In 1981, the Assembly asked the ILC to resume its work on a renamed Draft Code
of Crimes Against the Peace and Security of Mankind. After repeated redrafting, in 1996 the ILC adopted a
revised Draft Code of Crimes Against the Peace and Security of Mankind and submitted it to the General
Assembly for consideration. The Draft Code establishes five acts or categories of offences as crimes:
aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel, and
war crimes. See Report Int‘l L. Comm‘n, 51 U.N. GAOR Supp. (No. 10), U.N. Doc. A/51/10 (1996). See
Rosemary Rayfuse, The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at
the International Law Commission, 8 CRIM. L.F. 43 (1997). The crime of aggression is not defined in the
Draft Code.

2.       Although Nuremberg laid the foundations for prosecuting war criminals, war crimes trials in one form
or another date back at least as far as the Middle Ages. Following the U.S. Civil War, a commander of the
Confederate prisoner camp at Andersonville was convicted by a military commission of the crimes of
―maliciously, wilfully and traitorously‖ conspiring to ―injure the health and destroy the lives‖ of federal
soldiers being held as prisoners of war in violation of the laws of war. See Trial of Captain William Wirz, 8
AM. ST. TRIALS 666 ff (1918), reproduced in 1 THE LAW OF WAR 783 (Leon Frieman ed., 1972). In the early
twentieth century, the Allied Powers discussed and planned international war crimes trials following World
War I, but failed to create a working international tribunal. See Jules Deschênes, Toward International
Criminal Justice, 5 CRIM. L.F. 249, 249-53 (1994); ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN
INTERNATIONAL LAW 17-40 (1962).

3.       Several scholars have criticized the Nuremberg trials as having violated the maxim nullum crimen sine
lege, nulla poena sine lege (no punishment without a law). They emphasize that crimes against humanity had
been neither defined nor codified prior to Nuremberg; and they argue that the principle of individual
responsibility was absent from the law prior to Nuremberg. See, e.g., David Luban, Remarks at the American
Society of International Law Proceedings (Apr. 8-11, 1987), in 81 AM. SOC‘Y INT‘L L. PROC. 415, 423-424,
441.

         The IMT did not directly address the issue of ex post facto adjudication, but instead emphasized that
justice demanded prosecution. The judges, and many legal scholars, also argued that defendants must have
been aware of treaties ratified by Germany such as the Hague Convention on land warfare of 1907, which
established minimum standards for treatment of prisoners and prohibited attacks on undefended civilian
targets. See, e.g., Steven Fogelson, Note, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. Cal. L. Rev.
833, 866 (1990); Matthew Lippman, Nuremberg: Forty Years Later, 7 Conn. J. Int‘l L. 1 (1991); HERBERT
WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW: SELECTED ESSAYS 138, 155 (1961). Which
position do you find convincing?

4.      For further reading on the minor tribunals, see Maximilian Koessler, American War Crimes Trials in
Europe, 39 Geo. L.J. 18 (1950); TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS
UNDER CONTROL COUNCIL LAW NO. 10, NUERNBERG, OCTOBER 1946-APRIL 1949 (1949-1953); Note,
United States Navy War Crimes Trials (1945-1949), 5 Washburn L.J. 89 (1965).

5.      Investigation and prosecution of persons accused of committing crimes against humanity during World
War II did not end with trials in the 1950s. The Nuremberg principles have continued to guide lawyers and
judges during succeeding decades. See Lisa J. Del Pizzo, Note, Not Guilty--But Not Innocent: An Analysis of
the Acquittal of John Demjanjuk and its Impact on the Future of Nazi War Crimes Trials, 18 B.C. INT‘L &
COMP. L. REV. 137 (1995); Nicholas R. Doman, Aftermath of Nuremberg: the Trial of Klaus Barbie, 60 U.
COLO. L. REV. 449 (1989); Matthew Lippman, The Trial of Adolf Eichmann and the Protection of Universal
                                                     36
Human Rights Under International Law, 5 HOUS. J. INT‘L L. 1 (1982); Leila Sadat Wexler, The Interpretation
of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32
COLUM. J. TRANSNAT‘L L. 289 (1994).

6.      For more information on the Armenian genocide and attempts to punish those responsible see:

TANER AKCAM AND VAHAKN DADRIAN, THE PROTOCOLS OF THE ISTANBUL MILITARY TRIBUNALS ON THE
INVESTIGATION OF THE ARMENIAN GENOCIDE (forthcoming 2006).

TANER AKCAM, A SHAMEFUL ACT: ARMENIAN GENOCIDE AND THE QUESTION OF TURKISH RESPONSIBILITY
(2006).

TANER AKCAM, FROM EMPIRE TO REPUBLIC: TURKISH NATIONALISM AND THE ARMENIAN GENOCIDE
(2004).

Vahakn Dadrian, The Documentation of the World War I Armenian Massacres in the Proceedings of the
Turkish Military Tribunal, 4 INT‘L J. MIDDLE EAST STUD. 549, (Nov. 1991).


E.      AD HOC INTERNATIONAL TRIBUNALS FOR THE FORMER
        YUGOSLAVIA AND RWANDA

        For nearly fifty years after the signing of the London Agreement, Cold War divisions on the
Security Council prevented the international community from applying the Nuremberg principles
when confronted with a situation of widespread human rights abuse. During this period, most
perpetrators of serious human rights violations enjoyed impunity at the international level. The end
of the Cold War in 1989 opened new possibilities for concerted international responses to threats to
international peace and security. Beginning with the Security Council‘s approval in 1991 of U.S.-
led military intervention to end Iraqi occupation of Kuwait, the Council showed increasing
willingness to exercise its enforcement powers under Chapter VII of the U.N. Charter. In addition to
imposing economic sanctions, sending peace-keepers to unstable regions in various parts of the
world, and establishing a compensation commission for damages caused by the Iraqi invasion of
Kuwait, twice in the 1990s the Security Council responded to threats to international peace and
security by creating international criminal tribunals to try alleged perpetrators of serious human
rights violations.

        1.      The International Criminal Tribunal for the former Yugoslavia (ICTY)

        The territory formerly known as Yugoslavia has long been divided along ethnic lines.
Cultural and religious differences among Bosnians, Croats, Serbs, Slovenes, and other groups were
the result of numerous divisions of the region by successive empires including the Romans, Turks,
and Austro-Hungarians. Religious lines were also drawn when Christians converted to Islam during
Turkish rule. Further division emerged between Orthodox Christian Serbs and Catholic Croats.
Dusan Cotic, Introduction, 5 CRIM. L.F. 223, 225-26 (1994).



                                                   37
        The Kingdom of Serbs, Croats, and Slovenes was founded in 1918 and adopted the name
Yugoslavia in 1930. The dictatorship of Josip Broz Tito suppressed most ethnic divisions, but after
Tito‘s death in 1980 ultranationalist politicians exploited ethnic differences. Years of escalating
intolerance and hostility erupted into armed conflict when Croatia declared its independence from
Yugoslavia in 1991 and was recognized by Germany. Members of the Serb minority in Croatia
responded to the original Constitution of the new republic, which declared a state of only Croats, by
declaring the formation of the Serb Republic of Krajina. Croatians, from the outset, treated the Serbs
as rebels, terrorists, and aggressors against their new Croatian republic. The breakup also inspired
the formation of independent republics in Slovenia and Macedonia. Id. at 225-27. The most
devastating armed conflict occurred in Bosnia-Herzegovina. The magnitude of the crisis can be
attributed to the fact that it differs from the other regions in that it has no overwhelming majority of
one ethnic group. Prior to the conflict, Bosnia-Herzegovina was a ―community‖ comprising three
intermixed ethnicities: Muslims -- 43.7 percent; Serbs -- 31.4 percent; Croats -- 17.3 percent; with
the remainder of the population identifying themselves as Yugoslav or other ethnicity. The Bosnian
Serbs rejected a referendum to separate from Yugoslavia, and seized nearly 70% of Bosnian territory.
 On April 7, 1992, the Bosnian Serbs proclaimed the formation of an independent Bosnian Serb
Republic. The Bosnian Croats sought to preclude political domination by Bosnian Muslims and to
form ties to the Croatian republic. The large contingent of Bosnian Muslims, despite intermittent
alliances with the Bosnian Croats, struggled to gain a foothold in the power structure of the new
republic. Id. at 228-29.

        The armed conflict was brutal and resulted in massive violations of human rights and
international humanitarian law. A Special Rapporteur of the U.N. Commission on Human Rights
reported on rampant ethnic cleansing measures, including harassment, discrimination, beatings,
torture, summary executions, expulsion, and forced work. He emphasized that Croats, Muslims, and
Serbs had all been victims of widespread violations. See Tadeusz Mazowiecki, Report on the
Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. E/CN.4/1993/50
(1993); Tadeusz Mazowiecki, Report of the Special Rapporteur to the Commission on Human Rights
of 28 August 1992, U.N. Doc. E/CN.4/1992/S-1/9 (1992).

        On October 6, 1992, largely in response to rising media and public outcry over violence in
Bosnia, the Security Council adopted Resolution 780 -- establishing a Commission of Experts to
investigate and document ―grave breaches of the Geneva Conventions and other violations of
international humanitarian law‖ committed in the former Yugoslavia. S.C. res. 780, 47 U.N. SCOR
at 36, U.N. Doc. S/INF/48 (1992). Four months later, the Commission‘s initial report was submitted
to the Security Council. Letter Dated 9 February 1993 from the Secretary-General Addressed to the
President of the Security Council, U.N. Doc. S/25274 (1993) (transmitting ―Interim Report of the
Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)‖). It stated,
inter alia, that ―grave breaches and other violations of international humanitarian law have been
committed.‖ Id. at 12, ¶ 32. The report concluded that establishment of an ad hoc international
tribunal ―would be consistent with the direction of its work.‖ Id. at 20, ¶ 74.

        On February 22, 1993, the Security Council decided that ―an international criminal tribunal
shall be established for the prosecution of persons responsible for serious violations of international

                                                  38
humanitarian law committed in the territory of the former Yugoslavia since 1991.‖ S.C. res. 808, 48
U.N. SCOR at 1, U.N. Doc. S/RES/808 (1993). Pursuant to the resolution, the Secretary-General
submitted a report on May 3, 1993, analyzing and supporting the establishment of an international
tribunal. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), U.N. Doc. S/25704 and Add.1 (1993). The proposed statute of the International
Criminal Tribunal of Yugoslavia (ICTY) was presented in an annex to the Secretary-General‘s
report. Id. at 36.15

         On 25 May 1993, the Security Council unanimously adopted Resolution 827, which stated:

         The Security Council, . . .

                Having considered the report of the Secretary-General (S/25704 and Add.1)
         pursuant to paragraph 2 of resolution 808 (1993),

                 Expressing once again its grave alarm at continuing reports of widespread and
         flagrant violations of international humanitarian law occurring within the territory of
         the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina,
         including reports of mass killings, massive, organized and systematic detention and
         rape of women, and the continuance of the practice of ―ethnic cleansing‖, including
         for the acquisition and the holding of territory,

                Determining that this situation continues to constitute a threat to international
         peace and security, . . .

                  Determined to put an end to such crimes and to take effective measures to bring to
         justice the persons who are responsible for them,

                 Convinced that in the particular circumstances of the former Yugoslavia the
         establishment . . . of an international tribunal and the prosecution of persons responsible for
         serious violations of international humanitarian law would enable this aim to be achieved and
         would contribute to the restoration and maintenance of peace,


   15
      The Security Council previously had reviewed several draft statutes for establishing the tribunal for the former
Yugoslavia. See, e.g., Letter Dated 18 February 1993 from the Permanent Representative of Sweden to the United
Nations Addressed to the Secretary-General, U.N. Doc. S/25307 (1993) (transmitting ―Proposal for an International
War Crimes Tribunal for the Former Yugoslavia‖ by Rapporteur under the Conference on Security and Cooperation
in Europe (CSC)); Letter dated 16 February 1993 from the Permanent Representative of Italy to the United Nations
Addressed to the Secretary-General, U.N. Doc. S/25300 (1993) (transmitting a draft statute for a war crimes tribunal
for the former Yugoslavia); Letter dated 10 February 1993 from the Permanent Representative of France to the
United Nations Addressed to the Secretary-General, U.N. Doc. S/25266 (1993) (transmitting a report of the
Committee of French Jurists on the establishment of an international tribunal). These and other proposals for the
Tribunal‘s statute are reprinted in VIRGINIA MORRIS & MICHAEL SCHARF, AN INSIDER'S GUIDE TO THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: A DOCUMENTARY HISTORY AND ANALYSIS
(1995).
                                                         39
               Believing that the establishment of an international tribunal and the prosecution of
       persons responsible for the above-mentioned violations of international humanitarian law
       will contribute to ensuring that such violations are halted and effectively redressed,

               Acting under Chapter VII of the Charter of the United Nations,

               1.      Approves the report of the Secretary-General;

               2.      Decides hereby to establish an international tribunal for the sole
       purpose of prosecuting persons responsible for serious violations of international
       humanitarian law committed in the territory of the former Yugoslavia between 1
       January 1991 and a date to be determined by the Security Council upon the
       restoration of peace and to this end adopt the Statute of the International Tribunal
       annexed to the above-mentioned report[.]

S.C. res. 827, 48 U.N. SCOR at 2, U.N. Doc. S/RES/827 (1993). The judges of the Tribunal were
elected by the General Assembly on September 17, 1993, and the court first convened in the Hague
on November 17, 1993.

                                             *****

        Establishing the ICTY‘s competence ratione materiae (subject matter jurisdiction) was one
of the most complicated matters before the Security Council. Article 1 of the Statute pronounces that
the ICTY ―shall have the power to prosecute persons responsible for serious violations of
international humanitarian law . . . .‖ Report of the Secretary-General Pursuant to Paragraph 2 of
Security Council Resolution 808 (1993), Annex: Statute of the International Criminal Tribunal, Art.
1, U.N. Doc. S/25704 and Add.1 (1993). The Secretary-General elaborated on the Council‘s
approach:

       [T]he application of the principle of nullum crimen sine lege requires that the
       international tribunal should apply rules of international humanitarian law which are
       beyond any doubt part of customary law so that the problem of adherence of some
       but not all States to specific conventions does not arise. . . .

       The part of conventional international humanitarian law which has beyond doubt
       become part of international customary law is the law applicable in armed conflict as
       embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War
       Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on
       Land and the Regulations annexed thereto of 18 October 1907; the Convention on the
       Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the
       Charter of the International Military Tribunal of 8 August 1945.

Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808
(1993), at ¶¶ 34-35, U.N. Doc. S/25704 & Add.1 (1993). For discussion of nullum crimen sine lege

                                                 40
as related to the Nuremberg trials, see supra at 36.

        Articles 2-5 of the Statute detail the categories of crimes over which the ICTY has
jurisdiction: grave breaches of the Geneva Conventions; violations of the laws or customs of war;
genocide; and crimes against humanity. See Selected International Human Rights Instruments at XX.

       Persons accused of planning, ordering, or committing the above crimes will be held
individually responsible for their acts. Id. Art. 7(1). In addition, persons charged will not be relieved
of criminal responsibility for acting pursuant to superior orders, but such a finding may be
considered in mitigation of punishment if the Tribunal determines that justice so requires. Id. Art.
7(4). Penalties are limited to imprisonment, thus excluding the death penalty. Id. Art. 24(1). Unlike
the Nuremberg trials, no defendant may be tried in absentia. Id. Art. 21(4)(d).

                                                *****

DIANE F. ORENTLICHER, AMERICAN SOCIETY OF INTERNATIONAL LAW NEWSLETTER,
YUGOSLAVIA WAR CRIMES TRIBUNAL 1-2 (ASIL Focus Special Insert to the June-August 1993
issue):

        Legal Basis of Tribunal

        The first substantial issue raised by Resolution 808 was whether the [ICTY] should be
established by treaty or, instead, through a Security Council resolution. Following the
recommendation of the Secretary-General, the Security Council established the [ICTY] as an
enforcement measure under Chapter VII of the UN Charter. As such, the decision had to be (and
was) predicated on a Security Council determination that the situation giving rise to its action
constituted a threat to the peace, breach of the peace, or an act of aggression.

        Although the Council had previously determined that the situation in the former Yugoslavia
constitutes a threat to international peace and security, its decision to establish a tribunal under
Chapter VII was not without controversy. Some States, including China, feared that this represented
an unwarranted intrusion on sovereignty. Others, such as Brazil, suggested that the establishment of
an international tribunal might exceed the Security Council‘s competence, and took pains to insist
that Resolution 827 and the Statute for the [ICTY] ―are . . . not meant to establish new norms or
precedents of international law,‖ a legislative act thought to be beyond the Council‘s competence.
Instead, the [ICTY] would only apply ―existing norms of international humanitarian law.‖ . . .

         The Secretary-General‘s report to the Security Council makes clear that, whatever theoretical
issues the Security Council‘s action might raise, the decision was driven by pragmatic concerns.
Noting that an international tribunal would ordinarily be established by treaty, the Secretary-General
observed that this approach would require ―considerable time,‖ and ―there could be no guarantee that
ratifications will be received from those States which should be parties to the treaty if it is to be truly
effective.‖ The most significant consequence of the Security Council‘s approach will likewise be
practical: Member States of the United Nations are legally required to comply with the decision

                                                    41
establishing the [ICTY]. (This, of course, is a key reason why some countries thought establishment
of the [ICTY] by any route other than treaty an undue infringement of sovereignty.) This obligation
may prove to be critical in addressing one of the most daunting challenges that the prosecution will
face -- obtaining jurisdiction over indicted suspects. Among the obligations that the [ICTY] Statute
imposes on Member States is a duty to comply with any orders of the Tribunal relating to the arrest
or detention of persons. That obligation may help assure, at the very least, that suspected war
criminals effectively become prisoners in their own countries, lest they risk arrest abroad. In this
respect, the Security Council‘s action may help mitigate the risk that the [ICTY] will appear
ineffectual by virtue of its inability to obtain personal jurisdiction over key defendants.

                                                   *****

Results from the ICTY

        The ICTY has proved to be a stepping stone for international criminal justice. Since its
inception, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and
International Criminal Court have all been established. The ICTY has effectively prosecuted dozens
of war criminals and in subsequent international tribunals, its model has been emulated and adapted.
The tribunal has charged 161 defendants with serious violations of international humanitarian law:
forty-eight are currently in custody at the UN ICTY detention unit, seventeen are on provisional
release, six are at large, one is arrested and awaiting transfer, eight had their cases transferred to a
state for trial, nineteen are serving their sentences, seventeen have served their sentences, eight were
either acquitted or found not guilty, and thirty-seven had their indictments withdrawn or were
reported deceased.16

        The ICTY has also had shortcomings. First and foremost, the ICTY failed to convict former
Yugoslav and Serbian President Slobodan Milosevic for genocide in Bosnia and war crimes in
Kosovo and Croatia. Milosevic was turned over reluctantly by the Serbian government to the ICTY
only after European and American threats of withdrawing economic aid to Serbia. In March 2006,
after more than four years of trial and trial delays and within weeks of the conclusion of his trial,
Milosevic was found dead of a heart attack in his jail cell.

       Additionally, former Bosnian President Radovan Karadzic and the Bosnian top military
commander Ratko Mladic are sill at large. Human Rights Watch blames the lack of effort displayed
by both the local Bosnian Serb police and NATO forces. It calls the unwillingness to cooperate of
Bosnian Serb authorities ―sadly unsurprising.‖ Human Rights Watch, “Safe Areas” for Srebrenica‟s
Most Wanted: A Decade of Failure to Apprehend Karadzic and Mladic, June 29, 2005.17 The local
Serb population, with many viewing Karadzic and Mladic as heroes, has often failed to cooperate


16 ICTY, Key Figures of ICTY Cases, May 23, 2006, available at http://www.un.org/icty/glance-e/index.htm. As of
May 2006, 161 individuals had also been charged with war crimes. Proceedings against ninety-four had been
concluded. Id.
17Available at http://hrw.org/backgrounder/eca/srebrenica0605/srebrenica0605.pdf.


                                                       42
with attempts to find the two men as well.

        Critics of the ICTY also note that its establishment did not prevent later atrocities in the
former Yugoslavia, for example, during 1995 in Srebrenica or during 1998 in Kosovo. Its
supporters, however, argue that it has developed a very significant jurisprudence of international
humanitarian law, including decisions relating to ―command responsibility‖; the permissibility of
defenses to the crimes based on reprisal and duress; the use of subpoenas for compelling journalists
to reveal information; adequate notice; and the rights of suspects to counsel, cross-examination of
witnesses, and the treatment of victims and witnesses. Most importantly, the ICTY is the first
functioning international criminal tribunal since Nuremberg and Tokyo that provides a forum for
victims, creates a historical record of the events in the former Yugoslavia, and has forced some
perpetrators out of power. One controversial procedural issue has been the use of plea bargains. At
the ICTY‘s inception, plea bargaining was prohibited due to the nature of the crimes committed.
Due to the limited resources and time of the judges, the uncertainty of conviction, and the length of
the trials, however, plea bargains have been used with increasing frequency. The use of plea
bargains has been criticized for altering the historical record. For example, Biljana Plavsic, who
served as deputy under Radovan Karadzic and later as the president of the Republica Srpska, was
charged with genocide, but had the charged reduced to persecution in exchange for her guilty plea.
She did not, nor was she required to, cooperate with the Tribunal in any other way. For further
reading on guilty pleas, see Nancy Armoury Combs, Procuring Guilty Pleas for International
Crimes: The Limited Influence of Sentence Discounts, 59 VANDERBILT L. REV. 69 (2006).

        While the tribunal hopes to complete its work by 2008, serious obstacles remain including
lack of funding and a fairly large number of remaining cases.

                                             *****

       2.      The International Criminal Tribunal for Rwanda (ICTR)

        The International Criminal Tribunal for Rwanda (ICTR), like that for the former Yugoslavia,
was an international response to armed conflict between rival ethnic groups. Rwanda‘s population at
the beginning of 1994 was approximately 7,000,000, composed of 80% Hutu and 20% Tutsi.
Though the two groups share their language and most cultural and religious traditions, they have
been sharply divided, particularly across economic and tribal lines. German colonial authorities
created, and Belgian administrators maintained, the division by establishing the Tutsi as landowners
and herders over Hutu peasant farmers. Helen Signy, Rwanda: It Was Planned This Way - News
Review, SYDNEY MORNING HERALD, June 4, 1994. (note dispute on this history, much debate
generated on the extent to which the ethnic divisions were as deeply pronounced as western
narratives suggest)

        In 1959, three years prior to Rwandan independence, the Hutu majority ousted Tutsi leaders
in a bloody rebellion. Tens of thousands of Tutsi fled to neighboring nations, the largest number to
Uganda. In response to discrimination by the Hutu government of President Juvenal Habyarimana,
exiled Tutsi refugees formed the Rwandan Patriotic Front (RPF), based in Uganda, and invaded

                                                 43
Rwanda in 1990. The two sides engaged in peace talks and then signed an accord in August 1993
providing for power sharing and the return of Tutsi refugees. Id.

        On April 6, 1994, however, massive violence followed the mysterious crash of a plane
carrying President Habyarimana and Burundian President Cyprien Ntaryamira to the Rwandan
capital, Kigali. Most observers believe that ―Hutu Power‖ extremists were responsible for the two
deaths, and soon the extremists organized an effort to slaughter the opponents of Hutu dominance.
Mass killings by the militia were directed at the whole Tutsi population and also at moderate Hutus
opposed to the government. Human rights investigators believe that government extremists had been
promoting anti-Tutsi paranoia and planning mass murders for almost two years. In the first two
months of the conflict, approximately 500,000 people were killed and over 2,000,000 displaced to
neighboring countries. Id. Unlike the government of Yugoslavia, the Tutsi-dominated government
of Rwanda, which came to power after the mass killings, actively supported -- at least initially -- the
establishment of an international tribunal for those responsible for genocide and other crimes in
Rwanda. Rwanda was a member of the Security Council in 1994 and its permanent representative to
the U.N. was among the first to propose the creation of a tribunal for Rwanda. There it also true that
the existence of the ICTY made it more difficult for western states to eschew their responsibility for
the Genocide that had occurred, particularly given the inaction by western states which might have
ameliorated the excesses, See Payam Akhavan, The International Criminal Tribunal for Rwanda:
The Politics and Pragmatics of Punishment, 90 A.J.I.L. 501, 504 (1996).

        On July 1, 1994, the Security Council adopted Resolution 935, which requested the
Secretary-General to establish ―an impartial Commission of Experts to examine and analyse
information submitted pursuant to the present resolution, together with such further information as
the Commission of Experts may obtain through its own investigations or the efforts of other persons
or bodies . . . with a view to providing the Secretary-General with its conclusions on the evidence of
grave violations of international humanitarian law committed in the territory of Rwanda, including
the evidence of possible acts of genocide.‖ S.C. res. 935, 49 U.N. SCOR at 2, U.N. Doc. S/RES/935
(1994). Three months later the Commission of Experts submitted an interim report which
concluded, inter alia, that both sides to the conflict in Rwanda had committed serious breaches of
international humanitarian law as well as crimes against humanity, and that acts of genocide against
Tutsi had been ―perpetrated in a concerted, planned, systematic and methodical way.‖ See Letter
Dated 1 October 1994 from the Secretary-General Addressed to the President of the Security
Council, U.N. Doc. S/1994/1125 at 30, ¶¶ 146-48 (1994) (transmitting ―Preliminary report of the
Independent Commission of Experts established in accordance with Security Council resolution 935
(1994)‖). The Commission recommended that the Security Council ―take all necessary and effective
action to ensure that the individuals responsible for the serious violations of human rights in Rwanda
during the armed conflict triggered on 6 April 1994 are brought to justice before an independent and
impartial international criminal tribunal.‖ Id. at 31, ¶ 150. To this end, the Commission
recommended that the Security Council amend the Statute of the International Criminal Tribunal for
the former Yugoslavia to extend its jurisdiction to cover crimes committed in Rwanda beginning on
April 6, 1994. Id. at 31, ¶ 152.

