The Mythical Administration of International Criminal Justice

The Mythical Administration of International Criminal Justice

and the individual’s liability in International Humanitarian Law

“Come On Bashar, Leave!”

― lyrical message popularised in the Syrian uprising.

INTRODUCTION:

Syria through the above mentioned lyrical appeal seems to have successfully made the latest contribution to the pop