       On November 8, 1994, the Security Council adopted Resolution 955, establishing in Arusha,

                                                  44
Tanzania, a second ad hoc international tribunal ―for the sole purpose of prosecuting 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, between 1 January 1994 and 31 December 1994.‖
S.C. res. 955, 49 U.N. SCOR at 1, U.N. Doc. S/RES/955 (1994). Resolution 955 was adopted over
the opposition of the Rwandan government, which had envisioned the creation of a criminal
jurisdiction under its control that would benefit from international judicial assistance. See Payam
Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of
Punishment, 90 A.J.I.L. 501, 505 (1996).

        The ICTR Statute borrows heavily from the ICTY Statute. It establishes that both the
prosecutor and the Appeals Chamber of the ICTY shall also serve the ICTR, to ensure consistency in
the legal approach of the two tribunals as well as an economical use of resources. Id. The ratione
materiae of the ICTR differs from that of the Yugoslavia tribunal, however. While both institutions
exercise jurisdiction over acts of genocide and crimes against humanity, the jurisdiction of the ICTR
with respect to violations of international humanitarian law is limited to violations of international
standards governing internal armed conflict. This aspect of the ICTR‘s subject matter jurisdiction is
set out in Article 4 of the ICTR Statute:

       Article 4
       Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II

              The International Tribunal for Rwanda shall have the power to prosecute persons
       committing or ordering to be committed serious violations of Article 3 common to the
       Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional
       Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:

               a) Violence to life, health and physical or mental well-being of persons, in particular
       murder as well as cruel treatment such as torture, mutilation or any form of corporal
       punishment;
               b) Collective punishments;
               c) Taking of hostages;
               d) Acts of terrorism;
               e) Outrages upon personal dignity, in particular humiliating and degrading treatment,
       rape, enforced prostitution and any form of indecent assault;
               f) Pillage;
               g) The passing of sentences and the carrying out of executions without previous
       judgment pronounced by a regularly constituted court, affording all the judicial guarantees
       which are recognised as indispensable by civilised peoples;
               h) Threats to commit any of the foregoing acts.

S.C. res. 955, 49 U.N. SCOR at 1, U.N. Doc. S/RES/955 (1994).

       The ICTR Statute also departs from the ICTY Statute in its definition of crimes against

                                                 45
humanity. First, the ICTR Statute does not require proof of the existence of an armed conflict. Id.
Cf. Control Council Law No. 10, reprinted in Selected International Human Rights Instruments at
299. The International Military Tribunal (IMT) had interpreted the Nuremberg Charter‘s definition
of crimes against humanity to require a nexus with armed conflict, see 22 TRIAL OF THE MAJOR WAR
CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 498 (1948). It is now well-established,
however, that crimes against humanity can be committed in the absence of armed conflict. See The
Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, at 73, ¶ 141 (1995). See also Art. 7 of the
Rome Statute of the International Criminal Court, discussed infra at 73-74 Second, the ICTR Statute
requires that crimes against humanity be committed ―on national, political, ethnic, racial or religious
grounds.‖ S.C. res. 955, 49 U.N. SCOR at 1, U.N. Doc. S/RES/955 (1994). Neither the Nuremberg
Charter, Control Council Law No. 10, nor the ICTY Statute require a persecutory intent for crimes
against humanity.

         The ICTR handed down its first indictments in December 1995. None of the eight indicted suspects
was initially taken into custody, however. In February 1996, the Tribunal issued its first indictments against
persons already detained. Georges Rutaganda, a former vice president of the Hutu militia group Interahamwe,
was accused of playing a significant role in planning and carrying out massacres in Kigali and Nyanza. Jean
Paul Akayesu was charged with encouraging the murder of a Tutsi teacher, and was suspected of having
ordered the torture and murders of several other Tutsi. In March 1996, the government of Cameroon arrested
Theoneste Bagosora, alleged to be one of the prime architects of the 1994 massacre. He was also wanted by
Belgian authorities in connection with murders of ten Belgian peacekeepers in Rwanda.18

         In February 1997, during the course of the first trial before the ICTR, the United Nations Inspector
General issued a report charging that the Tribunal‘s slow progress was due to poor management,
underqualified staff, and financial abuses. According to the report, the Tribunal was also hindered by weak
support from U.N. headquarters in New York. The inspector concluded that without substantial changes in
Tribunal operation, Rwandans ―will be right to suspect that justice delayed is justice denied.‖ See Paul Lewis,
U.N. Report Comes Down Hard on Rwandan Genocide Tribunal, N.Y. TIMES, February 13, 1997, at A13.
During this period relations between the ICTR and the government of Rwanda also deteriorated. In early 1996,
Rwandan soldiers stopped a car bearing ICTR markings and subjected three investigators to beatings. During a
visit to Kigali in May 1997, Chief Prosecutor Louise Arbour was met with angry crowds and street
demonstrations. See Lawyers Committee for Human Rights, Prosecuting Genocide in Rwanda: A Lawyers
Committee report on the ICTR and National Trials (July 1997).

        Conditions began to improve in 1998. U.N. Secretary-General Kofi Annan responded to the Inspector
General‘s report by replacing the ICTR‘s chief administrator and deputy prosecutor. The new appointees
immediately instituted a broad range of new policies and procedures. In April 1998, the Security Council
voted unanimously to establish a third trial chamber at the ICTR, in an effort to speed up the trials. See
Security Council expands UN court on Rwandan genocide, AFP, April 30, 1998, available in LEXIS,
Newsgroup file.


                                        NOTES AND QUESTIONS

1.       Orentlicher emphasizes that the Security Council‘s decision to establish the ICTY by resolution under


18 ICTR case materials are available at http://www.ictr.org.
                                                         46
Chapter VII was motivated by pragmatic concerns. Does she sufficiently consider the legality of the Council‘s
decision? Does Chapter VII truly grant the Council authority to establish the ICTY? Cf. Article 29 of the U.N.
Charter, which states that the Council ―may establish such subsidiary organs as it deems necessary for the
performance of its functions.‖ For discussion of the legal basis for the ICTY‘s establishment, see Herman von
Hebel, An International Tribunal for the Former Yugoslavia: An Act of Powerlessness or a New Challenge
for the International Community, 11 NETH. Q. HUM. RTS. 437, 442-47 (1993); see also Claire Palley, Sub-
Commission on Prevention of Discrimination and Protection of Minorities, Implications of Humanitarian
Activities for the Enjoyment of Human Rights, at 6, ¶ 12, U.N. Doc. E/CN.4/Sub.2/1994/39 (1994)
(questioning the Council‘s authority to create the Tribunal).

2.       Dusan Tadic, the first defendant to appear before the ICTY, challenged its jurisdiction. His attorneys
argued that the Tribunal was improperly established and violates the sovereignty of states. The Tribunal
rejected that defense as without merit on August 10, 1995. On appeal, the Tribunal again ruled that it had
jurisdiction. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72 (1995), available at 35 I.L.M. 32
(1996). For additional discussion of Dusko Tadic, see infra at 54

3.      In establishing the ICTY, the Security Council had to decide what substantive law the Tribunal would
apply: the law of the former Yugoslavia or international law. The Security Council selected the international
law approach. Arguments for the adoption of international law included the fact the former Yugoslavia was
party to several instruments of international human rights and humanitarian law, including the Genocide
Convention, the Covenant on Civil and Political Rights, the 1949 Geneva Conventions, and the 1977
Additional Protocols. Arguments against the adopting international law centered around the idea that
provisions of the Penal Code of the former Yugoslavia were still in force in the new republics. See Herman
von Hebel, An International Tribunal for the Former Yugoslavia: An Act of Powerlessness or a New
Challenge for the International Community, 11 NETH. Q. HUM. RTS. 437, 447 (1993); Roman A. Kolodkin,
An Ad Hoc International Tribunal for the Prosecution of Serious Violations of International Humanitarian
Law in the Former Yugoslavia, 5 CRIM. L.F. 381, 395-99 (1994).

4.       In his report of 1993, the Secretary-General indicated that the principle of nullum crimen sine lege
demanded that the subject matter jurisdiction of the ICTY be limited to violations of international humanitarian
law which were recognized under customary international law as it existed at that time. According to the
Secretary-General, Article 3 common to the Geneva Conventions of 1949 and the Protocols to the Convention
adopted in 1977 had not ―beyond doubt become part of international customary law.‖ Report of the Secretary-
General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), at ¶¶ 35, U.N. Doc. S/25704 &
Add.1 (1993). One year later, however, violations of common article 3 were included in the subject matter
jurisdiction of the ICTR. What factors might account for this new approach? After the Secretary-General
changed his position, the Appeals Chamber of the ICTY held in the jurisdiction decision in The Prosecutor v.
Dusko Tadic, Case No. IT-94-1-AR72 (1995), available at 35 I.L.M. 32 (1996), that a criminal prosecution
could be founded upon conduct arising from the mixed international and internal conflict taking place in the
former Yugoslavia.

5.        Articles 20 and 21 of the ICTY Statute and Articles 19 and 20 of the ICTR Statute provide several
procedural protections. Important rules, absent from the Nuremberg and Tokyo trials, include prohibition of
trials in absentia and the death penalty, and provisions for a right to appeal. Amnesty International,
acknowledging the importance of these provisions, called for further protections of the accused during the pre-
trial stage. See Theodor Meron, Editorial Comment: War Crimes in Yugoslavia and the Development of
International Law, 88 AM. J. INT‘L L. 78, 83-84 (1994); Amnesty International, Moving Forward to Set Up
the War Crimes Tribunal for the Former Yugoslavia, AI Index: EUR 48/03/93 (1993).

                                                      47
        3.      Efficacy of the ad hoc Tribunals

Human Rights Watch, Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina,
and Serbia and Montenegro, Oct. 14, 2004, at 2–4.

        The armed conflicts in the former Yugoslavia during the 1990s were characterized by
widespread violations of human rights and humanitarian law. The International Criminal Tribunal for
the former Yugoslavia (ICTY) will have adjudicated only a relatively small number of cases
involving the most serious crimes by the time it ceases operating. All other war crimes cases—
whether initiated domestically or referred back from the ICTY—will have to be tried by national
courts in the states of the former Yugoslavia. . . .

      [T]he ordinary national courts of [Bosnia and Herzegovina], Croatia, and Serbia and
Montenegro are not currently equipped to hear war crimes cases—which are often politically and
emotionally charged, as well as legally complex—in a fair manner. . . .

        The experience of Croatia illustrates many of the concerns about the shortcomings of trials to
date. Patterns observed by Human Rights Watch in war crimes trials in Croatia include: (i) a hugely
disproportionate number of cases being brought against the ethnic Serb minority, some on far weaker
charges than cases against ethnic Croats; (ii) the use of group indictments that fail to specify an
individual defendant‘s role in the commission of the alleged crime; (iii) use of in absentia trials; and
(iv) convictions of ethnic Serbs where the evidence did not support the charges. . . .

        Investigative mechanisms remain problematic. While prosecutors are often forced to rely
upon police units to conduct investigations, . . . police in the region are often unwilling to investigate
war crimes when those implicated are other police officers or individuals holding prominent
positions in the political and economic spheres. . . . [Other problems include] inadequate cooperation
in war crimes prosecution between the states in the region [as well as legal issues such as] the
admissibility of witness statements taken by the ICTY [and to what extent] the doctrine of command
responsibility is recognized in the national law of each country. . . .

        [The] legacy [of the ICTY] can be measured by the extent to which local courts in the former
Yugoslavia have the ability to competently and fairly adjudicate war crimes cases. . . . [While]
general reforms are ongoing, it is critical that the international community assist the national court
systems to ensure that domestic war crimes trials in the former Yugoslavia meet basic,
internationally recognized fair trial standards. These matters require urgent attention. Because the
ICTY stands ready to refer cases to the courts in the former Yugoslavia, and potentially many more
non-referred cases remain to be tried in these courts, the functioning of these courts cannot be
ignored.

                                                *****


                                                   48
Organization of African Unity, The International Panel of Eminent Personalities to Investigate
the 1994 Genocide in Rwanda and the Surrounding Events, Rwanda: The Preventable
Genocide (2000) (citations omitted):

[Ed. note. In 1998 the Organization of African Unity created a body of experts ―to investigate the
1994 genocide in Rwanda and the surrounding events in the Great Lakes Region . . . as part of efforts
aimed at averting and preventing further wide-scale conflicts in the . . . Region.‖ Report of the
Secretary General on the Establishment of an International Panel of Eminent Personalities to
Investigate the Genocide in Rwanda And The Surrounding Events. CM12048 (LXVII). The panel
was charged with the task of ―establish[ing] the facts about how such a grievous crime was
conceived, planned, and executed, look[ing] at the failure to enforce the [United Nations] Genocide
Convention in Rwanda and in the Great Lakes Region, and recommend[ing] measures aimed at
redressing the consequences of the genocide and at preventing any possible recurrence of such a
crime.‖ Id. Within this mandate the panel evaluated the efficacy of the ICTR and its potential
contribution to reconciliation in Rwanda.]

The Arusha tribunal

        [Immediately after the Security Council approved resolution 955 establishing the ICTR,]
[t]he question . . . arose . . . whether the new body would be given the resources to do its job
seriously. How exactly would [the] ICTR function, since the chief prosecutor of the original
tribunal[, the ICTY,] . . . was now named chief prosecutor of the second, even though one was based
in northern Europe and the other in east-central Africa[?]

        Nor did Africa mean Kigali or elsewhere within Rwanda, as the Rwandan government
believed was essential for the trials to become part of the public process of post-genocide recovery. .
. . Rwandan authorities envisioned the leading genocidaires being tried in Rwandan courts before
the Rwandan people according to Rwandan law. That way, the survivors and other Tutsi might be
prepared to forgive ordinary people who had participated in one way or another. Instead, the UN
decided to locate the new court in Arusha, the town in Tanzania that gave its name to the 1993
accords between the [Rwandan Patriotic Front] and the Habyarimana government. Yet Arusha was
either an expensive flight or an extremely long and uncomfortable car ride from Rwanda. Bringing
witnesses from Rwanda was complicated. And inevitably, the proceedings seemed very distant from
Rwanda and the Rwandan public.

        The decision was deeply resented by the new government. But under the circumstances, it
was perhaps hardly surprising that the UN had doubts about Rwanda‘s capacity to mete out proper
justice or uphold international standards. There was also a sense around the UN . . . that the
international community had failed Rwanda in its time of greatest need. A number of observers
believed that the ICTR was one way of rectifying this wrong. The tribunal would be seen as the
international community‘s court, as the international community taking responsibility for a heinous
crime against humanity, even if it meant further alienating the RPF from the UN.

       Finally, and more substantively, some at the UN felt the tribunal could not be entrusted to

                                                  49
Rwanda so long as the death penalty was part of Rwandan law, while life imprisonment was the
maximum penalty that [the] ICTR could hand down. But this issue was not as clear-cut as it seems,
especially from the Rwandan perspective. Had not the Nazis at the historic Nuremberg war crimes
trials and the Japanese war criminals in Tokyo faced the death penalty after World War Two[?]19
They had committed either the crimes that prompted the Genocide Convention to be written, or at the
very least crimes against humanity. Were the crimes of Hutu Power of a lesser order of magnitude
than these? . . .

        The preamble to the ICTR statute states that ―in the particular circumstances of Rwanda, the
prosecution of persons responsible for serious violations of international humanitarian law would . . .
contribute to the process of national reconciliation and to the restoration and maintenance of peace.‖
. . . But unlike the tribunal for the former Yugoslavia, the Rwandan court was limited to crimes
committed during 1994 only. This constraint hampers the prosecution of those who planned the
genocide before 1994–Hutu and their allies–and those who have committed the extensive crimes
against humanity and other gross violations of human rights in 1995 or after, whether Hutu or Tutsi.
While this unfortunate limitation at least seems to be even-handed, in practice it is seen by wary
Hutu as biasing the tribunal in favour of the government side, a perception reinforced by the
exclusive concentration of the tribunal on crimes committed by Hutu during the genocide. Some
Hutu do not see justice being done, a major barrier to the reconciliation the government covets and
the country so desperately needs.

        The] ICTR‘s resources were a serious issue as well. Early in 1998, the deputy prosecutor
pointed out that the court was functioning with about 50 investigators while 2,000 had been available
to prepare cases for the Nuremberg trials. The same year, Amnesty International scrutinized the
tribunal‘s work based on ―international standards and best practice.‖ While acknowledging the
―tremendous obstacles [it faced] in creating a whole judicial process from the ground up,‖ three
years after it began they found that, ―[t]he little experience in running a court has led to inefficiency
and confusion, unacceptable delays, and in at least one case a dangerous breach of confidential
information.‖ Similarly, David Scheffer, the US Ambassador-at-Large for War Crimes Issues,
understood that, ―[t]he needlessly slow trial work . . . has tarnished the credibility of the tribunal and
created significant difficulties for the Rwandan government as it seeks to promote reconciliation and
dispose of its own colossal caseload of approximately 130,000 suspects.‖

        Nor did . . . ICTR prosecutors develop a clear strategy for [their] work. Early on, foreign
governments handed over to [the ICTR] suspects they had arrested but did not want to prosecute.
These became the focus of the tribunal. Instead of any coherent attempt to put on trial the political
and military masterminds of the genocide, the prosecutors found themselves putting together cases of
local importance that happened to have been surrendered to them. But the tribunal also faced
unexpected resistance as well from African states in handing over important suspects under their
jurisdictions. Both these problems began to be ameliorated in 1997, when from the one side, the
OAU pressed its members to co-operate with the tribunal, while prosecutors finally decided to seek
out high-ranking officials to try.

19
     See supra, at 33-34.
                                                   50
        The tiny number of suspects that the court has processed has also long been a source of
concern and even distress. Contrary to the expectations of the Rwandan government, from the start
the tribunal was not really expected to try more than some 20 suspects a year; after all, only 24
defendants had been named at the Nuremberg trials. [The] ICTR[‘s] formal proceedings began only
in November 1995; its first indictment against eight unnamed individuals implicated in massacres
was signed a month later. Four years later, only 28 indictments had been issued and only seven
accused had been convicted. There were at the end of 1999, 38 individuals in custody. In August
1999, in an effort to accelerate the frustrating process, the prosecutors recommended that the tribunal
hear cases of various accused together, in groups organized according to their roles (military leaders
for example) or the particular massacre they have allegedly participated in; so far, the court has
agreed to hear military leaders together. . . .

       While the Arusha tribunal has provided some grounds for disappointment, its real
contributions should not be minimized. First, its very first conviction of a local burgomaster,
Jean-Paul Akayesu, was for genocide, making it the first international tribunal to hand down a
conviction for this ultimate of crimes . . .. The magistrates rejected the defense argument that
Akayesu must be judged in the context of a brutal war between two armies. . . .

        Some human rights authorities consider this unprecedented verdict a major turning point in
international law, a clear signal that the international community will enforce its conventions against
genocide and war crimes. Moreover, . . . Akayesu was also found guilty of rape. This was the first
time that rape as a systematic attack on women or as part of a larger plan had been officially
recognized in international law as a crime against humanity; this too was a major victory for its long-
time advocates.

        . . . In these important, precedent-setting ways, it must be recognised that the ICTR is making
history. It is also important to realise that some of those who have been and are being tried in Arusha
were among the leaders of the genocide, while The Hague tribunal has largely dealt with Balkan
suspects of minor status. The Rwandans, for example, include Jean Kambanda, Prime Minister of
the government during the genocide, and Colonel Theoneste Bagosora, whom many regard as the
central figure in the conspiracy. . . .

        . . . It is also important to view the tribunal from the perspective of international criminal law
and international human rights law. Seven convictions and 36 others being held in pre-trial detention
seem a tiny total. But it also reflects the complexity of the work and the determination to operate
within accepted international standards of criminal justice. . . .

         Perhaps the most useful perspective is the one offered in a recent analysis of post-genocide
justice in Rwanda: ―Ten years ago it was hard to imagine that an international institution would be
able to contribute in such a manner to the fight against impunity for the worst human rights
violations. The ICTR experience will also be invaluable for the future International Criminal Court.‖

                                          *****
Aryeh Neier, Rethinking Truth Justice, and Guilt after Bosnia and Rwanda, in HUMAN RIGHTS

                                                   51
IN POLITICAL TRANSITIONS:       GETTYSBURG TO BOSNIA (Carla Hesse & Robert Post eds., 1999)
(citations omitted):

        The establishment of a truth commission for Bosnia would have been a meaningless gesture.
In the Bosnian case, the most egregious crimes did not take place in a manner that was designed to
conceal or deceive. On the contrary, those committing these crimes were blatant in their conduct and
forthright in propounding what they considered a principled rationale: that persons of different
ethnic backgrounds may not live together in the same country. In furtherance of this abhorrent
principle, they committed crimes against humanity in full view of the international community. . . .
The facts of Bosnia were thus never in dispute. . . . Only a process to secure justice seemed
appropriate as a means to secure accountability in such circumstances, both because it would have
been pointless to focus on truth and because the scale of the crimes committed in Bosnia seemed to
require something more. . . .

       [T]he world was witness to an even more blatant crime . . . in Rwanda . . . . Far from
concealing their crimes, the killers broadcast appeals for the slaughter over the radio. In the
circumstances of Rwanda, no one could imagine that a truth process would make an important
contribution or that the results of such a process could be commensurate to the criminality that took
place. Only an effort to do justice by bringing the killers to trial and imposing judicial punishments
on them seemed appropriate. . . .

        . . . Necessarily, the overwhelming majority of those who took part in . . . in crimes against
humanity . . . cannot be prosecuted. It is inconceivable that the international community would
marshal the resources or that the states where those persons reside would demonstrate the will to
bring to account so large a number of criminals. If only on practical grounds, prosecutions must be
limited to those whose guilt is greatest: that is, those with the highest level of responsibility for the
most egregious crimes. . . . Yet the fact that others will go free who conspired to commit such
crimes makes them innocent only in the formal sense that they have not been proven guilty in a court
of law.

         Given the relatively small number of criminals who may be brought to justice for crimes
against humanity in ex-Yugoslavia or . . . Rwanda is it possible to prevent the victims and their
ethnic kin from ascribing collective guilt to their persecutors and the ethnic group from which the
latter stem? Will the prosecution of political leaders, military commanders, and a few others who
committed barbarous crimes suffice? The victims and their families know only too well that many
others also contributed to their suffering through criminal acts. If matters develop so that they once
again live together, they are likely to see on the street those they know to be murderers. How is it
possible that a handful of trials could establish individual guilt and break the cycle of its collective
attribution?

        To the extent individualization is possible, it is because the guilt of some criminals is greater
than that of others. Though many took part in crimes, some planned them and directed them.
Accordingly, their guilt is greater. Moreover, if their planning and directing involved criminality on
a large scale, they are yet more culpable. Criminal trials of even a few archcriminals, followed by

                                                   52
convictions and appropriate punishment, would serve two principal purposes. They would constitute
an acknowledgment by the world at large, through proceedings with the requisite gravitas, of the
suffering inflicted on the victims. In marshaling the evidence needed to secure a conviction, the
prosecution would speak on behalf of the victims, and the judges would do justice for them.
Simultaneously, because the offenses with which such criminals are charged are appropriately
designated crimes against humanity, the court would signify that it is pronouncing judgment on
behalf of all humankind. International prosecution and punishment in a tribunal established by the
United Nations would be particularly significant, as it would demonstrate that the whole world has
joined in condemning those criminals and in punishing them. The other purpose that would be
served is a demonstration that the most fundamental rules that make a civilized society may not be
flouted with impunity. By embodying universal condemnation, lawfully imposed punishments
would be a reaffirmation not only of the laws that prohibit the crimes that were committed but also
of the idea of law. . . .

        . . . Another possible consequence of adjudging the criminal guilt of those with the highest
level of responsibility for great crimes is that it promotes awareness of their own culpability among
those who cannot be brought to trial for lack of resources; and among those who may not have
committed specific crimes but nevertheless contributed to slaughter by acts of commission or
omission.

         It is, of course, difficult to foretell the impact of trials before the international tribunal on the
public sense of guilt. Yet the experience of Nuremberg . . . suggests that the airing of evidence
against those accused of principal responsibility for crimes against humanity may alleviate a sense of
collective criminal guilt. At the same time, it may heighten a sense of collective political, moral, and
metaphysical responsibility[.] That is, though culpability for crime must always be assessed
individually, when the guilt of particular persons is proven in a fair trial, others may see with greater
clarity the manner in which their own acts of commission and of omission contributed to the climate
that made it possible for such crimes to take place. Germans who know of the crimes of which their
former leaders were convicted in Nuremberg, and in subsequent trials by German courts and courts
of several other countries, manifest their sense of collective guilt in many ways: among them, by
erecting memorials in Germany itself to the victims of the Nazis; by dealing forthrightly with Nazi
crimes in school textbooks; and by turning out in large numbers to demonstrate against episodes of
neo-Nazi violence in Germany.

        . . . The participation of great numbers in . . . wrongdoing inevitably makes one question
whether a justice process that focuses on a handful of top criminals can effectively individualize
criminal guilt. Yet if one believes that an aspect of the criminality of the leaders, both in ex-
Yugoslavia and in Rwanda, was that they deliberately implicated thousands of others in their crimes,
a limited number of trials of those with the highest level of guilt for the egregious crimes may
nevertheless be an appropriate response. The effect will not be limited to the individuals who are
condemned and to their victims. It will also be felt by the followers of those tried and punished and
even by those who may have regarded themselves merely as bystanders. Those not prosecuted,
because of a lack of resources, or because their contributions to ethnic cleansing or genocide did not
constitute specific crimes, or because they remained passive while horrendous crimes were

                                                     53
committed in their midst, will be left with the burden of political, moral, and metaphysical
responsibility.


                                         NOTES AND QUESTIONS

1.      Neier‘s essay was published in 1999. In light of the different truth and reconciliation commissions and
criminal prosecutions in Timor-Leste, Latin America, and South Africa, is Neier‘s critique still valid?

2.       The U.N.‘s initial failure to prevent and halt violence in the former Yugoslavia severely undermined its
credibility. Establishment of the ICTY was viewed by many as an effort by the Security Council to restore its
credibility and to be seen as doing something even though it was unable to end the conflict. Was this an act of
symbolism or desperation? Or of cynicism?

3.       Security Council resolutions 827 and 955 identify a number of purposes underlying the creation of the
ICTY and ICTR. These purposes include halting violations of international humanitarian law; bringing to
justice individuals accused of committing these violations; contributing to the restoration and maintenance of
peace; ensuring redress for victims; and, in the case of Rwanda, contributing to national reconciliation and
assisting in the further development of the national judicial system. Are all of these aims consistent and
mutually-reinforcing? Is each being pursued with equal vigor? Which goals do you think an international
tribunal is most likely to accomplish? Supporters of the Tribunals, such as Murphy, often stress the important
contributions which the bodies are making to the further development of international law. How do these
jurisprudential achievements relate to the specific mandate of the Tribunals?

4.       The ICTY has been hampered by the unwillingness of national authorities to cooperate in delivering
indictees to the Tribunal. For example, the Government of the Federal Republic of Yugoslavia repeatedly
denied requests for cooperation, before finally cooperating on issues such as the extradition of Slobodan
Milosevic. See Report 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, U.N. Doc. S/1997/729 (1997), at ¶ 184. The ICTY has repeatedly turned to the Security Council for
assistance. See, e.g., ICTY Press Release, Letter from President McDonald to the President of the Security
Council Concerning Outstanding Issues of State Non-Compliance, JL/P.I.S./444-E (1999). To date, however,
the Council has lacked the political will to use sanctions or other coercive means to gain the cooperation of
recalcitrant governments.

         During the ICTY‘s initial years of operation, the Member States of NATO also refused to execute the
Tribunal‘s warrants. They argued that the duty to comply with the ICTY‘s orders did not extend beyond their
own national borders.20 In July 1997, under increasing public pressure from then-Prosecutor Louise Arbour,
NATO Stabilization Force (SFOR) troops conducted their first arrest operation in Bosnia. In the raid, British
soldiers successfully apprehended Milan Kovacevic, a Bosnian Serb hospital director indicted on genocide
charges for his role in the mass execution of over 200 non-Serb men who had sought refuge at Vukovar
hospital. See Prosecutor v. Mrksic, Radic, Sljivancanin and Dokmanovic (Initial Indictment) (IT-95-13a)
(Nov. 7, 1995). In a second attempted arrest on the same day, Simo Drljaca was killed after opening fire on

20
  For a discussion of the duty to arrest, see Paola Gaeta, Is NATO Authorized or Obliged to Arrest Persons Indicted
by the International Criminal Tribunal for the Former Yugoslavia?, 9 EUR. J. INT‘L L. 174 (1998); Diane F.
Orentlicher, Responsibilities of States Participating in Multilateral Operations with Respect to Persons Indicted for
War crimes, in MAKING JUSTICE WORK, A REPORT OF THE CENTURY FOUNDATION/TWENTIETH CENTURY FUND
TASK FORCE ON APPREHENDING WAR CRIMINALS (1998).
                                                         54
British troops. See Richard Boudreaux, NATO Forces Kill Serb Suspect, Arrest Another, L.A. TIMES, July 11,
1997, at A1. Both Kovacevic and Drljaca had been charged in secret indictments -- an approach adopted by
the ICTY Prosecutor to avoid alerting suspects and to increase the willingness of SFOR to carry out arrests.
Through July 2000, a further 19 indictees were arrested in SFOR seizure operations, including Momcilo
Krajisnik, the former co-president of the Bosnian Federation and the highest ranking suspect to appear before
the ICTY.

         In the ICTY‘s first trial, Dusan Tadic was convicted of crimes against humanity, violations of the laws
and customs of war, and grave breaches of the Geneva Conventions for participating in the murder and ill-
treatment of civilians held in the Omarska, Keraterm, and Trnopolje detention facilities. Tadic received a
sentence of 20 years. Drazen Erdemovic, a conscript in the Bosnian Serb military, was convicted of war
crimes for his role in the execution of civilians after the fall of the U.N. ―safe haven‖ at Srebrenica. On appeal
his sentence was reduced from ten years to five. Zlakto Aleksovski, commander of a detention facility in
which Bosnian Muslim civilians were subjected to inhumane treatment and forced labor, was convicted of
grave breaches of the Geneva Conventions and war crimes and sentenced to 7 years in prison. The Tribunal
convicted Anto Furundzija of violations of the laws and customs of war in connection with sexual assaults
committed by soldiers under his command. The Tribunal sentenced him to 10 years imprisonment. See infra
at 59for more information on the Furundzija case . In the other completed cases, Dragan Papic was acquitted
on all charges; charges against Marinko Katava, Ivan Santic, and Pero Skopljak were withdrawn; and three
indictees died while awaiting trial. (Djordje Djukic died shortly after his provisional release on health grounds;
Milan Kovacevic died of natural causes while awaiting trial; and Slavko Dokmanovic committed suicide in
custody.)21

5.       The military conflict in Bosnia ended in late 1995 with the signing of the Dayton Peace Agreement.
The Agreement provides for a single unified Bosnia, containing one Serb-controlled state and one state shared
by Muslims and Croats, with a common presidency. See Peter Slevin, America Will Enter Bosnia with Eyes
Open to Problems, THE OREGONIAN, Nov. 23, 1995, at A4. The Dayton Agreement also includes a new
constitution for Bosnia and Herzegovina. Article IX of the constitution bars persons indicted by the ICTY or
serving a sentence imposed by the ICTY from running for or holding ―any appointive, elective, or other public
office in the territory of Bosnia and Herzegovina.‖22

6.        In 1998 international monitors in the southern Yugoslav province of Kosovo reported increasingly
violent campaigns by Yugoslav police and paramilitary forces against the majority ethnic Albanian population.
 The ICTY immediately deployed significant investigative staff and resources to the region. On 24 May 1999,
a judge of the ICTY confirmed an indictment against Yugoslav president Slobodan Milosevic based on his
responsibility for crimes committed in Kosovo beginning in 1999. The indictment constituted the first ever by
an international tribunal against a sitting head of state. Along with Milosevic, the ICTY indicted four other
high-ranking Yugoslav officials: Milan Milutinovic, President of Serbia; Nikola Sainovic, Deputy Prime
Minister of Yugoslavia; Dragoljub Ojdanic, Chief of Staff of the Yugoslav Army; and Vlajko Stojiljkovic,
Minister of Internal Affairs of Serbia. The five were charged with crimes against humanity and violations of
the laws or customs of war. Arrest warrants were issued to all Member States of the United Nations and, also
for the first time, States were ordered to investigate whether assets belonging to the accused were located in
their territory and, if so, to freeze such assets. See ―President Milosevic and Four Other Senior FRY Officials


21 For full details of all ICTY cases, see ―The ICTY at a Glance‖ section of the Tribunal‘s internet site at
http://www.un.org/icty/.
22 The official texts of the Dayton Peace Agreement can be accessed through the internet site of the Office of the
High Representative, the international authority which oversees the implementation of the civilian aspects of the
Agreement, at http://www.ohr.int/gfa/gfa-home.htm.
                                                         55
Indicted for Murder, Persecution and Deportation in Kosovo,‖ ICTY Press Release JL/PIU/403-E, 27 May
1999.23

         The ICTY Prosecutor also examined the possibility that NATO had committed crimes falling under the
jurisdiction of the Tribunal in the course of its intervention in Kosovo. Several human rights groups, including
Amnesty International and Human Rights Watch, alleged that NATO committed violations of international
humanitarian law in the course of its bombing raids. See chapter 7, supra, at 328-345. In May 1999, then-
Prosecutor Louise Arbour established a committee to assess the allegations and determine whether there was
sufficient basis to proceed with an investigation into incidents related to the NATO bombing.24 On June 2,
2000, the new ICTY Prosecutor Carla del Ponte informed the Security Council that she had completed her
review of the committee‘s assessment and had decided not to open an investigation. According to del Ponte,
NATO had ―committed some errors‖ but there was no evidence of deliberate targeting of civilians. See
Prosecutor‟s Report on the NATO Bombing Campaign, ICTY Press Release PR/P.I.S./510-e, 13 June 2000.

         Claims stemming from the NATO bombing of Yugoslavia have been brought before other
international courts. In April 1999, the government of Yugoslavia instituted proceedings against ten NATO
members in the International Court of Justice (ICJ). The government of Yugoslavia alleged inter alia that the
NATO members had resorted to the use of force in violation of the U.N. Charter. The Yugoslav government
also filed a request for provisional measures, asking the Court to issue an injunction to halt the bombings. In
its decision of June 2, 1999, the ICJ ruled that it lacked prima facie jurisdiction, which is required in order to
consider a request for provisional measures. The Court announced that its findings did not preclude an
ultimate finding of jurisdiction, however, and it requested the parties to prepare and submit memorials on the
substantive issues raised by the Yugoslav claim. See ICJ Press Release, Legality of the Use of Force: The
respondent States challenge the Court‟s jurisdiction and the admissibility of Yugoslavia‟s applications, Press
Communique 25/2000 (2000).25

         In July 2000, attorneys representing families of five Serb civilians killed during a NATO bombardment
of a Belgrade television studio filed applications at the European Court of Human Rights against 17 NATO
member states. The applicants alleged violation of the right to life guaranteed under Art. 2 of the European
Convention on Human Rights. See Emily Milich & Nicholas Rufford, Families to sue Britain over Belgrade
blitz, SUNDAY TIMES (LONDON), July 16, 2000. For a detailed discussion of the European Convention on
Human Rights see chapter 12.

7.        As of April 13, 2006, the ICTR had convicted only 24 individuals. At that time, there were also sixty-
six detainees of the ICTR either on trial, awaiting trial or transfer, or pending an appeal. Another 80,000 were
in jail in Rwanda, awaiting trial in the Gacaca courts. The UN claims that after ten years only a quarter of all
suspects had been brought before a court. While the tribunal continually faces difficulty handling the sheer
volume of suspects, it has also struggled to arrest several of those indicted. In 2004, fourteen indicted people
were at large—the majority believed to have fled to the Democratic Republic of Congo.

         Additionally, as of January 2005, the ICTR had not indicted any members of the Tutsi Rwandan
Patriotic Front, yet as Belgian expert witness on genocide Filip Reyntjens stated, ―[t]hese crimes fall squarely


23 Available at http://www.un.org/icty/pressreal/p403-e.htm.
24The first Prosecutor for the ICTY and ICTR was Richard Goldstone of South Africa, who served from the
establishment of the ICTY in 1993 through October 1996. The second Prosecutor was Louise Arbour, a Canadian,
who held the office for the next three years. Arbour was succeeded by Swiss federal prosecutor Carla del Ponte in
September 1999.
25 Available at http://www.icj-cij.org.
                                                        56
within the mandate of the ICTR, they are well documented - testimonial and material proof is available, and the
identity of RPF suspects is known.‖ Rachel Rinaldo, Inter Press Service, Can the Gacaca Courts Deliver
Justice? INTER PRESS SERVICE, Apr. 8, 2004.26 Former ICTR prosecutor Carla del Ponte sought to prosecute
the Tutsis responsible for war crimes, including the killing of women and children. However, del Ponte was
removed in 2003 by a unanimous vote of the Security Council, which she blames on the United States and
Great Britain, both allies of the Tutsi-led government. See Id.

         In July 2005, 30,000 detainees were released by Rwandan government authorities after pleading guilty
to minor roles in the killings. These former detainees will now stand trial in the traditional Gacaca court
system. To facilitate the Gacaca court proceedings, the Rwandan government has trained over 250,000 people
to serve on traditional Gacaca court panels. The Gacaca courts are being used in response to the overwhelming
number of suspects remaining to be tried, a number some government officials believe to be around 500,000.
Rory Carroll, Genocide Tribunal “Ignoring Tutsi Crimes,” GUARDIAN, Jan. 13, 2005.27 ―Gacaca hearings are
traditionally held outdoors (the word loosely translates as ‗justice on the grass‘), with household heads serving
as judges in the resolution of community disputes. The system is based on voluntary confessions and apologies
by wrongdoers.‖ Rachel Rinaldo, Can the Gacaca Courts Deliver Justice, INTER PRESS SERVICE, Apr. 8,
2004. The Gacaca courts allow witnesses for and against a defendant to testify and those who confess receive
lighter sentences. In some cases, the surrounding community is required to attend and participate, with fines
and other penalties for those failing to attend. Still, Amnesty International claims that there has been low
community participation, primarily from fear of retribution for testifying. Other issues such as fair trial
assurances, court biases, and sheer quantity of suspects also raise doubts of the Gacaca‘s courts‘ ability to
prosecute those responsible for the killings.

         While the ICTR has focused its prosecutions on the principal military, political, religious, business,
and organizational leaders of the genocide, other Rwandan national courts also play a role in the prosecution of
the genocide. Genocide can be prosecuted in the national courts, though the Tribunal has primacy over the
national courts and can call on national courts to terminate their proceedings against defendants and demand
that the defendants be turned over to the Tribunal. Once tried in a national court, a defendant may not be
retried in the Tribunal unless the national court proceeding was tainted with a lack of impartiality or
independence or if the defendant is to be tried for a different crime in the Tribunal.

         Prison conditions have been appalling. In some instances, the prisons were crammed with four to six
detainees per square meter. Human Rights Watch has called the prisons ―inhuman and life threatening,‖ with
the International Committee of the Red Cross stating that ―disastrous hygiene conditions‖ have caused ―the
rapid spread of diseases.‖ Human Rights Watch, Prisons: Prisons in Africa;28 Press Release, International
Committee of the Red Cross, Rwanda: ICRC sounds alarm on appalling prison conditions (Mar. 31, 1995). 29
Health concerns were exacerbated by food shortages in the prisons. Many prisoners had to rely on family
members to bring them food daily, an impossibility for families not living in close proximity to the prison in
which their family member was being held. Another disturbing feature of the Rwanda prisons is the fact that
thousands of people alleged to have participated in the genocide spent six to nine years in prison without ever
being charged for a crime.

8.       The government of Rwanda began its own genocide trials in December 1996. During the first four
years of national trials, Rwandan courts processed the cases of over 2,500 defendants. In these cases the courts


26 Available at http://www.globalpolicy.org/intljustice/tribunals/rwanda/2004/0408justice.htm.
27 Available at http://www.globalpolicy.org/intljustice/tribunals/rwanda/2005/0113tutsicrimes.htm.
28 Available at http://www.hrw.org/prisons/africa.html.
29 Available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/57JLZH.
                                                        57
handed down 370 death sentences and approximately 800 terms of life imprisonment. Nearly 500 individuals
were acquitted. On 24 April 1998, Rwandan authorities executed 22 of the condemned before thousands of
spectators. See Louise Tunbridge, Applause as 22 are shot for genocide in Rwanda, THE DAILY TELEGRAPH,
April 25, 1998, at 16. At the end of 1998, Rwanda jails held over 130,000 persons on genocide charges. See
Hrvoje Hranjski, Rwanda to free genocide suspects; Overtaxed justice system lacks evidence against 31,000,
government says, BOSTON GLOBE, Nov. 11, 1998, at A2.

        Amnesty International has described the national criminal procedures in the following terms:

        While the first wave of genocide trials - from December 1996 into most of 1997 - were characterized
        by gross violations of international standards of fairness, the conduct of many trials improved from
        1998 onwards…. However, overall, a number of fundamental problems remain, stemming from the
        highly charged political context after the genocide, the overwhelming number of cases and the
        dramatic shortage of qualified and experienced judicial officials and lawyers. Among the main
        problems are the fact that defendants only benefit from legal assistance once their trial has been
        announced - they are not assisted by a lawyer in any of the pre-trial stages; incidents of pressure and
        intimidation on prosecution and defence witnesses are regularly reported; trials are repeatedly delayed;
        the process for appeals is often especially lengthy; and survivors of the genocide and families of
        victims have still not obtained the compensation which the state has promised them repeatedly.
        Feelings of dissatisfaction and frustration in the face of the perceived slow pace of trials have been
        expressed both by survivors of the genocide and by defendants.

Amnesty International, Rwanda: the Troubled Course of Justice, AFR 47/10/00 (April 2000).

         National trials have also taken place in Bosnia and Herzegovina. In February 1996, the presidents of
Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia signed an agreement in Rome
establishing uniform procedures for the arrest and prosecution of suspected war criminals.30 Under the
agreement, known as the ―Rules of the Road,‖ national authorities must submit an arrest warrant or indictment
to the ICTY for review before proceeding against a suspect. In addition to determining whether an indictment
or warrant is based on sufficient evidence, as part of the vetting process the ICTY Prosecutor also considers
whether the case is one which would more appropriately be tried before the ICTY. In this case, national
authorities are requested to defer to the competence of the Tribunal. See Office of the High Representative in
Bosnia and Herzegovina, Human Rights Update (May 2000).31 Established in March 2005,

        [t]he special War Crimes Chamber in the State Court of Bosnia and Herzegovina . . .
        will try the cases of lower- to mid-level perpetrators indicted by the ICTY and
        referred to the Bosnian court . . . . [Additionally] the War Crimes Chamber will be
        responsible for those cases submitted to it by the ICTY Office of the Prosecutor
        where investigations have not been completed. The referrals policy is motivated by
        the ICTY‘s objective, mandated by the United Nations Security Council, to complete
        all first-instance trials by the end of 2008. The Bosnian judiciary is also handling war
        crimes cases originally initiated in Republika Srpska and the Federation of Bosnia
        and Herzegovina. . . . . Between 1996 and January 2005, ninety-four defendants . . .
        had been tried in Bosnia. In addition, at least seventy-three persons were being
        actively investigated or were in the pre-trial phase in January 2005. Human Rights

30 The Rome Agreement is available at http://www.ohr.int/docu/d960218a.htm.
31 Available at http://www.ohr.int/humanrights/dwct.htm.
                                                      58
        Watch, Importance of War Crimes Prosecutions in Republika Srpska, Mar. 2006.32

 9.      Prosecuting those responsible for systematic rapes has proven one of the most important challenges
facing the Tribunals. According to a European Community investigation team, Serb forces raped up to 20,000
women throughout the conflict in Bosnia. Investigators emphasized that rapes were not random occurrences,
but rather a weapon of war to intimidate and drive Muslims from their homes. See William Drozdiak, Serbs
Raped 20,000, EC Team Says, WASH. POST, Jan. 8, 1993, at A12. While estimates of rape victims in Rwanda
have varied widely, the OAU panel of experts concluded that rape was used to isolate Tutsi women and
humiliate their families and husbands. See Organization of African Unity, The International Panel of Eminent
Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, Rwanda: The
Preventable Genocide (2000), at ¶ 16.18.33

        As discussed supra at 50-51, the ICTR established international legal precedent in the Akayesu case by
recognizing rape and other forms of sexual violence as independent crimes against humanity. Further, the
Tribunal based Akayesu‘s conviction for genocide in part on crimes that included sexual violence. See
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (September 2, 1998). The ICTY successfully
prosecuted rape as a crime of war in the Furundzija case. See supra at 54. Furundzija commanded a Bosnian
Croat paramilitary group and was convicted on two counts of war crimes for torture and outrages upon
personal dignity for overseeing, aiding and abetting rapes committed by individuals under his command. See
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A (July 21, 2000).

         In 1993, the Center for Constitutional Rights (CCR) filed a class-action civil suit in New York on
behalf of female victims in the former Yugoslavia. The suit charged Radovan Karadzic, commander of
Bosnian-Serbian forces in Bosnia-Herzegovina, with directing his forces to commit ―widespread and
systematic human rights abuses‖ including rape and other sexual abuse, genocide, summary execution, torture,
and cruel, inhuman, or degrading treatment. Shortly thereafter, a Bosnian rape survivor, S. Kadic, and two
Bosnian victims‘ organizations filed a second suit against Karadzic, seeking compensatory and punitive
damages for personal injuries suffered as a result of genocidal acts, torture, extrajudicial killing and other
violations of international law. The U.S. government filed a strong brief on behalf of both sets of plaintiffs.
The court in Doe v. Karadzic, 866 F.Supp. 734, dismissed the actions for lack of subject matter jurisdiction,
but the U.S. Court of Appeals for the Second Circuit reversed and found jurisdiction, 70 F.3d 232 (2d Cir.
1995). The two suits then proceeded separately. In August 2000, a federal jury awarded the Kadic plaintiffs a
judgment of $745 million against Karadzic, who had refused to participate in the proceedings. See Christine
Haughney & Bill Miller, Karadzic Told to Pay Victims $745 Million, WASH. POST, Aug. 11, 2000, at A13.
One month later, the plaintiffs in Doe v. Karadzic were granted a judgment of $ 4.5 billion, No. 93 Civ. 878
(S.D.N.Y.) See also infra chapter 14.

         For further reading on the crime of rape under international law, see infra chapter 14 see Kelly D.
Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current
Status, 93 A.J.I.L. 97 (1999); Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87
AM. J. INT‘L L. 424 (1993); Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 CASE W. RES. J.
INT‘L L. 277 (2002).

10.     Is an international criminal tribunal capable of producing an authoritative historical record through its
judgments, in the manner of a truth and reconciliation commission? One impediment to such an effort lies in
the manner in which cases come before a tribunal. Unlike a truth commission, an international tribunal has
substantially less latitude in determining the types of cases it hears, and thus the record it ultimately produces.

32 Available at http://hrw.org/reports/2006/bosnia0306/3.htm.
33 Available at http://www.oau-oua.org/Document/ipep/ipep.htm.
                                                        59
Often, factors and processes beyond the control of the court -- some procedural and others political --
determine which crimes its prosecutors are able to investigate and prosecute. For example, the refusal of the
Bosnian Serb political entity to cooperate with the ICTY has meant that judgments against Bosnian Serb
defendants make up a disproportionately small share of the ICTY‘s rulings.

         To provide the ICTY with a degree of control over the historical record it produces, the Tribunal‘s
judges created a procedure for publicly airing the case against an indictee who refuses to appear. These so-
called indictment reconfirmation proceedings, which are governed by Rule 61 of the Tribunal‘s rules of
evidence and procedure, allow the prosecution to present all of the evidence supporting the indictment,
including the live testimony of witnesses. In his opening statement in the first of these ―Rule 61 hearings‖,
then-Prosecutor Richard Goldstone explained that the public record produced at the hearings ―will assist in
attributing guilt to individuals and be an important tool in avoiding the attribution of collective guilt to any
nation or ethnic group. Some national truth commissions have been successful in fulfilling such a role by
naming accused persons and revealing the evidence reasonably supporting their guilt.‖ See Prosecutor v.
Nikolic, No. IT-94-2-R61, P 2 (Oct. 9, 1995). According to the ICTY‘s public information office, the Rule 61
hearings were also intended to provide victims the opportunity to testify about their experiences:

        Rule 61 affords a formal means of redress for the victims of the absent accused‘s alleged crimes by
        giving them an opportunity to have their testimony recorded for posterity either directly if they are
        invited to testify or indirectly when the Prosecutor speaks on their behalf. Thus the accused cannot
        escape from international justice simply by staying away from the Tribunal, and the Tribunal will
        create an historic record against him.

See Rule 61: The Voice of the Victims, ICTY BULLETIN, No. 3 (1996).34 Officers of the Tribunal have
stressed that a Rule 61 hearing does not constitute a trial in absentia because it does not result in a formal
judgment against the accused. Id.

          Five Rule 61 proceedings were held in 1995 and 1996, before pre-trial appearances and then actual
trials replaced them on the ICTY‘s docket. Rule 61 has not been invoked by the ICTR. For a critique of the
Rule 61 procedure and an evaluation of the truth-compiling capacity of the ICTY, see Mark Thieroff &
Edward A. Amley, Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal
Tribunal for the Former Yugoslavia and Rule 61, 23 YALE J. INT‘L L. 231 (1998).

11.      An increasing number of Bosnians and other individuals active in the reconstruction of Bosnian
society have taken the position that reconciliation will not be achieved through criminal trials alone. See, e.g.,
Human Rights Center, University of California, Berkeley & Centre for Human Rights, University of Sarajevo,
Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors
(2000). In 1997, over 70 political, community, and religious leaders representing all three Bosnian ethnicities
endorsed the establishment of a national truth and reconciliation commission. See Bosnia to Form a Single
Truth Commission, PEACE WATCH (U.S. Inst. of Peace), February 1998, at 1. Work on draft legislation began
in 1998, but has been hampered by hard-line leaders who have retained political influence in Bosnia.

        If, as Neier suggests, there is no dispute concerning the crimes committed in Bosnia, what purpose
might a national truth commission serve? Consider the views of former ICTY Prosecutor Richard Goldstone,
who has endorsed the creation of a national truth and reconciliation commission in Bosnia:

        [w]hile [the international] judicial process is essential for reconciliation to begin, it is insufficient
        alone to satisfy the human need for knowing the truth of a tragic series of events. In addition to
        criminal prosecutions, it is necessary for a damaged society to arrive at a wider understanding of the
        causes of its suffering. For no matter how well the tribunal does its job, the scope of history is far


34 Available at http://www.un.org/icty/BL/bl3.htm.
                                                       60
        broader than proving the guilt of a few specific individuals.

Richard J. Goldstone, Ethnic Reconciliation Needs the Help of a Truth Commission, INT‘L HERALD TRIB.,
October 24, 1998, at 6.

          The ICTY has reacted cautiously to the possible establishment of a national truth commission. See
Alan L. Heil Jr., A Truth and Reconciliation Commission for Bosnia and Herzegovina?, WASHINGTON
REPORT ON MIDDLE EAST, June 2000, at 26. In 1998, the President of the Tribunal, Judge Gabrielle Kirk
McDonald, informed the Security Council of her concern that the proposed commission could complicate the
Tribunal‘s work, for example by compromising the Tribunal‘s access to witnesses and evidence. See Report 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, U.N. Doc. S/1998/737
(1998), at ¶ 225. An alternative proposal which would avoid the potential problems identified by Judge
McDonald calls for the ICTY Prosecutor to be tasked with the production of a comprehensive report based on
all of its investigations. See Marshall Freeman Harris et al., Bringing War Criminals to Justice: Obligations,
Options, Recommendations, in MAKING JUSTICE WORK:                         A REPORT OF THE CENTURY
FOUNDATION/TWENTIETH CENTURY FUND TASK FORCE ON APPREHENDING INDICTED WAR CRIMINALS
(1998), at 61. As of June 2006, Bosnia had failed to establish a national truth and reconciliation commission..

12.     For additional reading on the ad hoc international criminal tribunals, see:

Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of
Punishment, 90 A.J.I.L. 501 (1996);

Payam Akhavan, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United
Nations War Crimes Tribunal, 20 HUM. RTS. Q. 737 (1998);

M. CHERIF BASSIOUNI, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA (1998);

YVES BEIGBEDER, JUDGING WAR CRIMINALS: THE POLITICS OF INTERNATIONAL JUSTICE (1999);

Michael Bohlander, Referring an Indictment from the ICTY and ICTR to Another Rule 11bis and
the Consequences for the Law of Extradition, 55 INT‘L & COMP. L. Q. 219, (Jan. 2006).

Richard J. Goldstone, The International Tribunal for the Former Yugoslavia: A Case Study in Security
Council Action, 6 DUKE J. COMP. & INT‘L L. 5 (1995);

Constantinos Hotis, A “Fair and Expeditious” Trial: A Reappraisal of Slobodan Milosevic‟s Right to
Self-Representation Before the International Criminal Tribunal for the Former Yugoslavia, 6 CHI. J.
INT'L L. 775 (Winter 2006).

JOHN R.W.D. JONES & STEVEN POWLES, International Criminal Practice: The International Criminal Tribunal
for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court,
the Special Court for Sierra Leone, the East Timor Special Panel for Serious Crimes, War Crimes Prosecutions
in Kosovo, 3rd ed. (2003);

Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 A.J.I.L. 78 (1994);

VIRGINIA MORRIS & MICHAEL SCHARF, AN INSIDER‘S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL
FOR THE FORMER YUGOSLAVIA: A DOCUMENTARY HISTORY AND ANALYSIS (1995);
                                                      61
VIRGINIA MORRIS & MICHAEL SCHARF, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (2 VOLS.)
(1998);

Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia, 93 A.J.I.L. 57 (1999);

UN Documents Establishing an International Tribunal for the Former Yugoslavia, 32 I.L.M. (1993);

Cecile Tournaye, Genocidal Intent Before the ICTY, 52 INT‘L & COMP. L. QRT. 447 (2003).


        4. Development of New Tribunals

The Special Court for Sierra Leone

        Calls for the creation of additional ad hoc tribunals initially failed to generate Security
Council action. See P. S. Suryanarayana, East Timor leaders for rights tribunal, THE HINDU, Jan. 31,
2000; Call to indict Iraqi „war criminals‟, BBC ONLINE, Tuesday, 25 July, 2000; US Secretary of
State rejects war crimes tribunal for Chechnya, AGENCE FRANCE PRESSE, Apr.14, 2000. In August
2000, however, the U.N. Security Council took steps towards establishing an ad hoc tribunal for
Sierra Leone by adopting Resolution 131535. In a unanimous vote the Council asked the Secretary-
General to draft a statute for a body that would try individuals accused of committing crimes against
humanity, war crimes, and other serious violations of international humanitarian law, ―as well as
crimes under relevant Sierra Leone law committed within the territory of Sierra Leone.‖ See Barbara
Crossette, U.N. to Establish a War Crimes Panel to Hear Sierra Leone Atrocity Cases, N.Y. TIMES,
Aug. 15, 2000.

        After some initial funding problems and a brief relapse into armed conflict the Special Court
for Sierra Leone (SCSL) was finally established. On January 16, 2002, after over a year of
negotiations, the U.N. and the government of Sierra Leone signed an agreement, which created the
legal framework for the court, which is based in Freetown and has both international and Sierra
Leonean judges, prosecutors, and staff. The court has limited temporal jurisdiction, reaching back
only as far as November 30, 1996. The SCSL announced its first seven indictments in March 2003
and is intended to prosecute a total of between 20 and 30 people. As of January 2006, eleven people
had been indicted by the court.36 The only indictee not in custody of the Special Court is Johnny
Paul Koromo.

        Although individually charged, [the indictees] have been grouped into three separate
        trials. The Revolutionary United Front (RUF) trial consisting of Kallon, Gbao and
        Sesay began on 5 July 2004. The Civil Defence Forces (CDF) trial consisting of
        Norman, Fofana and Kondewa commenced on 3 June 2004. The Armed Forces
        Revolutionary Council (AFRC) trial began in March 2005. All nine individuals have
        pleaded not guilty and are provided with defence representation paid for by the


35 UN. Doc. S/Res/1315 (2000), available at http://www.un.org/Docs/scres/2000/sc2000.htm.
36 See http://www.sc-sl.org/about.html.
                                                     62
         Registry of the Special Court. The defence teams are comprised of both Sierra
         Leonean and international lawyers. If the indictees are found guilty, they may be
         sentenced to prison terms and/or have their property and possessions taken from then.
         The Judges cannot impose the death penalty.

Special Court for Sierra Leone: Basic Facts Pamphlet.37 Charges against the defendants include
―murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery,
conscription of children into an armed force, and attacks on United Nations peacekeepers and
humanitarian workers, among others.‖38

        The Special Court will follow the rules of the ICTR as they existed at the time the Special
Court was created. These rules can be amended or additional rules adopted by unanimous consent of
the judges. The rules have been amended five times since their adoption.

        On November 2, 2005, Human Rights Watch issued a report praising the Special Court for:
having indicted members of each of the three warring factions; demonstrating that defendants receive
fair legal representation; establishing a competent witness protection program; and educating the
people of Sierra Leone on the court‘s purpose and proceedings. See Human Rights Watch, Justice
in Motion: The Trial Phase of the Special Court for Sierra Leone, Nov. 2005, Vol. 17, No. 14(A).39
The report also found that the court, which is funded exclusively through the voluntary contributions
of states, continually lacks funding.

        Sierra Leone has also established a Truth and Reconciliation Commission (TRC),40 which
began public hearings on April 14, 2003. The concurrent operation of both an international tribunal
and a TRC is unusual and raises issues about the relationship between the two, especially with
respect to the power of the SCSL to subpoena confidential witness information from the TRC.41
While there is no formal agreement between the two bodies, they are expected to be complementary
and cooperative.

        In March 2003, the prosecutor of the SCSL indicted former Liberian warlord—turned
president—Charles Taylor on seventeen counts including war crimes, crimes against humanity,
sexual slavery, and mutilation.42 Taylor is blamed for allegedly luring young boys into combat in
exchange for drugs, money, and sex, and ―training and arming Sierra Leone‘s rebels in a bloody
conflict [that] left tens of thousands of people dead.‖ Lydia Polgreen and Marc Lacey, Nigeria Will
End Asylum for Warlord, NY TIMES, March 25, 2006. Later that year, Taylor claimed asylum in

37 Available at http://www.sc-sl.org/basicfactspamphlet.pdf.
38 See http://www.sc-sl.org/about.html.
39 Available at http://hrw.org/reports/2005/sierraleone1105/sierraleone1105wcover.pdf.
40 The website is http://www.sierra-leone.org/trc.html.
41 Human Rights Watch has put forward a policy paper outlining its vision of the relationship, which is available at
http://www.hrw.org/press/2002/04/sierraleoneTRC0418.htm.
42 On March 16, 2006, the indictment was amended to only eleven counts. The Special Court‘s prosecutor claimed
that the amendment would ―ensure a more focused trial‖ and that ―the thrust and gravity of the former indictment is
in no way diminished.‖ Press Release, Special Court for Sierra Leone, Office of the Prosecutor, Chief Prosecutor
Announces the Arrival of Charles Taylor at the Special Court (Mar. 29, 2006).
                                                         63
Nigeria as part of an internationally brokered peace settlement and remained there under the
protection of the Nigerian government. The international community began voicing its support for
the extradition of Taylor to the Special Court in early 2005, while President Obasanjo of Nigeria
claimed to be waiting for a democratically elected Liberian president to make that decision.
Finally, after Taylor had spent more than two years in exile, Liberia elected and inaugurated
president Ellen Johnson Sirleaf who formerly requested Taylor‘s extradition to the Special Court.
Nigeria granted Sirleaf‘s request and on March 29, 2005, Taylor arrived at the Special Court to stand
trial. In 2006, the Special Court requested that Taylor be transferred to the Hague to avoid causing
tension in the surrounding area. Also, the United Kingdom indicated that in the event that Taylor is
convicted and sentenced to a term of imprisonment, it would be willing to receive Taylor to serve his
sentence in a British prison.

        In late 2003, prior to Taylor‘s arrival at the Special Court, his lawyer had made a motion to
the Special Court‘s Appeals Chambers to dismiss the charges against Taylor citing head of state
immunity. He had also argued that because the Special Court was not an international tribunal, its
jurisdiction was confined to Sierra Leone‘s borders. In May 2004, the court ruled against the motion
on both issues, first, declaring the Special Court an international tribunal and second, stating that a
head of state does not enjoy immunity from prosecution in an international tribunal.


Michael P. Scharf, Self-Representation Versus Assignment of Defence Counsel Before
International Criminal Tribunals, 4 J. INT’L CRIM. JUST. 31 (Mar. 2006).

        Echoing the wording of Article 14 of the International Covenant on Civil and Political
Rights (hereinafter, ICCPR or the Covenant), the statutes of all the modern international criminal
tribunals provide that the defendant has the right ‗to defend himself in person or through legal
assistance of his own choosing‘. Relying on this language, former leaders standing trial for war
crimes may seek to act as their own lawyers in order to transform the proceedings into a political
stage. Is this a necessary evil attendant to the right to a fair trial under conventional and
customary international law, as Judge Richard May, who presided over the trial of Slobodan
Milosevic, concluded? Or can the Covenant, customary international law and the statutes of the
international tribunals be read as permitting an international criminal tribunal to appoint counsel
over the objections of the defendant, as the International Criminal Tribunal for Rwanda (ICTR)
held in the Barayagwiza case?

        How international criminal tribunals answer this question in the future will have a
significant effect on their ability to contribute to peace, reconciliation and the rule of law by
establishing an historic record of atrocities committed by the former regime that is accepted by
the target population. In the case of Slobodan Milosevic, for example, the tactic of self-
representation enabled the former Serb leader to: (1) generate the illusion that he was a solitary
individual pitted against an army of foreign lawyers and investigators, when in fact he had a
squadron of legal counsel assisting him from behind the scenes; (2) make unfettered caustic
speeches throughout the trial which were not restricted by the rules of relevance or subject to
cross-examination by the prosecution; (3) repeatedly challenge the legitimacy of the proceedings

                                                  64
and treat the witnesses, prosecutors and judges in a manner that would earn ordinary Defence
Counsel expulsion from the courtroom. [Whether these tactics would have helped] Milosevic to
obtain an acquittal [is unknown], but opinion polls in Serbia indicate that they have had the effect
of convincing a majority of the Serb people that his trial was unfair and that he was not guilty of
the charges.

        Self-representation has thus enabled Milosevic to cloud the historic record and to
transform himself into a martyr, rather than a discredited war criminal. . . .

        The ICTR was the first international tribunal to face the question of a defendant‘s right to
self-representation, holding in the case of Jean-Bosco Barayagwiza that Defence Counsel could
be assigned over the objection of the accused. . . .

        [The Special Court for Sierra Leone (SCSL) has also dealt with this issue. It too found
that counsel could be appointed regardless of the accused‘s objections.] In requiring the
appointment of standby counsel, the SCSL Trial Chamber sought to distinguish [Sam Hinga]
Norman‘s situation from that of Milosevic in two respects. First, the SCSL noted that Norman is
being tried with two co-defendants. Secondly, Norman did not signal his intention to represent
himself from the outset. The SCSL Trial Chamber then turned to the characteristics of the trial
that made it impossible for Norman to represent himself. According to the SCSL Trial Chamber,
the right of counsel is an essential and necessary component of a fair trial. Without counsel, the
judges are forced to be a proactive participant in the proceedings instead of the arbiter, which is
one of the greatest characteristics of an adversarial proceeding. The SCSL Trial Chamber turned
to the complexity of the case and the intricacies of international criminal law, as well as the
national and international interest in the ‗expeditious completion of the trial‘. The trial judges
were also concerned with the impact on the court‘s timetable. . . .

         If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of
the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has
a duty to put in place a regime which will avoid that. Should self-representation have that impact,
we conclude that it is open to the Trial Chamber to assign counsel to conduct the defence case, if
the Accused will not appoint his own counsel.

        [In Milosevic‘s case], the Appeals Chamber agreed [that based on the language of the
ICTY Statute] that defendants have ―a presumptive right to represent themselves before the
Tribunal.‖ The Appeals Chamber also agreed with the Trial Chamber that the right was subject
to limitations. According to the Appeals Chamber, the test to be applied is that ―the right may be
curtailed on the grounds that a defendant‘s self-representation is substantially and persistently
obstructing the proper and expeditious conduct of his trial.‖ Applying this test, the Appeals
Chamber concluded that the Trial Chamber had not abused its discretion in deciding to restrict
Milosevic‘s right to self-representation.

        However, the Appeals Chamber felt that the Trial Chamber‘s order requiring Milosevic to
act through appointed counsel went too far, and that the proportionality principle required that a

                                                    65
more ―carefully calibrated set of restrictions‖ be imposed on Milosevic‘s trial participation.
Under these, when he is physically able to do so, Milosevic must be permitted to take the lead in
presenting his case -- choosing which witnesses to present, questioning those witnesses, giving
the closing statement and making the basic strategic decisions about the presentation of his
defence: . . . ―if Milosevic‘s health problems resurface with sufficient gravity, however, the
presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily
unable to participate.‖

                                               *****

The Cambodian Tribunal on the Khmer Rouge

        After six years of negotiations the U.N. and the Cambodian government reached an
agreement (―the Agreement‖) on the creation of a tribunal to try Khmer Rouge atrocities in June
2003. The Cambodian legislature ratified the Agreement on October 4, 2005.43 It calls for a court
composed of international and Cambodian judges. Article 3 of the Agreement provides that the Trial
Chamber is to have two international and three Cambodian judges, and the Supreme Court Chamber
is to have three international and four Cambodian judges. Decisions in the Trial Chamber require
four affirmative votes, while decisions in the Supreme Court Chamber require five. Accordingly, the
assent of at least one international decision maker is required for any judgment of the Supreme Court
Chamber. The Agreement at Article 4. There are two chief prosecutors—one Cambodian and one
non-Cambodian—and two chief investigators—one Cambodian and one non-Cambodian. Id. at
Articles 5 & 6. The subject matter jurisdiction of the court is limited to the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the
Rome Statute of the International Criminal Court, and grave breaches of the 1949 Geneva
Conventions, as well as such other crimes as defined by Cambodian law. Id. at Article 9. The rules
of procedure are to be drawn primarily from Cambodian law, not international law. Id. at Article
12(1). Fair trial guarantees are limited to Articles 14 and 15 of the International Covenant on Civil
and Political Rights as well as Cambodian law. Id. at Article 12(2).

        Some international human rights groups have expressed concern about the structure of the
tribunal. Amnesty International, for example, reported that the tribunal has:

   -   insufficient guarantees for international fair trial standards,
   -   insufficient guarantees for an independent and impartial court,
   -   a failure to incorporate the strongest principles of criminal responsibility and law on
       defenses, and
   -   inadequate victim and witness protection.

Amnesty International, Cambodia: Amnesty International‘s Preliminary Views and Concerns About
the Draft Agreement for the Establishment of a Khmer Rouge Special Tribunal, Mar. 21, 2003.44

43 The agreement is found at http://www.cambodia.gov.kh/krt/pdfs/Agreement%20between%20UN%
20and%20RGC.pdf.
44 Available at http://web.amnesty.org/library/Index/ENGASA230032003?open&of=ENG-KHM.
                                                  66
        Funding continues to be an obstacle. Donor nations have pledged $38.48 million, or $4.52
million short of the $43 million goal, towards the establishment of the Extraordinary Chambers. UN
Press Release L/3082, Goverments Pledge $38.48 million for Khmer Rouge Trials in Cambodia,
March 28, 2005.45 The Cambodian government has also claimed that it does not have the $13
million that it had also pledged towards the establishment of the tribunal. While claiming financial
inability, the Cambodian government appears to be delaying the process for political reasons:

        Corruption in Cambodia has become rife, including within the government. In
        addition, there has long been doubt, spread over the years of discussion about a
        Khmer Rouge tribunal, that Premier Hun Sen has any desire to see such an event,
        which would surely see his own days as a Khmer Rouge commander brought up
        again.

Bangkok Post, Khmer Tribunal Stalled Again, August 22, 2005.46 International donors are expected
to give forty-three million dollars to fund the Cambodian tribunal, however the United States is not
expected to offer any financial support. ―The contrast is startling: The United States will spend
some $75 million over two years to support the tribunal in Iraq, despite widespread concerns about
its competence, security and independence, and yet it has budgeted not a dollar for the Cambodian
counterpart, which will confront the worst genocide since World War II.‖ Nathaniel Myers, Justice
Past Due in Cambodia, WASHINGTON POST, Dec. 24, 2005. The lack of funding has been tied to
Republican Senator McConnell of Kentucky and the Senate foreign operations appropriations
subcommittee chief of staff Paul Grove who have repeatedly refused to back ―any tribunal
established by the Government of Cambodia.‖ Id. They fear that any tribunal with Cambodian
judges runs the risk of being unduly influenced by prime minister Hun Sen‘s political party of
Cambodia. However, President Bush signed into the 2006 Foreign Operations Appropriations Act,
which, while omitting any reference to the Cambodian tribunal, potentially allows the United States
to financially support the tribunal.

       It remains unclear when the Extraordinary Chambers will begin to try those responsible for
the mass killings of the late 1970s.

                                                    *****

Timor-Leste

       Timor-Leste, a territory under the control of Portugal, was undergoing a process of
decolonization and self-determination in 1975. On December 7 of that year, Indonesian forces
invaded the country. Indonesia later declared Timor-Leste its twenty-seventh province. The
occupation of Timor-Leste lasted twenty-four years during which the Indonesian army and pro-
Indonesian militia sought to control the territory and fought with East Timorese insurgents. Almost
200,000 East Timorese were killed during the Indonesian occupation. After Suharto stepped down

45 Available at http://www.un.org/News/Press/docs/2005/l3082.doc.htm.
46 Available at http://www.globalpolicy.org/intljustice/tribunals/cambodia/2005/0822stall.htm.
                                                        67
as Indonesia‘s President in 1998 the Indonesian government offered the residents of Timor-Leste an
opportunity to vote for independence. When the residents of Timor-Leste voted by more than a
three-to-one margin for independence, pro-Indonesian militias launched a brutal campaign of
property destruction and human rights abuses. Sixteen days after the abuses began the Indonesian
government allowed an Australian-led U.N. force to land in Timor-Leste and restore order. Upon
arriving in Timor-Leste the UN found no functioning government and no judiciary. The U.N.
established the United Nations Transitional Administration in East Timor (UNTAET) with the stated
purpose of reestablishing the rule of law and institutions for its maintenance.

        At a special session in September 1999, the U.N. Commission on Human Rights (later
endorsed by the Economic and Social Council) created a Commission of Inquiry to investigate
breaches of humanitarian law committed in Timor-Leste after January 1999. The Commission
(comprised of five distinguished individuals from Costa Rica, Germany, India, Nigeria, and Papua
New Guinea) identified incidents in which Indonesian military, police, and militia were involved in
intimidation and terror, killings and massacres, gender violence, other forms of torture and ill-
treatment, targeting of international staff and journalists, destruction of property, displacement of
people, destruction of evidence, and other human rights and humanitarian law violations. The
Commission recommended in a report of 2000 that the U.N. should set up a tribunal comprised of
judges appointed by the U.N. with participation from Timor-Leste and Indonesia to try and sentence
persons who had committed human rights and humanitarian law violations since January 1999. That
tribunal was never created, however, because investigations and some prosecutions were pursued
through United Nations Transitional Administration (UNTAET) and the Indonesian authorities.

        UNTAET created a commission to recommend candidates for judicial and prosecutorial
offices. That commission consisted of three Timor-Leste nationals and two international experts. In
2000, UNTAET reestablished the court system in Timor-Leste. The courts were to consist of
regional district courts and one appeals court in Dili. The Dili district court was given the power to
hear ―serious crimes,‖ which included war crimes, crimes against humanity, murder, sexual offenses,
and torture. Jurisdiction over the latter three offenses was limited to the period from January 1 to
October 25, 1999. Later in 2000, UNTAET established the first Serious Crimes Panel and attached it
to the Dili district. This panel was comprised of two international judges (from Brazil and Burundi)
and one East Timorese judge. The prosecutorial team was mainly composed of non-nationals.

        The Serious Crimes Panel applies East Timorese law as it was expressed by UNTEAT in
regulation 1999/1. The definition of war crimes and crimes against humanity are nearly identical to
those of the Rome Statute of the International Criminal Court.

        The Panel faces the same problems as the Cambodian Extraordinary Chambers: to prosecute
war crimes under the Geneva Convention, the crimes must have been committed during an armed
conflict. The generally accepted view is that war was ongoing from the 1975 Indonesian invasion.
Indonesia counters that it was asked to restore order; few U.N. members have accepted this view
with the exception of Australia. If the prosecutors cannot establish the existence of an armed
conflict, prosecution of war crimes cannot occur.


                                                 68
        In addition, after Timor-Leste was recognized as a state by the United Nations in 2002, the
judicial system struggled to operate even without the burden of international criminal prosecutions.
Trying international crimes takes skills and resources that may be lacking in the newly rebuilt
judicial system. The courts have worked through these difficulties and began issuing opinions by the
end of 2002.

        The final difficulty facing the Serious Crimes Panel is the location of many of the accused
inside of West Timor and other parts of Indonesia. The government of Indonesia has refused to
extradite individuals to stand trial in Timor-Leste and instead chose to conduct trials within
Indonesia. The Indonesian government appointed a National Commission of Inquiry on Human
Rights Violations in East Timor (Komisi Penyelidik Pelanggaran HAM di Timor Timur, KPP HAM)
to investigate human rights abuses perpetrated by Indonesians in Timor-Leste.

        The KPP HAM recommended prosecutions within the Indonesian legal system and cited 670
cases of human rights abuses. Indonesian authorities decided, however, to pursue investigations of
only six of the incidents, all of which involved killings. Eventually only five incidents resulted in
indictments. The Indonesian authorities ignored incidents of rape, torture, and property destruction.
The KPP HAM publicly identified thirty-two individuals, but Indonesian authorities only sought
indictments against eighteen. Of the eighteen indicted only six were convicted. Amnesty
International has criticized those trials for failing to reflect the extent of abuses, to present key
evidence, to employ experienced prosecutors and judges, and to provide adequate protection for
victims and witnesses.

        After the failed efforts by the UN and the governments of Timor-Leste and Indonesia to
prosecute those responsible for the 1999 atrocities, in June 2005, a UN expert panel recommended
that the Security Council establish an international criminal tribunal for Timor-Leste. The
governments of both Indonesia and Timor-Leste have rejected the proposal and have instead
established a Truth and Friendship Commission. ―The UN experts praised the commission for
offering ‗appropriate avenues‘ to reach reconciliation, but stressed there were elements which
‗contradict international standards on denial of impunity for serious crimes.‘‖ John Aglionby, UN
Pressures Jakarta Over East Timor Trials, GUARDIAN, June 29, 2005.47 The Timor-Leste
government has expressed its concern that any further attempts at criminal proceedings would
negatively affect its current relationship with its former occupier and main trade partner.

        According to Amnesty International, such economic concerns are outweighed by the need for
justice. See Amnesty International, Press Release, Indonesia: Killing and Torture Acquittals
Demonstrate Failure of Justice System, September 8, 2005.48 For example, in its first five years
―Indonesia‘s ad hoc Human Rights Court on East Timor acquitted all but one of the only 18
defendants indicted for crimes against humanity committed in 1999, and he remains free pending
appeal.‖ Id. The UN-sponsored Special Panels have likewise failed to even try more than 300
people indicted for serious crimes. See Amnesty International, Public Statement, Timor-Leste:
Timor-Leste: Security Council Inaction on Justice for Timor-Leste Leaves Fight Against Impunity in

47 Available at http://www.globalpolicy.org/intljustice/tribunals/timor/2005/0629pressure.htm.
48 Available at http://news.amnesty.org/index/ENGASA210182005.
                                                        69
Limbo, August 19, 2005.49 Furthermore, the Commission of Truth and Friendship, established
jointly by the governments of Timor-Leste and Indonesia, has been criticized for offering impunity to
alleged human rights violators as disregarding international law. The Commission has faced a lack
of popular support in both Timor-Leste and Indonesia.

Iraq

        Ignoring calls for an international tribunal, on December 10, 2003, the Coalition Provisional
Authority established the Iraqi Special Tribunal. Article 1(b) of the Statute of Iraqi Special Tribunal
states:

       The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq
       accused of [genocide, crimes against humanity, war crimes, or violations of certain
       Iraqi laws], committed since July 17, 1968, and up until and including May 1, 2003,
       in the territory of the Republic of Iraq or elsewhere, including crimes committed in
       connection with Iraq‘s wars against the Islamic Republic of Iran and the State of
       Kuwait. This includes jurisdiction over crimes listed in Articles 12 and 13 committed
       against the people of Iraq (including its Arabs, Kurds, Turcomans, Assyrians and
       other ethnic groups, and its Shi‘ites and Sunnis) whether or not committed in armed
       conflict.

         The tribunal is not without controversy. A report issued by Amnesty International has
criticized the Special Tribunal‘s failure to ensure international law standards for a criminal
proceeding and its lack of fair trial guarantees, such as a ban on the admission of statements obtained
through torture or cruel and unusual treatment. Amnesty International, Iraqi Special Tribunal-Fair
Trials Not Guaranteed, May 13, 2005. Additionally, statements by presiding judges and President
Bush himself have provoked doubts of the fairness of former Iraqi President Saddam Hussein‘s trial.
 See Lawrence Smallman, Impartial Judgment for Saddam?, ALJAZEERA, Dec. 15, 2003. Thus far,
the court has mainly focused on the charges against Hussein whose trial began on October 19, 2005.

Notes and Questions
1.      The United States claims, over the last ten years, to have given ―$7 million towards
documentation and research costs for the crimes committed in Cambodia . . . [while] [l]egislative
restraints made it impossible to pledge moneys towards the Tribunal.‖ UN Press Release L/3082,
Governments Pledge $38.48 million for Khmer Rouge Trials in Cambodia, Mar. 28, 2005.50 Can the
United States justify spending $75 million on the Iraqi tribunal and not giving any money to support
the Cambodian tribunal—Cambodia being the biggest genocide since WWII? For additional
reading on Cambodia, see Kenton Clymer, Jimmy Carter, Human Rights, and Cambodia, 27
DIPLOMATIC HISTORY 245 (2003).

2.    Human rights activists fear that the opposition to an international criminal court by the
governments of both Timor-Leste and Indonesia stems from their concern for maintaining the

49 Available at http://web.amnesty.org/library/Index/ENGASA570042005?open&of=ENG-IDN
50 Available at http://www.un.org/News/Press/docs/2005/l3082.doc.htm.
                                                  70
current good relations between themselves. Is it in Timor-Leste‘s best interests to wait to pursue an
international tribunal until after it is more economically independent from Indonesia?

3.      Do tribunals that take place twenty-five years after the commission of the crime serve as
deterrents for future crimes against humanity? While the atrocities took place a quarter of a century
ago, officers of the Khmer Rouge still hold prominent governmental positions. Do the Extraordinary
Chambers threaten the unstable reconciliation already achieved by Cambodian society?

4.     Several of the crimes against humanity in Iraq also occurred more than twenty years before
the opening of the tribunals; however, the Iraqi tribunal is trying Saddam Hussein, the Iraqi leader for
crimes committed prior to the establishment of the tribunal. Does the Iraqi tribunal serve as a greater
deterrent to present heads of state and military heads than the Cambodian tribunal?

       Will the US invasion of Iraq and subsequent trials of those responsible for the killings of
thousands of Iraqis deter future crimes against humanity?

5.      On March 11, 2006, Milosevic was found dead in his International Criminal Court prison
cell. His trial took more than four years and ended without conviction – providing little in terms of
closure for many families seeking punishment for and public recognition of his crimes. Milosevic
faced sixty-six charges of genocide, crimes against humanity, and war crimes. The prosecution
called nearly 300 witnesses and presented 5,000 exhibits to the court. Critics charge that ―by
bringing so many charges, the court seemed to be confusing the need to bring one man to account
with the need to produce a clear narrative of war crimes and atrocities for the history books.‖
Quentin Peel, Lessons for Prosecutors of War Crimes Tribunals, FIN. TIMES, Mar. 13, 2006, at 6.
Learning from the Milosevic trial, the prosecutors in the Hussein trial strategically brought the
simplest charges first, those for the more than a hundred deaths in Dujail. The intended effect is to
simplify the proceedings, avoid the length and complexity of the Milosevic trial, and to increase the
likelihood of conviction. U.S. officials also believe that it will be ―easier in the Dujail case to
establish a clear chain of command between Hussein and those who carried out the executions.‖
Edward Wong, Hussein Charged with Genocide in 50,000 Deaths, N.Y. TIMES, Apr. 5, 2006, at A1.

       But they say that the Anfal massacres and the suppression of the Shiite uprising of
       1991, which resulted in up to 150,000 deaths, are the two cases that go much more
       directly to the heart of Mr. Hussein‘s murderous rule, and could prove more cathartic
       for a vast majority of Iraqis.

Id. Which is more important for the local communities that have faced human rights violations
and war crimes, a thorough trial with all issues and charges being brought into the open and tried
or the use of prosecutorial strategy that highly increases the chance of prosecution, but which
bypasses grave human rights violations? Which is more important for the international
community?


F.     A PERMANENT INTERNATIONAL CRIMINAL COURT (ICC)

                                                  71
        In the immediate aftermath of World War II, the newly-created United Nations launched
several major human rights projects. The first two of these projects -- adopting a convention to
prevent genocide and a Universal Declaration of Human Rights -- were completed in 1948. The
remainder of the International Bill of Human Rights, discussed supra in chapter 1, was adopted in
1966. In contrast, more than half a century was needed to establish a permanent international
criminal court.

        The International Law Commission (ILC) submitted a draft statute for an international
criminal court to the General Assembly in 1954. See Report of the Committee on International
Criminal Jurisdiction, U.N. GAOR, Supp. (No. 12) at 21, U.N. Doc. A/26645 (1954). Disagreement
over the definition of aggression, however, prevented further consideration of the statute, just as it
had halted the ILC‘s work on a draft code of offenses against the peace and security of mankind. See
supra, at 35. The ICC project remained dormant until 1990, when the General Assembly asked the
ILC to reopen its consideration of a permanent criminal court. The immediate impetus for that
request was a proposal by the government of Trinidad and Tobago to explore means of combating
the international trade in narcotics.

         The relaunched ICC project quickly gained momentum. The brutality of the conflict
witnessed in the former Yugoslavia galvanized support for a permanent forum for prosecuting the
worst violations of international humanitarian law, while the establishment and experiences of both
ad hoc tribunals added substance to the deliberations. In 1994, the ILC presented a Draft Statute for
an International Criminal Court to the General Assembly. See Report Int‘l L. Comm‘n, 49 U.N.
GAOR Supp. (No. 10) at 29-140, U.N. Doc. A/49/10 (1994), reprinted in 33 I.L.M. 253 (1994). The
draft statute envisioned an ICC established by multilateral treaty and the ILC recommended that the
General Assembly convene a treaty conference for this purpose. In response, the General Assembly
established an ad hoc committee to review the major substantive and procedural issues arising in the
draft statute and consider arrangements for convening a diplomatic conference. G.A. Res. 49/53, 49
U.N. GAOR at 293, U.N. Doc. A/RES/49/53 (1995). Over the next three and a half years
government experts held nineteen weeks of meetings at which they reviewed some 500 proposed
amendments to the draft statute. Finally, in the summer of 1998, diplomats representing over 150
countries convened in Rome to finalize a treaty to establish a permanent international criminal court.

                                                        *****

Jerry Fowler, The Rome Treaty for an International Criminal Court: A Framework of
International Justice for Future Generations, 6 HUM. RTS. BRIEF 1 (Fall 1998) (citations
omitted):

        Late in the evening of July 17, 1998, a treaty to create a permanent International Criminal
Court (ICC) came up for a final vote before a UN Diplomatic Conference in Rome, that had begun
on June 15, 1998. By a vote of 120-7,[51] with 21 abstentions, the participants approved the treaty,
which will create a tribunal for the most serious crimes of international concern: genocide, crimes

51
     China, Iraq, Israel, Qatar, Sri Lanka, Sudan, and the United States voted against adoption of the ICC treaty.
                                                            72
against humanity, and war crimes. . . .

        The treaty will not come into force until 60 countries ratify it . . .. Even after the Court is
established, jurisdictional constraints described below will limit its effectiveness in its early years.
Nonetheless, over time the Court offers real promise for ending the cycle of impunity for the worst
human rights atrocities and increasing deterrence of these horrible crimes. Coming at the end of a
century that witnessed the Holocaust, and with the images of ethnic cleansing in Bosnia and
genocide in Rwanda still fresh, the importance to humanity of this promise is immense.

Structure of the Court

        The Court will be a permanent tribunal with headquarters in The Hague. It will deal only
with crimes committed after the Rome Treaty comes into force. Because the Court will be
established pursuant to a multilateral treaty, it will not be an organ of the United Nations, although
the two organizations will have formal relations. Moreover, the Security Council will have a
significant role in the Court‘s operation by virtue of its authority to initiate or defer investigations
(Article 13(b); Article 16).[52] . . .

        . . . A fundamental principle of the Rome Treaty is that the ICC ―shall be complementary to
national criminal jurisdictions‖ (Article 1). This means that the Court must defer to national systems
unless they are unwilling or unable genuinely to investigate or prosecute a crime that otherwise
would be under the Court‘s jurisdiction (Article 17). Although the Court can always consider on its
own motion whether it should defer to national proceedings, the statute also allows the
complementarity principle to be invoked by interested states and by individuals who have been
accused of crimes. The standard for finding ―unwillingness‖ to investigate or prosecute is quite high.
 For example, national proceedings must have been ―undertaken . . . for the purpose of shielding the
person concerned from criminal responsibility‖ (Article 17(2)(a)). Likewise, a finding of ―inability‖
requires that there has been ―a total or substantial collapse or unavailability of [the] national judicial
system‖ (Article 17(3)). The principle of complementarity underscores that the Court is not intended
to replace functioning judicial systems, but to provide an alternative to impunity where independent
and effective judicial systems are not available.

Crimes Within the Court‟s Jurisdiction

         . . . The Court will have jurisdiction over genocide, crimes against humanity, and war crimes.
 The treaty also provides that the Court will have jurisdiction over the crime of aggression, once the
treaty is amended to define the crime and specify the conditions under which the Court will exercise
that jurisdiction. There was universal agreement that genocide should be included, as well as
agreement that its definition should be drawn from the 1948 Genocide Convention. Other crimes
under consideration generated more controversy.

         Crimes Against Humanity. A tremendous achievement of the Rome Conference was the
52
 For this and all other citations to the Rome Statute of the International Criminal Court, see Selected International
Human Rights Instruments, beginning at 301.
                                                         73
codification of crimes against humanity (Article 7) in a multilateral treaty for the first time since the
Nuremberg Charter. The Court will have jurisdiction over those crimes whether committed by state
or non-state actors. There was a determined effort by a small number of states to limit the Court‘s
jurisdiction to crimes against humanity committed during armed conflict. Customary international
law, however, does not mandate that nexus, and the reality is that crimes against humanity are
committed in peacetime. The final text thus gives the Court jurisdiction over crimes against
humanity whether committed in peacetime or in armed conflict. . . .
        The most contentious issue surrounding crimes against humanity was whether the Court‘s
jurisdiction would extend to ―widespread or systematic attack[s] directed against any civilian
population.‖ Some countries argued that the Court should have jurisdiction only over attacks that are
―widespread and systematic.‖ Human rights groups responded that requiring attacks to be both
―widespread and systematic‖ would unnecessarily limit the Court to those cases where there is
evidence of a plan or policy. They contended that widespread commission of acts such as murder
and extermination should be enough to support the Court‘s jurisdiction.

        A compromise left the basic standard as ―widespread or systematic‖ (Article 7(1)) (emphasis
added), but defined ―attack directed against any civilian population‖ as ―a course of conduct . . .
pursuant to or in furtherance of a State or organizational policy to commit such an attack‖ (Article
7(2)(a)). Unfortunately, the requirement that an attack be pursuant to a policy effectively means that
the crime must be ―systematic.‖ The treaty also includes a requirement that individuals act ―with
knowledge of the attack,‖ suggesting that individual perpetrators must be aware of the policy in order
to be found guilty. These requirements retreat from widely accepted standards of international law
and will significantly restrict the Court‘s jurisdiction over this category of crime.

        An important result of the Rome Conference was the explicit inclusion of crimes of sexual
assault as crimes against humanity and war crimes. Among the acts that can constitute crimes
against humanity and war crimes are ―[r]ape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable gravity‖(Articles 7(1)(g)
(crimes against humanity); 8(2)(b)(xxii) (war crime in international armed conflict); 8(2)(e)(vi) (war
crime in internal armed conflict)). The treaty does not vary from the substance of existing
international law in this respect. The explicit enumeration of these acts as crimes within the Court‘s
jurisdiction, however, is a critical affirmation that rape and other crimes of sexual assault are, under
appropriate circumstances, ―the most serious crimes of concern to the international community as a
whole.‖

        War Crimes. The Rome Treaty gives the Court jurisdiction over war crimes committed in
both international and internal armed conflicts (Article 8(2)). The inclusion of internal armed
conflict in the Court‘s jurisdiction was vital, as most armed conflict in the world today occurs within
national borders. Unfortunately, compromises resulted in the deletion from the Court‘s jurisdiction
of some crimes that otherwise are serious violations of the laws and customs applicable to internal
armed conflict, such as the intentional starvation of civilians as a method of warfare. . . .

       . . . A major disappointment of the treaty is a provision that allows superior orders to be
offered as a defense to war crimes. If Nuremberg stood for anything, it was that ―I was only

                                                   74
following orders‖ is not an excuse for war crimes. The statutes for the Yugoslav and Rwandan
Tribunals likewise specified that superior orders could not relieve an individual of criminal
responsibility. Under the Rome Treaty, however, a defendant will be able to avoid criminal
responsibility by showing that he was under a legal obligation to obey the order, that he did not know
that the order was unlawful, and that the order was not manifestly unlawful. The Rome Treaty also
departs from the Nuremberg Charter and the Tribunals‘ statutes by making it more difficult to
establish the criminal responsibility of the civilian superiors of those who commit war crimes or
other crimes within the Court‘s jurisdiction (Article 28).

       Aggression. The Nuremberg Charter included ―crimes against the peace,‖ along with war
crimes and crimes against humanity, and many felt that it would be a step backward to establish a
permanent tribunal without including the crime of aggression in the Court‘s jurisdiction. There
were, nonetheless, deep disagreements about defining the crime and determining what role, if any,
the Security Council should have in determining whether aggression has occurred. In the end, the
Court‘s subject matter jurisdiction included aggression (Article 5(1)(d)).

        The Court cannot, however, exercise jurisdiction over aggression until the treaty is amended
to define the crime and establish the conditions under which the Court shall exercise jurisdiction
(Article 5(2)). As a practical matter, such an amendment might never happen. No amendments will
be considered until seven years after the treaty‘s entry into force, and, even then, amendments will
require a two-thirds vote of the Assembly of States Parties and ratification by seven-eighths of the
States Parties to receive approval.

        Drug Trafficking and Terrorism. The inclusion of drug trafficking and terrorism enjoyed
significant support, though less than aggression. In a resolution attached to the Final Act, the
conference participants recommended that a review conference consider adding these crimes to the
Court‘s subject matter jurisdiction. As a practical matter, the Court‘s onerous amendment provisions
render it unlikely that these crimes will ever fall within the Court‘s aegis.

“Triggering” the Court‟s Jurisdiction

        A central political issue resolved in the final week of the conference was how Court
proceedings can be ―triggered.‖ There was widespread agreement that States Parties should be able
to refer situations to the Court. But there was vigorous debate about whether the Security Council
should be able to refer situations and whether the prosecutor should be able to initiate investigations
on her own motion.

        Security Council. The Rome Treaty permits the Security Council to refer situations to the
Court while acting under Chapter VII of the UN Charter (Article 13(b)). . . . The Security Council
also will have the power to defer investigations or prosecutions for renewable twelve month periods.
...

       The Prosecutor. The Rome Treaty also permits the prosecutor to initiate an investigation on
her own motion, propio motu, subject to rigorous safeguards (Article 13(c); Article 15). Supporters

                                                  75
of an independent and effective Court felt that a prosecutor with propio motu powers was an
essential complement to Security Council and State Party referrals. Although such referrals are
important, they will not be sufficient if the Court is to be effective in punishing and deterring
international crimes. The Security Council is a political body that is often paralyzed by the veto
power of its five permanent members. States, in turn, are often reluctant to file complaints involving
another state‘s nationals, especially if doing so might interfere with diplomatic or economic relations
or might invite retaliatory complaints. As a consequence, an independent prosecutor is essential if
cases are to be brought in situations of heinous criminal conduct where there is little political will to
proceed.

        The Rome Treaty tightly circumscribes the prosecutor‘s propio motu authority. Before the
prosecutor can proceed, he/she must convince a panel of judges that ―there is a reasonable basis to
proceed with an investigation and that the case appears to fall within the jurisdiction of the Court‖
(Article 15(4)). The prosecutor also must defer to investigations by national authorities, unless a
panel of judges decides that those authorities are either unwilling or unable genuinely to investigate
or prosecute. Additionally, the Court and prosecutor must defer proceedings for a renewable 12
month period if requested to do so by the Security Council. Finally, as explained below, the
prosecutor is limited to initiating investigations in cases involving either conduct on the territory of
states that have accepted the Court‘s jurisdiction or acts committed by the nationals of such states
(Article 12). . . .

Preconditions to the Exercise of the Court‟s Jurisdiction

        Under the Rome Treaty, the Security Council can refer a situation involving the territory or
nationals of any state that is a party to the UN Charter, just as it already has the authority to establish
ad hoc tribunals without obtaining any consent or agreement from interested states. By contrast,
State Party referrals and propio motu investigations by the prosecutor will be sharply limited. When
those triggers are used, the Court will be able to move forward only if the situations involve conduct
that occurred on the territory of a state that has accepted the Court‘s jurisdiction or was committed by
the national of such a state (Article 12(2)). A state accepts the Court‘s jurisdiction either by ratifying
the treaty, although it can opt out of war crimes jurisdiction for seven years, or by filing an ad hoc
declaration that accepts the Court‘s authority (Article 12(1), (3)).

        Many, if not most, of the nations on whose territories the crimes subject to the Court‘s
jurisdiction are likely to be committed or whose nationals are likely to be responsible for such
crimes, will not be among early signatories to the Rome Treaty. The preconditions of territory and
nationality, therefore, mean that for many years the ICC will primarily be a Security Council court.
The hope among human rights groups and other supporters of the Court is that it eventually will
obtain universal acceptance, allowing it to serve future generations as an independent and effective
judicial institution. . . .

       Human rights groups argued that the principle of ―universal jurisdiction‖ should apply to the
Court. Universal jurisdiction is a widely accepted principle of international law that any state can
prosecute the perpetrators of genocide, crimes against humanity, and war crimes, without any

                                                    76
connection of territory or nationality.[53] As a practical matter, the Court‘s ability to address the
crimes within its jurisdiction would have been greatly enhanced if it were given universal
jurisdiction. Needless to say, the final treaty, with its strict preconditions to the exercise of
jurisdiction, reflected a substantial retreat from universal jurisdiction. This was perhaps the greatest
disappointment of the entire conference. . . .

Conclusion

        As is clear from this discussion, there were many compromises made by the countries at the
Rome Conference in order to arrive at a treaty that enjoyed broad support. The result falls short of
what human rights groups hoped for, just as it goes further in some areas than many states originally
desired. But the Rome Treaty provides a framework of international justice for future generations.
The cost in human lives and suffering exacted by the cycle of impunity has been too high not to give
this framework a chance to work.

                                                           *****

John R. Bolton, The Risks and Weaknesses of the International Criminal Court from
America’s Perspective, 64 L. & CONT. PROB. 167 (2001) (footnotes and citations omitted),
http://www.law.duke.edu/journals/lcp/articles/lcp64dWinter2001p167.htm.

[O]ne might assume that the ICC fits logically into history‘s orderly march toward the peaceful
settlement of international disputes, sought since time immemorial. But the real (if usually
unstated, and far distant) objectives of the ICC‘s supporters are to assert the supremacy of its
authority over nation states, and to promote prosecution over alternative methods for dealing
with the worst criminal offenses, whether occurring in war or through arbitrary domestic power.
This is but one of many reasons why the Statute of Rome is harmful to the national interests of
the United States, is unsound foreign policy, and is a threat to the independence and flexibility
that America's military forces need to defend U.S. national interests around the world.

In fact, the court and the prosecutor are illegitimate. The ICC‘s principal failing is that its
components do not fit into a coherent ―constitutional‖ design that delineates clearly how laws are
made, adjudicated, and enforced, subject to popular accountability and structured to protect
liberty. Instead, the court and the prosecutor are simply ―out there‖ in the international system.
This approach is clearly inconsistent with American standards of constitutional order, and is, in
fact, a stealth approach to erode our constitutionalism. . . .

The ICC‘s failing stems from its purported authority to operate outside (and on a plane superior
to) the U.S. Constitution, and thereby to inhibit the full constitutional autonomy of all three
branches of the U.S. government, and, indeed, of all states party to the statute. ICC advocates
rarely assert publicly that this result is central to their stated goals, but it must be for the court and
prosecutor to be completely effective. And it is precisely for this reason that, strong or weak in
its actual operations, the ICC has unacceptable consequences for the United States.

53
     For further discussion of the universal jurisdiction principle, see discussion infra, starting at 73.
                                                               77
The court‘s illegitimacy is basically two-fold: substantive and structural. As to the former, the
ICC‘s authority is vague and excessively elastic. This is most emphatically not a court of limited
jurisdiction. Even for genocide, the oldest codified among the three crimes specified in the Rome
Statute, there is hardly complete clarity on its meaning. The ICC demonstrates graphically all of
the inadequacies of how ―international law‖ is created.

The U.S. Senate, for example, cannot accept the statute's definition of genocide unless it is
prepared to reverse the position it took in February 1986 in approving the Genocide Convention
of 1948, when it attached two reservations, five understandings, and one declaration. By contrast,
Article 120 of the Rome Statute provides explicitly and without any exceptions that ―[n]o
reservations may be made to this [s]tatute.‖ Thus confronted with the statute‘s definition of
―genocide‖ that ignores existing American reservations to the underlying Genocide Convention,
the Senate would not have the option of attaching these reservations (or others) to any possible
ratification of the statute. Stripped of the reservation power, the United States would risk
expansive and mischievous definitional interpretations by a politically motivated court. Indeed,
the ―no reservations‖ clause appears obviously directed against the United States and its
protective Senate, and is a treaty provision we should never agree to.

The Rome Statute‖s two other offenses, crimes against humanity and war crimes, are even
vaguer, as is the real risk that an activist court and prosecutor can broaden the language of the
terms essentially without limit. It is precisely this risk that has led our Supreme Court to
invalidate state and federal criminal statutes that fail to give adequate notice of exactly what they
prohibit under the ―void for vagueness‖ doctrine. Unfortunately, ―void for vagueness‖ is largely
an American shield for civil liberties.

A fair reading of the treaty, for example, leaves the objective observer unable to answer with
confidence whether the United States was guilty of war crimes for its aerial bombing campaigns
over Germany and Japan in World War II. Indeed, if anything, a straightforward reading of the
language probably indicates that the court would find the United States guilty. A fortiori, these
provisions seem to imply that the United States would have been guilty of a war crime for
dropping atomic bombs on Hiroshima and Nagasaki. This is intolerable and unacceptable. . . .

But even beyond this risk is the larger agenda of many ICC supporters, of the nearly endless
articulation of ―international law‖ that continues ineluctably and inexorably to reduce the
international discretion and flexibility of nation states, and the United States in particular. In
judging the Rome Statute, we should not be misled by examining simply the substantive crimes
contained in the final document. We have been put on very clear notice that this list is illustrative
only, and just the start.

The fundamental problem with the latitude of the ICC‘s interpretive authority stems from the
decentralized and unaccountable way in which ―international law,‖ and particularly customary
international law, is made. It is one of those international law phenomena that just happens ―out
there,‖ among academics and activists. While the historical understanding of customary
international law was that it evolved from the practices of nation states over long years of
development, today we have theorists who speak approvingly of ―spontaneous customary

                                                 78
international law‖ that the cognoscenti discover almost overnight. This is simply not acceptable
to any free person. . . .

Particularly important for Americans, of course, is how all of this applies to us. Proponents of
international governance see the United States as the chief threat to the "new world order" they
are trying to create. Small villains who commit heinous crimes can kill individuals and even
entire populations, but only the United States can neutralize or actually thwart the ―new world
order‖ itself. Under our Constitution, any Congress may, by law, amend an earlier act of
Congress, including treaties, thus freeing the United States unilaterally of any obligation. The
Supreme Court made this point explicitly in the Chae Chan Ping [130 U.S. 581 (1889)] case:
       A treaty . . . is in its nature a contract between nations, and is often merely promissory in
       its character, requiring legislation to carry its stipulations into effect. Such legislation will
       be open to future repeal or amendment. If the treaty operates by its own force . . . , it can
       be deemed in that particular only the equivalent of a legislative act, to be repealed or
       modified at the pleasure of Congress. In either case the last expression of the sovereign
       will must control.
If treaties cannot legally ―bind‖ the United States, it need not detain us long to dismiss the notion
that ―customary international law‖ has any binding legal effect either. . . . If the American citadel
can be breached, advocates of binding international law will be well on the way toward the
ultimate elimination of the ―nation state.‖ Thus, it is important to understand why America and
its Constitution would have to change fundamentally and irrevocably if we accepted the ICC.
This constitutional issue is not simply a narrow, technical point of law, certainly not for the
United States, where the overwhelming popular and political consensus supports the superior
status of the Constitution over the claims of international law. Those who disagree must explain
to the people of America how the world‘s strongest and most free representative democracy,
simply by adhering to its own Constitution, somehow contravenes international law.

As troubling as the ICC‘s substantive and jurisdictional problems are, the problems raised by the
statute‘s main structures -- the court and the prosecutor -- are still worse. . . . What is at issue in
the prosecutor is the power of law enforcement, a powerful and necessary element of executive
power. Never before has the United States been asked to place any of that power outside the
complete control of our national government. Our main concern should not be that the prosecutor
will target for indictment the isolated U.S. soldier who violates our own laws and values, and his
or her military training and doctrine, by allegedly committing a war crime. Instead, our main
concern should be for our country‘s top civilian and military leaders, those responsible for our
defense and foreign policy. They are the real potential targets of the ICC's politically
unaccountable prosecutor. . . .

Indeed, the supposed ―independence‖ of the prosecutor and the court from ―political‖ pressures
(such as the Security Council) is more a source of concern than an element of protection.
―Independent‖ bodies in the United Nations system have often demonstrated themselves to be
more highly politicized than some of the explicitly political organs. True political accountability,
by contrast, is almost totally absent from the ICC, which lacks both any semblance of democratic
accountability or effective governmental oversight and control. If anything, ―public choice‖

                                                  79
analysis tells us that the ICC will be ―captured‖ not by governments but by NGOs and others
with narrow special interests, and the time and resources to pursue them.

The American concept of separation of powers, imperfect though it is, reflects the settled belief
that liberty is best protected when, to the maximum extent possible, the various authorities
legitimately exercised by government are placed in separate branches. So structuring the national
government, the framers of the Constitution believed, would prevent the excessive accumulation
of power in a limited number of hands, thus providing the greatest protection for individual
liberty. Continental European constitutional structures do not, by and large, reflect a similar set
of beliefs. . . .

By longstanding American principles, the ICC‘s structure completely fails to provide sufficient
accountability to warrant vesting the prosecutor with the statute's enormous power of law
enforcement. . . . This analysis underscores that our main concern is not the isolated prosecutions
of individual American military personnel around the world. It has everything to do with the
fundamental American fear of unchecked, unaccountable power.

Beyond the particular American interests adversely affected by the ICC, are the ICC‘s more
general deficiencies that will affect all nations. . . . The most basic error is the belief that the ICC
will have a substantial, indeed decisive, deterrent effect against the possible perpetration of
heinous crimes against humanity. Rarely if ever, however, has so sweeping a proposal had so
little empirical evidence to support it. The evidence demonstrates instead that the court and the
prosecutor will not achieve their central goal because they do not, cannot, and should not have
sufficient authority in the real world. . . . No one seriously disputes that the barbarous actions
about which ICC supporters complain are unacceptable, but they make a fundamental error in
trying to transform international matters of power and force into matters of law. . . . Recent
history is filled with cases where even strong military force or the threat of force failed to deter
aggression or the commission of gross abuses of human rights. . . . Deterrence ultimately
depends on perceived effectiveness, and the ICC fails badly on that point. Even if
administratively competent, the ICC‘s authority is far too attenuated to make the slightest bit of
difference either to the war criminals or to the outside world. . . . A weak and distant court will
have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against
humanity. Why should anyone imagine that bewigged judges in The Hague will succeed where
cold steel has failed? Holding out the prospect of ICC deterrence to the truly weak and
vulnerable is simply a cruel joke. . . .

The existing international record of adjudication is not encouraging. Few Americans argue that
the International Court of Justice (―ICJ‖) has garnered the legitimacy sought by its founders in
1945. This is more than ironic, because much of what was said then about the ICJ anticipates
recent claims by ICC supporters. These touching sentiments were not borne out in practice for
the ICJ, which has been largely ineffective when invoked and more often ignored in significant
international disputes. Indeed, the United States withdrew from the mandatory jurisdiction of the
ICJ after its erroneous Nicaragua decisions, and it has even lower public legitimacy here than the
rest of the United Nations.


                                                  80
Among the several reasons why the ICJ is held in such low repute, and what is candidly admitted
privately in international circles, is the highly politicized nature of its decisions. Although ICJ
judges supposedly function independently of their governments, their election by the United
Nation's General Assembly is a highly politicized matter, involving horse trading among and
within the United Nation's several political groupings. Once elected, ICJ judges typically vote
along highly predictable national lines except in the most innocuous of cases. We do not need a
repetition of that hypocrisy.

Although supposedly a protection for the ICC‘s independence, the provisions for the ―automatic
jurisdiction" of the court and the prosecutor are unacceptably broad. They constitute a clear break
from the basic premise of the ICJ that there is no jurisdiction without the consent of the state
parties. Because parties to the ICC may refer alleged crimes to the prosecutor, we can virtually
guarantee that some will, from the very outset, seek to use the court for political purposes.

Another significant failing is that the Rome Statute substantially minimized the Security
Council‘s role in ICC affairs. In requiring an affirmative Council vote to stop a case, the statute
shifts the balance of authority from the Council to the ICC. Moreover, a veto by a permanent
member of such a restraining Council resolution leaves the ICC completely unsupervised. This
attempted marginalization of the Security Council is a fundamental new problem created by the
ICC that will have a tangible and highly detrimental impact on the conduct of U.S. foreign
policy. The Council now risks having the ICC interfere in its ongoing work, with all of the
attendant confusion between the appropriate roles of law, politics, and power in settling
international disputes. . . .

One alternative to the ICC is South Africa‘s Truth and Reconciliation Commission. In the
aftermath of apartheid, the new government faced the difficult task of establishing and
legitimizing truly democratic governmental institutions while dealing simultaneously with earlier
crimes. One option was widespread prosecutions against the perpetrators of human rights
abuses, but the new government chose a different model. Under the Commission‘s charter, the
alleged offenders came before it and confessed past misdeeds. Assuming they confessed
truthfully, the Commission in effect pardoned them from prosecution. . . . One need not argue
that the South African approach should be followed everywhere, or even necessarily that it was
correct for South Africa. But it is certainly fair to conclude that that approach is radically
different from the ICC, which like most criminal law-enforcement institutions seeks vindication,
punishment, and retribution as its goals. . . .

. . . Our experience should counsel for a prudent approach that does not invariably insist on
international adjudication even over a course that the parties to a dispute might themselves agree
upon. Indeed, with a permanent ICC, one can predict that one or more disputants might well
invoke its jurisdiction at a selfishly opportune moment, and thus, ironically, make an ultimate
settlement of their dispute more complicated or less likely.

Another alternative, of course, is for the parties themselves to try their own alleged war
criminals. Indeed, there are substantial arguments that the fullest cathartic impact of the
prosecutorial approach to war crimes and similar outrages occurs when the responsible
population itself comes to grips with its past and administers appropriate justice. ICC advocates
                                                   81
usually disregard this possibility, either because it is inconvenient to their objectives, or because
it utilizes national judicial systems and agreements among (or within) nation states to implement
effectively. They pay lip service to the doctrine of ―complementarity,‖ or deference to national
judicial systems, but like so much else connected with the ICC, complementarity is simply an
assertion, utterly unproven and untested. In fact, if complementarity has any real substance, it
argued against creating the ICC in the first place, or, at most, creating ad hoc international
tribunals. . . .

Take Cambodia. Although the Khmer Rouge genocide is frequently offered as an example of
why the ICC is needed, its proponents never explain why the Cambodians should not themselves
try and adjudicate alleged war crimes. To create an international tribunal for the task implies the
incurable immaturity of Cambodians and paternalism by the international community. Repeated
interventions, even benign ones, by global powers is no substitute for the Cambodians coming to
terms with themselves.

ICC proponents frequently assert that the histories of the Bosnia and Rwanda tribunals
established by the Security Council demonstrate why a permanent ICC is necessary. The limited
and highly unsatisfactory experience with ad hoc tribunals proves precisely the contrary. Bosnia
is a clear example of how a decision to detach war crimes from the underlying political reality
advances neither the political resolution of a crisis nor the goal of punishing war criminals. ICC
proponents complain about the lack of NATO resolve in apprehending alleged war criminals.
But if not in Bosnia, where? If the political will to risk the lives of troops to apprehend indicted
war criminals there did not exist, where will it suddenly spring to life on behalf of the ICC? . . .

In short, much of the Yugoslav war crimes process seems to be about score settling rather than a
more disinterested search for justice that will contribute to political reconciliation. If one side
believes it is being unfairly treated, and holds this view strongly, then the ―search for justice‖ will
actually have harmed Bosnian national reconciliation by hardening pre-existing animosities. . . .

The experience of the Rwanda war crimes tribunal is even more discouraging. Widespread
corruption and mismanagement in that tribunal‘s affairs have led many to hope that it expires
quietly before doing more damage. At least as troubling, however, is the clear impression many
have that score settling among Hutus and Tutsis -- war by other means -- is the principal focus of
the Rwanda tribunal. Of course it is, and it is delusional to call this ―justice‖ rather than
―politics.‖

Although disappointed by the outcome in Rome, the Clinton Administration worked actively to
bring the United States into the ICC. It continued to negotiate with signatories in the hope of
obtaining sufficient amendments to allow the United States to sign on. In fact, whether the ICC
survives and flourishes depends in large measure on the United States. For those opposed to the
ICC, therefore, the correct policy now is to press Congress and subsequent administrations to
ignore the ICC in official U.S. statements, and attempt to isolate it through U.S. diplomacy, in
order to prevent it from acquiring any further legitimacy or resources. America's posture toward
the ICC should be ―Three Noes‖: no financial support, directly or indirectly; no cooperation; and


                                                  82
no further negotiations with other governments to ―improve‖ the ICC. Such a policy cannot
entirely eliminate the risks posed by the ICC, but it can go a long way in that direction.

The United States should raise our objections to the ICC on every appropriate occasion, as part of
our larger campaign to assert American interests against stifling, illegitimate, and unacceptable
international agreements. The plain fact is that additional ―fixes‖ to the ICC will not alter its
multiple inherent defects, and we should not try to do so. The United States has many alternative
foreign policy instruments to utilize that are fully consistent with our national interests, leaving
the ICC to the obscurity it so richly deserves. Signatories of the Rome Statute have created an
ICC to their liking, and they should live with it. We should not.

Bartram S. Brown, U.S. Objections of the Statute of the International Criminal Court: A Brief
Response, 31 N.Y.U. J. INT’L L. & POL. 855 (1999) (citations omitted):

C. Does the Statute Violate the Law of Treaties?

        One of the basic aspects of the law of treaties is the rule that ―[a] treaty does not create either
obligations or rights for a third State without its consent.‖ The U.S. government claims that the
Statute violates this rule because, in some cases, it could allow the ICC to try individuals for serious
international crimes without the consent of their national governments. The theory apparently is that
if the ICC tries an individual for a crime, that individual‘s home State in some extended sense is
being subjected to obligations under the Statute. This is a novel theory.

        Equating potential ICC jurisdiction over individuals with the idea that States are being
inappropriately ―bound‖ is a clever rhetorical device, but as legal reasoning it is completely
untenable. Like any treaty, the Statute creates obligations for States Parties: these include the
obligations to comply with requests for the surrender and transfer of suspects to the Court, to provide
requested evidence, to give effect to fines or forfeitures ordered by the Court, and to pay assessments
for the regular budget of the Court. None of these obligations applies to any non-party State, nor
does the exercise of criminal jurisdiction against an accused individual bind that individual‘s home
State.

        The ICC treaty will not bring about a radical change in international law or in the
international system. Whether they become parties to the treaty or not, all countries will retain their
fundamental rights, including the right to try those accused of committing crimes on their territory
and to try their own nationals for crimes committed anywhere. It will remain true that if a foreign
national is accused of committing a crime on the territory of the United States, either this country or
his home country legitimately could try him.

       Every State has certain legal rights with regard to its nationals, but these are neither unlimited
nor exclusive. General international law does not grant States exclusive jurisdiction over crimes
committed by their nationals. Instead, it recognizes that States may have concurrent jurisdiction
when the crimes committed affect the interests of more than a single State.


                                                    83
       No State, whether a party to the Statute or not, has a legitimate interest in shielding its
nationals from criminal responsibility for genocide, crimes against humanity or serious war crimes. .
..

        . . . The arrest of Chilean General Augusto Pinochet demonstrates widespread recognition
that any state has jurisdiction to try those accused of certain serious international crimes.[54] In light
of these developments there is little legal substance to the argument that ICC jurisdiction over U.S.
nationals would violate the rights of the United States.

III. The Political Issue: Is Complementary Jurisdiction Still Too Much for the United States?

        The ICC Statute does present some dangers to the legitimate political interests of the United
States. These are summarized in the ―worst case‖ scenario outlined by Ambassador David Scheffer
before the U.N. General Assembly:

       Consider the following. A State not a party to the treaty launches a campaign of terror against
a dissident minority inside its territory. Thousands of innocent civilians are killed. International
peace and security are imperilled. The United States participates in a coalition to use military force
to intervene and stop the killing. Unfortunately, in so doing, bombs intended for military targets go
astray. A hospital is hit. An apartment building is demolished. Some civilians being used as human
shields are mistakenly shot by U.S. troops. The State responsible for the atrocities demands that U.S.
officials and commanders be prosecuted by the international criminal court. The demand is
supported by a small group of other states. Under the terms of the Rome treaty, absent a Security
Council referral, the court could not investigate those responsible for killing thousands, yet our
senior officials, commanders, and soldiers could face an international investigation and even
prosecution.

          A number of important points can be made in response to this hypothetical scenario. The
first is that the Statute‘s complementarity regime comes close to answering the concerns raised. The
second is that the ICC will depend de facto upon the Security Council, and upon the United States,
for support. This dependence will ensure ICC moderation in any case involving the [U.S.]. . . .

A. The Complementarity Regime

        The ad hoc international tribunals for Yugoslavia and Rwanda were granted a sweeping, and
controversial, jurisdictional priority over national courts based on the authority of the Security
Council under Chapter VII of the U.N. Charter. The ICC takes a far more timid approach to
international criminal jurisdiction.

         U.S. military personnel and other U.S. nationals are unlikely to face investigation or
prosecution by the ICC because, under the principle of ―complementary‖ jurisdiction, the ICC must
defer to investigations or prosecutions conducted by national governments. The Statute‘s modest
goal is to establish a judicial ―safety net‖ in place for those rare cases where no national court system
54
     For discussion of the Pinochet case, see infra at 74-79.
                                                                84
is willing and able to investigate allegations of serious international crimes. Accordingly, the ICC
will be able to act only when no State with jurisdiction has investigated or prosecuted the case. Any
state, whether a party to the Statute or not, can assert a superior right to deal with a case simply by
investigating and/or prosecuting it. The ICC must defer to national proceedings even when they have
concluded that no prosecution is warranted. The only exception is where the state concerned ―is
unwilling or unable genuinely to carry out the investigation or prosecution.‖ Few countries, and
certainly not the United States, will fall within these exceptions. As long as the legal system has not
totally collapsed, there is no possibility that the United States could be considered unable to
prosecute. The United States could be found ―unwilling‖ to prosecute only if the proceedings were
found to be a complete sham by a first panel of judges and if that finding was confirmed on appeal.

        The principle of ICC deferral to national criminal proceedings is to be put into effect through
a very elaborate set of procedural requirements limiting the ICC Prosecutor‘s authority to proceed
with a case. These requirements enable any State that has investigated or is investigating a case to
challenge, at the very outset, any investigation of that case by the ICC. The ICC Prosecutor must
notify all States with jurisdiction of any investigations commenced except those based on a Security
Council referral. After receiving this notice, States have one month to notify the Prosecutor of their
own investigation. The ICC Prosecutor must defer to any State‘s investigations, even that of a non-
party State, unless a Pre-Trial Chamber decides otherwise based on the rules of complementarity.

B. The ICC Prosecutor

        The ICC Prosecutor‘s power to initiate investigations on his or her own authority itself has
been the focus of criticism. Some have expressed fear that the Prosecutor will target the U.S.
President and other top civilian and military officials. But the Statute contains many safeguards
against prosecutorial abuse. First of all, it specifies that the ICC is to prosecute only ―the most
serious crimes of international concern‖ and that a case is inadmissible, even when there is clear
evidence of a technical violation, unless it is ―of sufficient gravity to justify further action.‖

        A three-judge Pre-Trial Chamber will supervise the decisions of the Prosecutor concerning
admissibility and must also rule upon any request for orders or warrants. No accused person can be
tried until a Pre-Trial Chamber has ruled that the charges brought by the Prosecutor are supported by
sufficient evidence. These checks and balances are comparable to those found in the judicial
procedures of the United States.

        Perhaps the best protection against any hypothetical excesses of the Prosecutor lies in the
complementarity regime as discussed above. The United States will retain the first right to
investigate and deal with any case directed against a U.S. citizen whether this country decides to
accept the ICC treaty or not, and by doing so can divest the ICC of jurisdiction.

C. Practical Considerations: Should the United States Fear the ICC?

       The overall design of the Statute anticipates that in any particular case the ICC will operate
along one of two separate tracks. Cases initiated by the complaint of a State Party or by the

                                                  85
Prosecutor will follow one track, while the other track will be reserved for cases initiated by the
Security Council. The authority of the Security Council will make the Court more effective in a
number of ways.

        The consent of either the territorial state where relevant crimes allegedly have been
committed or the state of nationality of the accused is required in all ICC cases except for those
based on a Security Council referral. An especially strict procedural regime, based on a U.S.
proposal, ensures ICC deference to national investigations or prosecutions, but it does not apply to
cases initiated by decision of the Security Council. The Statute even anticipates possible funding
from the United Nations, ―in particular in relation to the expenses incurred due to referrals by the
Security Council.‖

        The ICC itself will have no army, no police force, nor any power to impose economic
sanctions on States. From the arrest of suspects to the production of evidence it will depend entirely
upon the cooperation of States in order to function. States ratifying the Statute accept the obligation
to ―cooperate fully with the Court in its investigation and prosecution of crimes within the
jurisdiction of the Court.‖ Enforcement of this obligation will fall in the first instance to the
Assembly of States Parties, the governing body of the ICC. The Statute does not grant this Assembly
any specific powers of enforcement; it merely refers to the Assembly any State Party failing to
cooperate as required by the Statute. When a case has been referred to the ICC by the Security
Council, the Statute provides for non-compliant States Parties to be referred to the Security
Council. Under the U.N. Charter, the Council has the authority to impose sanctions or even to
authorize the use of force if it considers this to be necessary for the maintenance of international
peace and security. At times, the ICC may need this muscular support.

        The fact that the ICC will depend upon the support of the Security Council will influence
strongly relations between the two bodies. As a permanent member of the Security Council capable
of vetoing any proposed decision, the United States has little reason to fear frivolous international
prosecutions. It would be both futile and irrational for the ICC to provoke an indispensable patron.
The safeguards implicit in this situation ensure that the United States will be able to protect its
legitimate interests without compromising the independence of the ICC.

         …Justice Louise Arbour, the [former] Prosecutor of the ICTY and the ICTR, recently
observed that there is more reason to fear that the international prosecutor will be impotent than there
is to fear that she will be overreaching. The ICC prosecutor, like Justice Arbour, will depend upon
the United States and the Security Council for essential political support and enforcement and will
have no reason to pursue frivolous prosecutions against the citizens of any state.

                                                  *****

President William Clinton, Statement on Signature of the International Criminal Court
Treaty, Washington, DC, December 31, 2000.55


55 Available at http://www.state.gov/www/global/swci/001231_clinton_icc.html.
                                                      86
        The United States is today signing the 1998 Rome Treaty on the International Criminal Court.
 In taking this action, we join more than 130 other countries that have signed by the December 31,
2000 deadline established in the Treaty. We do so to reaffirm our strong support for international
accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against
humanity. We do so as well because we wish to remain engaged in making the ICC an instrument of
impartial and effective justice in the years to come.

       The United States has a long history of commitment to the principle of accountability, from
our involvement in the Nuremberg tribunals that brought Nazi war criminals to justice, to our
leadership in the effort to establish the International Criminal Tribunals for the Former Yugoslavia
and Rwanda. Our action today sustains that tradition of moral leadership.

         Under the Rome Treaty, the International Criminal Court (ICC) will come into being with the
ratification of 60 governments, and will have jurisdiction over the most heinous abuses that result
from international conflict, such as war crimes, crimes against humanity and genocide. The Treaty
requires that the ICC not supercede or interfere with functioning national judicial systems; that is, the
ICC Prosecutor is authorized to take action against a suspect only if the country of nationality is
unwilling or unable to investigate allegations of egregious crimes by their national. The U.S.
delegation to the Rome Conference worked hard to achieve these limitations, which we believe are
essential to the international credibility and success of the ICC.

       In signing, however, we are not abandoning our concerns about significant flaws in the
Treaty. In particular, we are concerned that when the Court comes into existence, it will not only
exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction
over personnel of states that have not. With signature, however, we will be in a position to influence
the evolution of the court. Without signature, we will not.

        Signature will enhance our ability to further protect U.S. officials from unfounded charges
and to achieve the human rights and accountability objectives of the ICC. In fact, in negotiations
following the Rome Conference, we have worked effectively to develop procedures that limit the
likelihood of politicized prosecutions. For example, U.S. civilian and military negotiators helped to
ensure greater precision in the definitions of crimes within the Court‘s jurisdiction.

         But more must be done. Court jurisdiction over U.S. personnel should come only with U.S.
ratification of the Treaty. The United States should have the chance to observe and assess the
functioning of the Court, over time, before choosing to become subject to its jurisdiction. Given
these concerns, I will not, and do not recommend that my successor, submit the Treaty to the Senate
for advice and consent until our fundamental concerns are satisfied.

        Nonetheless, signature is the right action to take at this point. I believe that a properly
constituted and structured International Criminal Court would make a profound contribution in
deterring egregious human rights abuses worldwide, and that signature increases the chances for
productive discussions with other governments to advance these goals in the months and years
ahead.

                                                   87
                                                 *****

        The George W. Bush Administration dwelled on the concerns expressed by the Clinton
administration about the special vulnerability of U.S. military forces to ―frivolous‖ and ―politicized
prosecution‖ and decided against becoming a State party to the Rome Statute International Criminal
Court (ICC). In fact, the U.S. attempted to ―withdrawal‖ its signature from the Rome Statute.
http://www.state.gov/r/pa/prs/ps/2002/9968.htm; see supra chapter 4.:

         The U.S. has taken several steps to try to insulate U.S. military personnel from being subject
to the jurisdiction of the ICC. The primary tool for accomplishing this objective has been Article 98
of the ICC Statute, which the U.S. has used to conclude bilateral agreements exempting U.S. citizens
from rendition to the jurisdiction of the ICC. Article 98(2) of the ICC Statute reads ―The Court may
not proceed with a request for surrender which would require the requested State to act inconsistently
with its obligations under international agreements pursuant to which the consent of a sending State
is required to surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.‖ The U.S. interpretation
has met with considerable opposition, as has its pursuit of the bilateral agreements.56 As of
November 2005, around 100 countries had signed such agreements, though fewer than 30% of them
have ratified the bilateral agreements. Coalition for the International Criminal Court, Overview of
the United States‘ Opposition to the International Criminal Court, Nov. 1, 2005.57

       The United States‘ actions seem to contrast sharply with Section 517(b) of the Foreign
Relations Authorization Act, Fiscal Years 1994 and 1995 which states:

        It is the sense of the Senate that--
        (1) the establishment of an international criminal court with jurisdiction
        over crimes of an international character would greatly strengthen the
        international rule of law;
        (2) such a court would thereby serve the interests of the United States and
        the world community; and
        (3) the United States delegation should make every effort to advance this
        proposal at the United Nations.

Public Law 103-236, 1994. In comparison, just seven years later in 2002, the United States passed
the American Servicemembers Protection Act. The act prohibits cooperation with the International
Criminal Court; restricts US participation in UN peacekeeping operations; prohibits the direct or
indirect transfer of classified national security information, including law enforcement information,
to the International Criminal Court, even if no American is accused of a crime; prohibits US military


56 For a comprehensive statement of the objections to the U.S. positions see International Criminal Court: US
Efforts To Obtain Impunity For Genocide, Crimes Against Humanity And War Crimes,
available at http://web.amnesty.org/library/index/engIOR400252002?Open&of=eng-393.
57 Available at http://www.iccnow.org/documents/CICCFS_US%20Opposition%20toICC_FINAL_eng%20_2_.pdf.
 Fifty-four countries have stated publicly their refusal to sign such agreements.
                                                     88
assistance to parties to the International Criminal Court; and preauthorizes military intervention to
free members of the armed forces of the US and certain other persons detained or imprisoned by or
on behalf of the International Criminal Court.58

      Congress passed the Nethercutt Amendment in 2004 and renewed the amendment in 2005.
The amendment stated that

        [No funds] under the heading ‗Economic Support Fund‘ may be used to provide assistance to
        the government of a country that is a party to the International Criminal Court and has not
        entered into an agreement with the United States pursuant to Article 98 of the Rome Statute
        preventing the International Criminal Court from proceeding against United States personnel
        present in such country.

Public Law 109-102, Sec. 574(a), 2005. At the president‘s discretion, waivers can be granted to
countries in need of funds but have as of yet not formed a bilateral agreement with the United States
that exempts the American military from prosecution in the ICC. On March 12, 2006, while visiting
Chile, United States Secretary of State Condoleezza Rice may have signaled the Bush
administration‘s difficulty with implementing its policies regarding countries that cooperate with the
ICC. She stated that reducing military aid to countries that are struggling to fight terrorism or drug
trafficking is ―sort of the same as shooting ourselves in the foot.‖ Steven R. Weisman, U.S. Rethinks
Its Cutoff of Military Aid to Latin American Nations, N.Y. TIMES, Mar. 12, 2006.

        In addition, the U.S. unsuccessfully encouraged the U.N. Security Council to exempt U.N.
peacekeepers permanently from the ICC‘s jurisdiction. When that effort failed, the U.S. vetoed a
Security Council resolution to extend the U.N. peacekeeping mission in Bosnia on June 30, 2002.59
On July 12, 2002, the Security Council reached a compromise that extended the mission,60 and
passed Resolution 1422, which provided that all U.N. peacekeepers from non-ICC State parties (i.e.
the U.S.) would be exempt from ICC investigation or prosecution for one year, renewable yearly for
as long as necessary.61 The Security Council took the authority to grant such an exemption from
Article16 of the ICC Statute, which states that the Security Council may defer or suspend an
investigation based on its determination of a threat to international security under Chapter VII of the
U.N. Charter. There exists some question as to whether the U.S. veto was the kind of threat
envisaged under Chapter VII. Hence, it is possible that in providing the exemption, the Security
Council acted outside the scope of its authority as outlined in Article 16 and contrary to the
intentions of the States parties to the ICC Statute. Article 16 may also leave room for the ICC to

58 See http://www.amicc.org/usinfo/congress_texts.html.
59 See Security Council Rejects Draft Proposing Extension Of United Nations Mission In Bosnia And Herzegovina,
U.N. Press Release SC/7437, June 30, 2002, available at
http://www.un.org/News/Press/docs/2002/SC7437.doc.htm.
60 U.N. Security Council Resolution 1423, UN. Doc. S/RES/1423 (2002).
61 Resolution 1422 of the UN Security Council, UN. Doc. S/RES/1422 (2002). There is a link to the document
available at http://www.un.org/Docs/scres/2002/sc2002.htm. On June 12, 2003, the Security Council again
extended for a year the exemption for officials and personnel of nations that had not ratified the Statute of the
International Criminal Court. U.N. Doc. S/Res/1487 (2003), available at http://ods-dds-
ny.un.org/doc/UNDOC/GEN/N03/394/51/PDF/N0339451.pdf?OpenElement.
                                                       89
examine whether the U.N. Security Council request was properly made under a resolution adopted
under Chapter VII. However, the United States faced too many abstentions (including Brazil, China,
France, and Spain) to renew its one year exemption in 2004. The United States then changed its
strategy and sought to pass a final one year extension of the exemption. With a rare showing of
opposition to the United States by the Security Council, the second proposal also failed, thus
eliminating the peacekeeping exemptions. Evelyn Leopold and Irwin Arieff, US Drops UN
Measures to Shield its Soldiers Abroad, REUTERS, June 23, 2004.

The First Investigations and Indictments Issued by the ICC

         In July 2003, the ICC Office of the Prosecutor initiated investigations of crimes in the Ituri
region of the Democratic Republic of the Congo and within two years, the ICC had made its first
ever arrest. Thomas Lubanga, the leader of the militia group the Union of Congolese Patriots active
in the Ituri district, was arrested and transferred to the ICC on March 17, 2005. The ICC‘s Pre-Trial
Chamber I ―found that there are reasonable grounds to believe [that] Lubanga had committed the
following war crimes: conscripting and enlisting children under the age of fifteen years and using
them to participate actively in hostilities.‖ Press release, International Criminal Court, First Arrest for
the International Criminal Court (Mar. 17, 2006).62 The DRC has cooperated with the ICC as
evidenced by DRC President Joseph Kabila‘s 2004 request that the ICC expand its investigations
beyond the Ituri and into the rest of the country. See Chapter 9 for historical background of the
DRC.

        In January 2004, the violence of a nineteen year old conflict led Ugandan President Yoweri
Museveni to refer the criminal acts of Uganda‘s Lord‘s Resistance Army (LRA) to the ICC. The
LRA is said to be responsible for the displacement of up to 1.4 million people, as well as the
kidnapping of more 20,000 children, with many being forced into sexual slavery or armed combat.
President Museveni‘s referral of a case in his own country to the ICC was the first by a head of state.
After initial investigations, in October 2005, the ICC issued indictments, its first ever, of Joseph
Kony and four other leaders of the LRA.

         The LRA is notorious for its gunpoint conscription of children as soldiers and sex
         slaves; those who refuse to serve in those roles are often mutilated in front of their
         families. And to this day, thousands of children, known as the ―night commuters,‖
         travel from their rural homes to safer confines each evening to avoid abduction by the
         LRA.

         For these reasons, and for the fact that Uganda‘s president, Yoweri Museveni,
         voluntarily ceded national jurisdiction over these crimes to the ICC, Kony is the ideal
         first target of an indictment. The politically savvy Ocampo, meanwhile, may have
         had the court‘s main detractors in the Bush administration in mind with this
         indictment: Museveni is an American ally, and the LRA consistently appears in State
         Department reports on foreign terrorist organizations.


62 Available at http://www.icc-cpi.int/press/pressreleases/132.html.
                                                         90
        And therein lies the rub that this indictment exposes: Now that an international man
        of dread has been indicted by the ICC, U.S. law makes it illegal for the United States
        to aid in his apprehension. The American Servicemembers Protection Act (ASPA),
        which was passed under [Senator] Jesse Helms‘ watchful eye in 2002, prohibits any
        agency of the U.S. government from aiding the ICC. For the moment, it is illegal for
        the U.S. government to help the only court that is seeking the apprehension of a man
        the United States considers the leader of a terrorist group.

Mark Leon Goldberg, Hunting Kony, AMERICAN PROSPECT, Oct. 7, 2005.63 At the time of
publication, no arrests had been made.

       On March 31, 2005, the Security Council issued Resolution 1593 referring the violence in the
Darfur Region of Sudan to the ICC. UN Security Resolution 1593, Mar. 31, 2005.64 The Sudanese
government has claimed that its own special court provides a transparent and sufficient means for
prosecuting those that have committed crimes and has vowed to never turn over any of its citizens to
the ICC. See Mark Oliver, Sudan Rejects ICC Extradition Calls, GUARDIAN, June 29, 2005.65 At the
time of publication, the ICC continued to investigate, without the cooperation of Sudan‘s
government‘s, and was yet to issue any indictments.

         Resolution 1593 marks the Security Council‘s first referral to the ICC. Because Sudan is not
a party to the ICC, a Security Council referral was the only way for the ICC to establish jurisdiction
over the crimes. The United States decision not to veto the resolution displays some acquiescence
to the use of the ICC on the part of the United States. As the ICC seeks to establish itself as a true
international criminal court, the United States criticism has created the biggest obstacle for the court
to this point. Thus far, the ICC appears to be approaching its role with caution, choosing carefully
which cases to pursue in order to avoid political conflict with the United States.

        NOTES AND QUESTIONS

1.     As of 14 November 2005, 100 countries had ratified the Rome Statute of the International
Criminal Court: twenty-seven from Africa, twelve from Asia, fifteen from Eastern Europe, twenty-
one from Latin America and the Caribbean, and twenty-five from Western Europe and other states.66


2.      Given the low likelihood that abusive governments will ratify the ICC treaty and the frequent
inability of the Security Council to reach consensus on enforcement measures, how would you assess
Fowler‘s belief that ―over time the [ICC] offers real promise for ending the cycle of impunity for the
worst human rights atrocities and increasing deterrence of these horrible crimes?‖

3.      Some critics of the ICC have argued that the existence of a permanent criminal court will tie

63 Available at http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=10392.
64 Available at http://daccessdds.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement
65 Available at http://daccessdds.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement
66 See the International Criminal Court‘s website at http://www.icc-cpi.int/asp/statesparties.html
                                                   91
the hands of peace negotiators by eliminating the possibility of exchanging amnesties for peace. See,
e.g., Marc A. Thiessen, How Not to Get Rid of Dictators; No Tyrant Will be Willing to Give up
Power if He Ends up on Trial, WKLY. STANDARD, July 17, 2000. It is not entirely clear from the text
of the ICC treaty whether national amnesties will preclude exercise of the Court‘s jurisdiction. One
negotiator in Rome has written that the answer lies in the precise wording of the complementarity
provisions. Under Article 17 of the treaty, a case is inadmissible where a state is conducting an
investigation or has done so and decided not to prosecute. Where an amnesty or other truth
commission process does not meet the test of a ―criminal investigation,‖ the ICC would be free to
act. See John T. Holmes, The Principle of Complementarity, in THE INTERNATIONAL CRIMINAL
COURT: THE MAKING OF THE ROME STATUTE, 77 (Roy Lee ed., 1999). Others, however, see the
ambiguity in the ICC treaty as an intended means of permitting the court‘s judges to recognize
national amnesties. See Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the
International Criminal Court, 32 CORNELL INT‘L L.J. 507, 522 (1999).

4.      Some international human rights groups criticized the indictments as having a chilling effect
on mediation attempts between the LRA and the Ugandan government. Now that the ICC is actively
investigating the LRA‘s crimes against humanity, what incentive does the LRA have to lay down its
arms and cooperate with the Ugandan government?

5.      The ICC‘s first investigations have all related to developing African countries. Is the ICC
just another incarnation of colonialism? Will the ICC be a truly international court any have the
political power to prosecute crimes in the wealthy nations of the Northern Hemisphere?

6.      If John Bolton‘s view of international law were accepted, how would the United States be
able to argue to other nations that they should comply with their treaty or other international legal
obligations?

7.      Do you agree with the assessment of David J. Scheffer, The United States and the
International Criminal Court, 93 A.J.I.L. 12 (1999) that the ICC will pose a danger posed to
legitimate military intervention and peacekeeping operations? Note the high threshold included in
the treaty‘s definition of war crimes and crimes against humanity. The ICC will have jurisdiction
over crimes against humanity only when such acts are ―committed as part of a widespread or
systematic attack directed against any civilian population.‖ War crimes will fall under the Court‘s
jurisdiction ―in particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes.‖

8.     The ICC treaty established a Preparatory Commission to draft the remaining textual building
blocks of the ICC, including the Court‘s procedural and evidentiary rules and a document defining
the elements of each of the crimes listed in the treaty. In June 2000, the Preparatory Commission
completed work on these two documents, which will be presented for approval at the first meeting of
the Assembly of States Parties after 60 nations have ratified. See William M. Reilly, U.S., opponents
claim win on International court, UPI, June 30, 2000.

       All U.N. Member States and Observers were invited to participate in the working sessions of

                                                 92
the Preparatory Commission, including states which had not signed the ICC treaty as well as those
which had voted against its adoption in Rome. The United States presented several proposals
relating to the procedural rules, including some designed to achieve important U.S. objectives which
had been rejected at the treaty conference in Rome. For example, the U.S. proposed one rule which
opponents described as an effort to create a de facto ―official acts‖ exception to the Court‘s
jurisdiction.67 See Barbara Crossette, U.S. Pushes to Weaken World Court on Atrocities, N.Y.
TIMES, June 12, 2000, at A9.

        9.       Determining the maximum penalty to be imposed by the ICC produced much debate
in Rome. A group of states whose domestic law includes the death penalty advocated strongly for its
inclusion in the ICC treaty. In their view, exclusion of the death penalty might be construed as a
progressive development in international law, thereby undermining the legitimacy of their own death
penalty laws. See Rolf Einar Fife, Penalties, in THE INTERNATIONAL CRIMINAL COURT: THE
MAKING OF THE ROME STATUTE, 319, 330 (Roy Lee ed., 1999). A larger contingent of states,
including States Party to the Second Optional Protocol to the International Covenant on Civil and
Political Rights and other international and regional instruments which prohibit the death penalty,
made clear that they could not participate in an ICC which imposed the death penalty. Similar
debate surrounded the penalty of life imprisonment. Id. Several Latin American countries view
imposition of that penalty as a human rights violation, including Brazil, where life sentences are
prohibited by the constitution. See BRAZ. CONST., title II, chap. I, Art. 5. XLVII. The final text of
the treaty establishes a maximum penalty of life imprisonment ―when justified by the extreme gravity
of the crime and individual circumstances of the convicted person.‖ See Rome Statute of the
International Criminal Court, Art. 77, U.N. Doc. A/CONF.183/9 (1999). As part of a compromise
package on the penalties provisions, the treaty also includes a provision stating that ―nothing [in this
treaty] affects the application by States of penalties prescribed by their national legislation, nor the
law of States which do not provide for penalties prescribed in this [treaty].‖ See id., Art. 80. In
addition to imposing prison sentences, the ICC may also order a convicted person to make
reparations to, or in respect of, victims, including compensation and restitution. See id., Art. 75.

10.     Although the ―opt-in‖ approach to the ICC‘s ratione materiae was ultimately rejected in
favor of automatic jurisdiction over all crimes listed in the treaty, under Article 124 of the treaty a
state may declare upon ratifying the treaty that it does not accept the jurisdiction of the Court over
war crimes for a period of seven years. See id., Art. 124. Human rights groups labeled the provision
a ―license to kill.‖ See Amnesty International, Open Letter by Amnesty International‟s Secretary
General Urging All Governments to Ratify the Statute of the International Criminal Court As Soon
As Possible, AI Index: IOR 40/23/98 (1998). The Article 124 opt-out clause is widely viewed as
having been included in the treaty to win France‘s support for the treaty. Like the U.S., France
feared politically-motivated prosecutions of its peacekeepers, and had proposed a 10-year opt-out
period. See ―French Position on War Crimes Sours French Support for Prosecutor, Reparations,‖ 1
ON THE RECORD, Issue 18, July 11, 1998.68 Upon ratifying the ICC treaty in July 2000, the French
National Assembly elected not to make a declaration under Article 124.


67 The official acts exception is described supra at 78-79.
68 Available at http://www.advocacynet.org.
                                                         93
11.     For additional reading on the International Criminal Court, see:

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

M. CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY
HISTORY (1998);

Remigius Chibueze, United States Objection to the International Criminal Court: A Paradox of “Operation
Enduring Freedom”, 9 ANN. SURV. INT‘L & COMP. L. 19 (2003);

Council of Foreign Relations, Toward an International Criminal Court? (1999);

Benjamin B. Ferencz, Misguided Fears About the International Criminal Court, 15 PACE INT‘L L. REV. 223
(2003);

Jean Galbraith, The Bush Administration‟s Response to the International Criminal Court, 21 BERKELEY J.
INT‘L L. 683 (2003);

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

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

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

INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT
(Dinah Shelton ed., 2000);

THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE (Roy Lee ed. 1999);

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

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

John F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal
Prosecution, 12 HARV. HUM. RTS. J. 1 (1999);

Kenneth Roth, The Court the U.S. Doesn‟t Want, N.Y. REV. BOOKS, November 19, 1998;

THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES (Dominic McGoldrick et al.
eds., 2004).

Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions, and the International
Criminal Court, 14 EUR. J. INT‘L L. 481 (2003). (Outlines the tensions between the responsibility of the ICC to
                                                      94
prosecute international crimes and state actions regarding amnesties, including those granted by truth
commissions);

Alfred P. Rubin, A Critical View of the Proposed International Criminal Court, 23 FLETCHER F. WORLD AFF.
139 (Fall 1999);

Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88
GEO. L. J. 381 (2000);

WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (2001).(not in a second
edition)

Eric P. Schwartz, The United States and the International Criminal Court: The Case for “Dexterous
Multilateralism,” 4 CHI. J. INT‘L L. 223 (2003);

Symposium, The International Criminal Court: Consensus and Debate on the International Adjudication of
Genocide, Crimes Against Humanity, War Crimes, and Aggression, 32 CORNELL INT‘L L.J. 431 (1999);

Charles Villa-Vicencio, Why Perpetrators Should Not Always be Prosecuted: Where the International
Criminal Court and Truth Commissions Meet, 49 EMORY L.J. 205 (2000);

U.S. Department of State, Fact Sheet:                     The   International   Criminal   Court   (2002),
http://www.state.gov/t/pm/rls/fs/2002/23426.htm#1;

U.S. Department of State, Article 98 Agreements and the International Criminal Court (2006),
http://www.state.gov/t/pm/art98/;

Sabine von Schorlemer, Human Rights: Substantive and Institutional Implications of the War Against
Terrorism, 14 EUR. J. INT‘L L. 265 (2003).


G. PROSECUTING HUMAN RIGHTS VIOLATORS IN FOREIGN NATIONAL COURTS

        Victims unable to secure redress in domestic courts or international fora have increasingly
pursued human rights abusers in the criminal courts of foreign countries. During the 1990s, national
courts in Europe tried cases arising out of atrocities committed in the former Yugoslavia and
Rwanda, while victims of abuses committed in Latin America and elsewhere in Africa in the 1980s
successfully initiated transnational prosecutions of former government officials who were living or
traveling abroad.

        For centuries, international law has recognized that every state has an interest in prosecuting
―universal‖ crimes such as piracy and slave-trading, which are beyond the control and jurisdiction of
any single state. At Nuremberg, the notion of ―universal jurisdiction‖ was extended to cover
genocide and crimes against humanity. See discussion supra at 28. National courts in Israel, France,
Spain and elsewhere relied on this source of jurisdiction in trying individuals accused of war-time
atrocities. Id. Universal jurisdiction was, however, rarely invoked with respect to other human
rights abuses.
                                                     95
        In reading the following materials, students should identify the specific legal and political
developments which have increased the willingness of national courts to exercise universal
jurisdiction over human rights crimes.

                                               *****

European Attempts to Prosecute Pinochet

        On October 16, 1998, police in London arrested the former leader of Chile, Augusto
Pinochet, who had traveled to the U.K. to receive medical treatment for an ailing back. The
authorities in London acted on an arrest warrant issued by a Spanish court that sought to try Pinochet
for human rights abuses committed in Chile between 1973 and 1990. Pinochet challenged the
validity of the warrant and the High Court held that as a former head of state he was entitled to
immunity from prosecution. The Crown Prosecution Service, acting on behalf of the government of
Spain, appealed the ruling to the House of Lords.

         Lord Nicholls and his four colleagues announced their views one-by-one in order of seniority.
 First, two judges spoke at length against the appeal, then two judges, including Lord Nicholls, spoke
in favor of granting the appeal. The last judge to speak was Lord Hoffman, who said only, ―My
Lords. I have had the advantage of reading in draft the speeches of my noble and learned friends
Lord Nicholls of Birkenhead and Lord Steyn and for the reasons they give I too would allow this
appeal.‖ Lawyers for Pinochet, however, challenged the Lords‘ decision because Hoffman had
previously been involved in fund-raising activities for Amnesty International and Amnesty
International had been permitted to present argumentation in favor of the extradition of Pinochet to
Spain for trial. Although no actual bias was evident, the House of Lords decided unanimously on
December 17, 1998, to vacate the initial decision and to set argument before an entirely new panel of
seven judges. See In re Pinochet, 38 I.L.M. 430 (House of Lords 1999).

         The House of Lords rendered a second substantive judgment on March 24, 1999. See Regina
v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet, 38 I.L.M.
581 (House of Lords 1999). By a vote of six judges to one, the Law Lords upheld the decision
denying Pinochet immunity, but based their judgment on narrower grounds than those relied upon by
the initial panel. The second judgment turned in part on the House of Lords‘ interpretation of the
―dual criminality‖ rule of extradition law. That rule permits extradition only in cases where the
alleged offense is a crime under the laws of both the requesting state and the sending state. The High
Court had decided that the rule was satisfied if the alleged act constituted a crime in both countries
on the date of the extradition request. The second panel of the House of Lords interpreted the rule to
require that both states have jurisdiction over acts of torture committed abroad at the time of their
commission. The House of Lords therefore ruled that Pinochet could be extradited only with respect
to charges of torture and conspiracy to commit torture committed after December 8, 1988, when not
only the United Kingdom, but also Chile and Spain had ratified the Convention Against Torture
which provides for universal jurisdiction over torture. After the United Kingdom on September 29,
1988, adopted the required criminal law provision against torture outside of its borders, the United

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Kingdom became a State Party to the Convention Against Torture on December 8, 1988. (The
Convention had come into force for Spain in 1987 and for Chile earlier in 1988.) Most of the
killings and torture during the Pinochet period, however, occurred during the period of 1973-75, but
some serious violations occurred thereafter.

       With the immunity question settled, the case then returned to magistrate‘s court. On October
8, 1999, Magistrate Ronald Bartle ruled that the requirements of the governing extradition agreement
had been satisfied and that Pinochet could be extradited. Significantly, the magistrate held that
unresolved ―disappearances‖ could be considered under the conspiracy to torture charges, regardless
of when committed. The magistrate reasoned that the effect of a disappearance on the victim‘s
family could amount to torture and that ―disappearances‖ constituted on-going crimes.

       In March 2000, U.K. Home Secretary Jack Straw decided that Pinochet was medically unfit
to stand trial, thus rejecting the extradition requests of Spain, as well as Belgium, France, and
Switzerland, which had also sought to try Pinochet. For discussion of attempts to hold Pinochet
accountable in Chile, see supra at 17-19.

                                               *****

Human Rights Watch, The Pinochet Precedent: How Victims Can Pursue Human Rights
Criminals Abroad (2000):

The Pinochet Case - A Wake-Up Call to Tyrants and Victims Alike

        …This brochure attempts to outline the key elements of the ―Pinochet precedent‖-- in
particular ―universal jurisdiction‖-- so that victims and human rights activists can press for other
state criminals to be brought to justice abroad, and so that they understand the many obstacles to
doing so.

What is Universal Jurisdiction?

        The most striking feature of the Pinochet case was that a Spanish judge had the authority to
order Pinochet‘s arrest for crimes committed mostly in Chile and mostly against Chileans. This
authority derives from the rule of ―universal jurisdiction‖: the principle that every state has an
interest in bringing to justice the perpetrators of particular crimes of international concern, no matter
where the crime was committed, and regardless of the nationality of the perpetrators or their victims.

        Normally, jurisdiction over a crime depends on a link, usually territorial, between the
prosecuting state and the crime itself. But, as one leading lawyer said, ―in the case of crimes against
humanity that link may be found in the simple fact that we are all human beings.‖ A principal
pragmatic reason why international law provides for universal jurisdiction is to make sure that there
is no ―safe haven‖ for those responsible for the most serious crimes.



                                                   97
       . . . As a United States court said in the landmark Filartiga case,[69] in which the family of a
Paraguayan torture victim living in the U.S. brought a civil suit against his torturer who had come to
the U.S.: ―the torturer has become like the pirate and slave trader before him hostis humanis generis,
an enemy of all mankind.‖

What Crimes Give Rise to Universal Jurisdiction?

        To determine which crimes give rise to universal jurisdiction under international law, we
look at international treaties--such as the U.N. Convention against Torture, or the Geneva
Conventions for war crimes--and the general custom of states (―customary international law‖) under
which genocide and ―crimes against humanity‖ are considered crimes of universal jurisdiction. In
each case, however, the key to determining whether a prosecution can actually be brought based on
universal jurisdiction will be the laws of the particular state in which the case is brought (the
―prosecuting state‖). Among the human rights crimes subject to universal jurisdiction under
international law are [the following:]

Torture

        The 1984 U.N. Convention against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment--under which General Pinochet lost his immunity and was ruled subject to
extradition--provides that ―[t]he State Party in the territory under whose jurisdiction a person alleged
to have committed [torture] is found shall, . . . if it does not extradite him, submit the case to its
competent authorities for the purpose of prosecution.‖ . . .

        As of February 2000, 118 states had ratified the Torture Convention. Because of the
Convention‘s clear and unambiguous command, torture charges may be the most fruitful in
extraterritorial cases brought in these countries, as illustrated by the Pinochet . . . [case].
The Convention defines torture as ―any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted 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 Convention calls for punishment not only of the person who actually carries out the
act of torture, but of those who are complicit or participate in the acts.

Genocide

        The widely-ratified U.N. Convention on the Prevention and Punishment of the Crime of
Genocide defines genocide as ―any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in whole or in part; (d)

69 See chapter 12 infra.
                                                  98
Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of
the group to another group.‖ The killings of Tutsis in Rwanda, Kurds in Iraq and Muslims in Bosnia
are recent examples of genocide. Spain accused Pinochet of genocide, using a broader definition of
genocide found in Spanish law which also punishes attempts to eliminate political groups, but
Britain did not retain this accusation.

        Although the Genocide Convention does not specifically say so, under customary
international law any state may bring to justice, on the basis of universal jurisdiction, someone
accused of genocide.

Crimes Against Humanity

        The concept of ―crimes against humanity‖ was first codified in the Charter for the Nuremberg
Tribunal that was created after World War II to try Nazi leaders. The Statute of the emerging
International Criminal Court (ICC) (article 7) now defines crimes against humanity as certain acts
such as murder, extermination, torture, enslavement, ―disappearance,‖ rape, sexual slavery, etc. when
committed as part of a ―widespread or systematic attack directed against any civilian population,
with knowledge of the attack.‖ …. In each case, it is the widespread or systematic nature of the
crime that makes it a crime against humanity.

        Under customary international law, universal jurisdiction exists for crimes against humanity.
A note of caution is in order, however. Few states (Belgium, France and Israel are three examples)
have yet defined and codified crimes against humanity in their national legislation. Many states will
not bring or entertain prosecutions based on a crime not set forth in its own laws--even one
recognized under international law and which includes acts (murder, torture) already prohibited in
national law. In addition, national judges unschooled in international law, as the British lords in the
Pinochet case, are less comfortable using concepts of customary law than they are in applying the
clear language of treaties. Therefore, from a practical viewpoint, ―crimes against humanity‖ may not
be as useful in transnational prosecutions as torture or war crimes which have been more widely
defined in international treaties and incorporated into national legislation.

War Crimes

        Traditionally, the concept of war crimes was used to refer to crimes in international armed
conflicts, and more precisely to ―grave breaches‖ of the four Geneva Conventions of 1949 and their
first Additional Protocol of 1977. However, it can be argued that recent developments have
expanded this concept to include serious violations of the customs and laws of war committed either
in an international or internal armed conflict.

       It is undisputed that universal jurisdiction exists over grave breaches of the Geneva
Conventions and the first Additional Protocol of 1977. Each of the four Geneva Conventions, which
have been ratified by virtually every country, prescribe that ―[e]ach High Contracting Party shall be
under the obligation to search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of their nationality, before

                                                  99
its own courts.‖

        . . . Serious violations of the laws and customs applicable in international armed conflict,
even if not considered ―grave breaches‖ of the Geneva Conventions probably also give rise to
universal jurisdiction, allowing but not always requiring a state to prosecute those responsible. This
category includes: intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities; intentionally directing attacks against civilian
objects (objects which are not military objectives); launching an attack knowing that it will cause
incidental loss of life or injury to civilians or damage to civilian objects; . . . physical mutilation or
medical or scientific experimentation on unwilling individuals; pillaging; employing certain types of
indiscriminate weapons; rape, sexual slavery and enforced prostitution; . . . conscripting or enlisting
children under the age of fifteen years or using them in hostilities. The Statute of the ICC lists a large
number of war crimes in international armed conflicts which are not considered . . . ―grave
breaches.‖70

        In recent years, the concept of war crimes has been extended to internal conflicts as well,
giving third states the right (but not necessarily the duty) to exercise universal jurisdiction. The most
widely accepted standard of conduct in non-international armed conflicts is article 3, common to all
the Geneva Conventions, which outlaws ―violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in
particular humiliating and degrading treatment; the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.‖ . . .

Which Countries Allow Prosecutions for Extraterritorial Crimes?

        Each country‘s laws are different. Unfortunately, the fact that a country has ratified a treaty
requiring it to prosecute alleged torturers or war criminals, or that customary international law calls
for prosecution of the perpetrators of genocide or other crimes against humanity, is not always
enough to ensure that the country‘s laws actually permit prosecution.

        In many countries, mainly from the French-inspired civil law tradition, treaties (and even
customary international law in some cases) are automatically part of national law, without the need
for specific legislation ―implementing‖ the treaty. This is the case in francophone Africa and Egypt,
for example. Therefore, if conventional or customary international law provides for universal
jurisdiction, the courts of these states would have a sufficient basis for a prosecution. Similarly,
numerous Latin American and European countries have laws which refer generally to treaties the
country has ratified. For example, Panama‘s Penal Code provides that: ―Regardless of the law of the
place where the act was committed and the nationality of the accused, the Panamanian criminal law
will be applied to those who commit punishable acts foreseen in international treaties ratified by the
Republic of Panama.‖ Thus, in principle, torture committed abroad should be punishable in Panama
pursuant to the Convention against Torture. . . .


70 See Selected Human Rights Instruments at 304-07, Art. 8.
                                                      100
       In many other countries, however, treaties must be specifically ―incorporated‖ into domestic
law before they can be relied on. All too often, countries ratify treaties and then fail to adopt
implementing legislation incorporating the treaties into national law. . . .

       Many countries have legislation which specifically implements the Convention against
Torture. . . . Australia, Canada, Belgium, France, Malta, the Netherlands, New Zealand, [the United
Kingdom] and the United States, among others, have . . . laws regarding torture.

        Similarly, many countries have incorporated the Geneva Conventions into their domestic
legislation, though rarely in the sweeping terms of the conventions themselves. Thus, the U.S.
punishes ―Whoever, whether inside or outside the United States, commits a war crime,‖ which is
defined to include grave breaches of the Geneva Conventions . . . . The provision only applies,
however, when the perpetrator or victim is a member of U.S. forces or a national of the United
States. . . .

        Some countries, such as Belgium, Costa Rica, Germany, Nicaragua and Spain specifically
grant their courts competence to try cases of genocide committed abroad. Few countries have laws
specifically permitting the prosecution of crimes against humanity abroad. These include Belgium,
France, Israel, [and] Venezuela. Some Nordic states, such as Norway and Sweden, criminalize all
felonies committed abroad, as long as the offender is in the prosecuting state.

What If There Are Victims From the Prosecuting State?

        In addition to universal jurisdiction, many countries give their courts competence to punish a
crime committed abroad against one of their nationals (the ―passive nationality‖ or ―passive
personality‖ basis of jurisdiction), usually on the condition that the conduct is also criminal in the
country where it occurred but was not punished there. Thus, the cases against Pinochet in Belgium,
France, and Switzerland are based on complaints from nationals of those countries who were
allegedly harmed by Pinochet in Chile. The existence of victims among its own citizens, of course,
also gives the country a greater political interest in prosecuting the case.

The Question of Political Will

        The political will of the prosecuting (or extraditing) state will be a critical factor in the
possibility of a prosecution, particularly where the law does not allow victims to initiate a criminal
proceeding directly. In the Pinochet case, British police immediately executed the arrest warrant sent
by Spain, and Britain‘s Home Secretary Jack Straw then twice made the diplomatically difficult
decision to allow Spain‘s extradition bid to proceed. Other countries would probably have made a
decision more weighted to the political costs of a break with the international status quo. In August
1999, when Izzat Ibrahim al-Duri, a top aide to Iraqi President Saddam Hussein, visited Vienna to
receive medical treatment, a local city councilman filed a criminal complaint against him, citing his
active role in Iraq‘s genocide against the Kurds. Less than forty-eight hours later, the Austrian
government let him leave the country, placing its relations with Iraq above its international treaty

                                                 101
obligations. . . .

        Obviously, the existence of a democratic government and an independent judiciary and
perhaps the presence of a large community of exiles from the country of the crimes will help create a
political climate in the prosecuting state permitting a case to go forward. Pinochet‘s prosecution in
Spain--where a conservative government [was] under pressure [from] South American trading
partners to drop the case--was only possible due to the independence of Spain‘s judiciary, the large
Chilean exile community in Spain, and strong popular support for the prosecution. . . . On the other
hand, Idi Amin, the former dictator of Uganda currently living in Saudi Arabia, is unlikely to be
prosecuted in Saudi Arabia, a state in which there is little political participation and no independent
judiciary and whose government is not responsive to international calls by NGOs and victim groups
to bring Amin to justice.

       Depending in part on whether the perpetrator‘s regime is still in power, it is possible that the
government of the country in which the crimes occurred will try to block the prosecution. This may
have important implications in relation to access to information and evidence, and even to the safety
of witnesses, victims, and their families….

        Even where international politics are not a factor, it may also prove difficult to convince a
foreign prosecutor, or investigating judge, to initiate the investigation of a crime committed outside
of his or her country, which diverts human and financial resources from a local case, particularly
given the expense of international cases and the possible lack of local interest in the case. Hence, a
strong advocacy campaign may be needed. Local supporters of the case may argue that a country
should not become a ―safe haven‖ for human rights criminals.

       In certain countries, victims and even NGOs are allowed to present a claim directly to the
courts without the approval of the prosecutor, although the same difficulties may be faced in
convincing a judge to pursue the case.

                                              *****

Menno Kamminga, The Exercise of Universal Jurisdiction in Respect of Gross Human Rights
Offences (1998) (citations omitted):

                                              Case Law

        Until recently, actual prosecutions based on the principle of universal jurisdiction were
extremely rare. In 1986, the then Legal Adviser of the International Committee of the Red Cross
expressed the view that universal jurisdiction was ―of no practical value‖ for war crime trials.
Universal jurisdiction was relied upon to bring Adolf Eichmann and John Demjanjuk to justice in
Israel but this was one among several jurisdiction grounds. The Israeli Supreme Court which
convicted Eichmann and the US courts which decided to permit Demjanjuk‘s extradition to Israel
relied not only on the universal jurisdiction principle but also on the protective principle and the


                                                 102
passive personality principle.71 They thus recognised that there was a certain link between these two
offenders and the state bringing them to justice even though the State of Israel did not yet exist when
the offences were committed. However, in recent years a number of alleged perpetrators of atrocities
committed in the former Yugoslavia and Rwanda have been successfully brought to trial in countries
other than the territorial state exclusively on the basis of universal jurisdiction. In these cases, the
only link between the offender and the custodial state was the presence of the offender on its
territory.

        A comparative analysis of these cases reveals a fairly consistent pattern. The defendants
were all either long-term residents or persons seeking political asylum in the European countries in
which they were brought to justice. In all cases the evidence against them consisted largely of
eyewitness testimony. While in two cases this evidence turned out to be insufficient to secure a
conviction, in three other cases convictions were successfully based on it. In all cases the defendant
was only brought to trial after it had first been ascertained that the Yugoslavia and Rwanda Tribunals
did not wish to exercise jurisdiction. Moreover, in none of the cases the territorial state requested
extradition of the defendant in order to carry out its own proceedings. And in all cases the courts of
the custodial state agreed that they could themselves exercise jurisdiction on the basis of universal
jurisdiction.

Democratic Republic of the Congo v. Belgium:72 Universal Jurisdiction over Human Rights
Abuses

        In 1993, the Belgian Parliament passed a law authorizing Belgian courts to exercise
jurisdiction over anyone accused of genocide, war crimes, and crimes against humanity.73
Prosecutions could take place in Belgian courts regardless of the nationality of the individual or the
territory in which the act took place.74 The universal jurisdiction law has been the source of
controversy and litigation.

        Belgian authorities issued an international arrest warrant in April 2000 for the Minister of
Foreign Affairs for the Democratic Republic of the Congo (―the DRC‖), Abdulaye Yerodia
Ndombasi. The warrant requested all other states to detain the Foreign Minister and render him to
Belgian authorities. In this particular case, the Belgian authorities were attempting to extend their
jurisdiction to sitting office holders and to acts committed while in office.

        In October 2000, the DRC brought a contentious proceeding against Belgium in the
International Court of Justice (ICJ) arguing: that Belgium was attempting to exercise its jurisdiction
on the DRC‘s territory, contrary to international principles; that the arrest warrant violated sovereign
equality as defined by Article 2 of the U.N. Charter; and that the action violated customary law as


71 These principles re discussed in chapter 1, supra.
72 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (2000-2002).
73 Belgium: Act Concerning The Punishment Of Grave Breaches Of International Humanitarian Law, 38 I.L.M.
918 (1999) (Unofficial translation).
74 Arrest Warrant of April 11 (Democratic Republic of the Congo v. Belgium), Judgment of February 14, 2002,
para. 1.
                                                     103
codified in Article 41 of the Vienna Convention on Diplomatic Relations, regarding the diplomatic
immunity of foreign representatives.75 The DRC requested the annulment of the arrest warrant.76

        Initial arguments in the case concerned the effect of the removal of the Foreign Minister from
office in April 2001. Belgium first contended that no legal controversy existed, an argument that the
court rejected. The ICJ then rejected Belgium‘s argument that the case was moot because the
diplomatic immunity of an incumbent was no longer at issue. The ICJ did not consider the issue to
be moot since the arrest warrant, not the Foreign Minister himself, was the alleged cause of the injury
and the warrant was still in effect.77

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

        While the final Congolese application did not include the issue of whether universal
jurisdiction was proper, the ICJ did conclude that for a full and proper determination, such
jurisdiction would have to be addressed if the court found that diplomatic immunity did not apply.
Since it found that diplomatic immunity applied, the court did not find it necessary to address
whether Belgium‘s exercise of universal jurisdiction for war crimes and crimes against humanity was
proper. Almost all the concurring opinions, however, stated that universal jurisdiction is proper.
There existed some disagreement among the judges as to whether universal jurisdiction in absentia
was proper.78

        The ICJ decision begins by noting that ―it is firmly established [in international law] that . . .
certain holders of high-ranking office in a State, such as the Head of State, Head of Government and
Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and
criminal.‖79 While international conventions guided the court, it used international customary law as
the primary source for deciding the immunity of Foreign Ministers.80 The ICJ examined the
circumstances necessary for a Foreign Minister to function properly and outlined some of the
relevant considerations:

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

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

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



75 Id.
76 Id. at para. 10
77 Id. at para. 40
78 Id. at para. 46.
79 Id. at para. 51.
80 Id. at para. 52.
                                                  104
    -    recognition of his or her status comes solely by virtue of the office rather than by any
         presentation of credentials, in the same manner as the Head of State or Head of
         Government.81

        The ICJ concluded that full criminal and civil immunity is necessary for carrying out such
duties since any exercise of jurisdiction would limit the function of the office. The functional
perspective of the court led it to conclude that no distinction can be made between acts carried out in
an official capacity and acts carried out in a private capacity.82 This immunity extends even to acts
committed before assumption of office. The court maintained that even the mere risk of arrest would
interfere with the functioning of the office.83

        The court rejected Belgium‘s contentions that war crimes and crimes against humanity are
qualitatively different crimes from which international law provides no immunities. The ICJ noted
the Pinochet case and concluded that it does not address the issue of immunity for incumbent Heads
of State or Foreign Ministers. It found no support for making an exception to immunity in the case
of incumbents under international law or in the practice of national courts.84

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

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

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

    -    trial after a person ceases to hold office, ―[p]rovided that it has jurisdiction under
         international law, a court of one State may try a former Minister of Foreign Affairs of another
         State in respect of acts committed prior or subsequent to his or her period of office, as well as
         in respect of acts committed during that period of office in a private capacity‖;85 or

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

The court held by, thirteen votes to three, that the issuance of the arrest warrant was a violation of
Belgium‘s international legal obligation to respect the immunity from criminal jurisdiction of the


81 Id. at para. 53.
82 Id. at para. 55.
83 Id.
84 Id. at para. 58.
85 Id. at para. 61. Sarah Rispin makes the argument that the ICJ‘s functional analysis actually makes this
possibility less likely. She argues that the functional argument regarding the inability to leave the country means
that even past officeholders could be protected by reason of inhibiting the functioning of the present office holder.
See Sarah C. Rispin, Implications of Democratic Republic of the Congo v. Belgium on the Pinochet Precedent: A
Setback for International Human Rights Litigation?, 3 CHI.J.INT‘L.L. 527 (2002).
                                                         105
Foreign Minister of the DRC.86 The three dissenters each appended a dissenting opinion to the main
judgment.87

NOTES AND QUESTIONS

1.      There was also an attempt to bring Ariel Sharon, the former Prime Minister of Israel, to trial
for what have been called the Sabra and Chatila refugee camp massacres of 1982 in Lebanon by
Israeli-allied militia. In June 2001 the survivors filed a complaint before a Belgian court and a
prosecutor began an investigation. In June 2002, the Belgian Appeals Court rejected the application
as inadmissible on the grounds that the Belgian law was not intended to give Belgian authorities the
power to extend jurisdiction to persons who were not present in Belgium. This same principle was
the basis on which the domestic Belgian case against the former Foreign Minister of the DRC had
been dismissed.
       The Sabra and Chatila survivors appealed the case to the Supreme Court of Belgium.88 In
February 2003 the Belgian Supreme Court decided against the survivors on the grounds that Sharon
was an incumbent Prime Minister. The court made it clear that after he left office, Sharon could be
brought under the jurisdiction of the Belgian courts.89

         Suits were subsequently brought against former President George H. W. Bush, former
Secretary of Defense Dick Cheney, former Chairman of the Joint Chiefs of Staff Colin Powell, and
retired General Norman Schwarzkopf for a missile attack that killed 200 Iraqi civilians in 1991. A
war crimes complaint was also filed against General Tommy Franks for his actions in the American-
Iraqi war that commenced in 2003. In response to the bringing of suits against incumbent and
former officials, and pressure from the US and other NATO and EU allies, the government of
Belgium amended its law in the spring of 2003. When the person is not in Belgium, the amendment
allows the prosecutor to refuse prosecution in favor of the home state of the accused or an
international tribunal with the appropriate jurisdiction. Additionally, the law will apply only if the
plaintiff is Belgian or has lived in Belgium for at least three years and the alleged criminal is Belgian
or a resident for more than three years. Furthermore, the complaint will be heard only if the country
in which the alleged crimes were committed had no legislation to condemn them or cannot guarantee
a fair trial. The decision to hear the complaint will be made by the First President of the Brussels
Appeal Court.

       While Belgium has narrowed the reach of its universal jurisdiction statute due to United
States pressure, in July 2005, the statute was used successfully to prosecute two Rwandan
businessmen, living in Belgium, for war crimes in Rwanda. The two men, Etienne Nzabonimania
and Samuel Ndashyikirwa, were arrested in Belgium in 2002 and later tried and found guilty of
dozens of charges relating to war crimes and murder. The two businessmen had participated by

86 Id. at para. 78.
87 Available at http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm.
88 A more complete summary of the case up to this point is available at
http://web.amnesty.org/library/Index/ENGIOR530012003?open&of=ENG-BEL.
89 Available at http://news.bbc.co.uk/2/hi/middle_east/2754877.stm. The decision also overruled the Appeals court
interpretation of the law.
                                                      106
providing weapons, beer, and vehicles to help facilitate the killing.

       Previously, in June 2001, a Belgian court had sentenced four other Rwandans to twelve to
twenty years in prison for their roles in the Rwandan genocide.

2.      In the wake of the Pinochet decision, authorities in Senegal and France arrested foreign
dignitaries accused of torture. In July 1999, French police detained Ely Ould Dah, a colonel in the
Mauritanian army who was attending a military training course in France. Dah had been accused by
former Mauritanian military personnel living in France. In February 2000, the former leader of
Chad, Hissene Habré, was indicted and placed under house arrest in Senegal. Habré, who had been
living in Senegal for nearly 10 years, had been accused by a Chadian truth commission of presiding
over 40,000 political murders and the systematic use of torture. The course of the Habré case
underscores the significance of an independent judiciary to the success of any attempted
transnational prosecution. Less than a month after Habré‘s indictment, general elections in Senegal
resulted in a change in the presidency. Shortly after taking office the new president, Abdoulaye
Wade, appointed Habré‘s attorney as an advisor and removed the judge investigating the Habré‘s
case. A reconstituted indicting chamber, presided over by an ally of Wade, then dismissed the
torture charges against Habré. See Justice Denied in Senegal, N.Y. TIMES, July 21, 2000, at A18.
For more information, see also Dustin N. Sharp, Prosecutions, Development, and Justice: The Trial
of Hissein Habre, 16 HARV. HUM. RTS. J. 147 (2003).

        Efforts to prosecute Habré were renewed in September 2005 when a Belgian judge issued an
international arrest warrant for Habré. The warrant charges him with war crimes, crimes against
humanity, and torture for acts committed during his presidency. While refusing to rule on Belgium‘s
extradition request, Senegal asked the African Union to recommend the proper jurisdiction for a
Habré trial. In turn, the AU established a Committee of Eminent African Jurists to report on the
matter at the July 2006 AU summit. In March 2006, the European Parliament increased pressure on
Senegal by adopting its own resolution calling for the trial or extradition of Habré to Belgium in
accordance with the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment to which Senegal is a party. See Human Rights Watch, The Case Against
Hissène Habré, an „African Pinochet.‟90

3.      Often countries with a civil law-inspired legal system do not need to adopt domestic
legislation to establish a basis for prosecuting torture, genocide, and other crimes giving rise to
universal jurisdiction. It should be noted that beyond questions of jurisdiction, legislation may be
required to enable a national court to apply its procedural law in a particular case and to determine
matters such as the applicable penalties. For more information regarding implementing legislation,
see Redress, Universal Jurisdiction in Europe. Criminal Prosecutions in Europe Since 1990 for War
Crimes, Crimes Against Humanity, Torture and Genocide (1999).

4.      In 1987 the Canadian parliament amended the Canadian criminal code to grant national
courts jurisdiction to prosecute crimes against humanity and war crimes committed abroad. See R.S.,
ch. C-34, § 7 (3.71) et seq. The 1987 amendment did not retroactively criminalize acts constituting

90 Available at http://www.hrw.org/justice/habre/.
                                                     107
war crimes or crimes against humanity, but rather retrospectively extended Canadian jurisdiction to
prosecute those acts. The first prosecution based on the 1987 amendment came in the case of R. v.
Finta, decided in 1994. Imre Finta, a naturalized Canadian citizen who had served as an officer in
the Hungarian police during World War II, was accused of kidnapping, illegal confinement, robbery,
and manslaughter of over 8,000 Hungarian Jews in 1944. The case ultimately reached the Supreme
Court of Canada, which upheld a jury verdict acquitting Finta. The Supreme Court interpreted the
1987 amendment as requiring proof not only of the mens rea of the underlying offense -- e.g.
kidnapping, manslaughter, etc. -- but also proof that the defendant had willfully committed a crime
against humanity. For a critique of this decision, see Sharon A. Williams, The Prosecution of War
Criminals in Canada, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES
(Timothy L.H. McCormack & Gerry J. Simpson eds., 1997).

5.      In 2002, Germany passed its own universal jurisdiction laws largely based on the Rome
Statute of the ICC. Germany‘s universal jurisdiction laws provide Germany with jurisdiction over
war crimes, genocide, and crimes against humanity. Jurisdiction is neither limited by where the acts
occurred or by whom they were committed, yet prosecution is discretionary unless the actor or victim
is German. In November 2004, the U.S.-based Center for Constitutional Rights petitioned the
German Federal Prosecutor‘s Office to investigate and prosecute U.S. Secretary of Defense Donald
Rumsfeld and other high ranking American officials for their roles in the torture of prisoners held at
Abu Ghraib prison in Iraq. Two months after its filing, the German federal prosecutor rejected the
petition stating that Germany‘s universal jurisdiction laws only allowed Germany to prosecute such
crimes when the home country‘s government refuses to do so. The prosecutor determined that there
was no indication that the United States would not investigate and prosecute those responsible for
the abuses at Abu Ghraib.

         On May 13, 2005, hundreds of unarmed Uzbeks were killed in the Uzbek city of Andijan by
Uzbek government forces. In response to the Uzbek government‘s failure to investigate and
prosecute those responsible for the killings, eight Uzbeks submitted a complaint to the German
federal prosecutor. The complaint was against the Uzbek Minister of Interior Zokirjon Almatov for
his involvement in the 2005 killings along with his role in the ―well-documented, systematic practice
of torture‖ in the country‘s detention facilities. Human Rights Watch, Germany and Accountability
for Crimes Against Humanity in Uzbekistan, Dec. 15, 2005.91 In March 2006, the federal prosecutor
declined to investigate the case against Almatov, stating that Uzbekistan was unlikely to cooperate
and therefore the chances of a complete investigation and prosecution were ―non-existent.‖ Human
Rights Watch, Germany: Prosecutor Denies Uzbek Victims Justice, Apr. 6, 2006.92 In response to
prosecutor‘s decision, the executive director of Human Rights Watch Europe and Central Asia
division stated, ―If the prosecutor refuses to invoke Germany‘s excellent law on international crimes
in this case, it is hard to imagine when he would. Germany‘s universal jurisdiction legislation seems
to exist only on paper.‖ Id.

6.     Switzerland‘s universal jurisdiction laws offer yet another example of strong laws on paper
that were watered down before being used to prosecute serious international human rights violations.

91 Available at http://hrw.org/english/docs/2005/12/15/uzbeki12294.htm
92 Available at http://hrw.org/english/docs/2006/04/06/german13124.htm.
                                                     108
The Swiss laws had permitted the investigation and prosecution of any violators of international
humanitarian law engaged in national or international armed conflicts. Whereas the previous law
allowed Swiss prosecution regardless of the perpetrators affiliation with Switzerland, the
amendments to the Swiss Military Penal Code limited Swiss jurisdiction to suspected war criminals
that have a ―close link‖ to Switzerland. Press Release, United Nations, Committee on Rights of
Child Concludes Forty-First Session (Jan. 27, 2006).93 In January 2006, the UN Committee on the
Rights of the Child criticized Switzerland‘s amendment and called on Switzerland to reimplement its
prior law.

7.      For additional reading on universal jurisdiction, see:

Amnesty International, The Case of General Pinochet: Universal jurisdiction and the absence of immunity for
crimes against humanity, AI Index: EUR 45/21/98 (1998);

Amnesty International, Universal Jurisdiction:14 Principles on the Effective Exercise of Universal
Jurisdiction, AI Index: IOR 53/01/99 (1999);

Roman Boed, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged
Perpetrators of Serious Human Rights Violations, 33 CORNELL INT‘L L. J. 297 (2000);

Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH. L.
REV. 2129 (1999);

Douglass Cassel, The ICC‟s New Legal Landscape: The Need to Expand U.S. Domestic Jurisdiction to
Prosecute Genocide, War Crimes, and Crimes Against Humanity, 23 FORDHAM INT‘L L.J. 378 (1999);

Human Rights Watch, When Tyrants Tremble: The Pinochet Case (1999);

International Council on Human Rights Policy, Hard Cases: Bringing Human Rights Violators to Justice
Abroad. A Guide to Universal Jurisdiction (2000);

THE PINOCHET CASE: A LEGAL AND CONSTITUTIONAL ANALYSIS (Diana Woodhouse ed., 2000);

Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on
Trials of War Criminals by National Courts, 21 BERKELEY J. INT‘L L. 111 (2003);

UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER
INTERNATIONAL LAW (Stephen Macedo ed., 2004);

Ruth Wedgwood, International Criminal Law and Augusto Pinochet, 40 VA. J. INT‘L L. 829 (2000).




93 Available at http://www.unhchr.ch/huricane/huricane.nsf/0/B5CB2463F5FBA9D6C12571030057A68E?
opendocument.
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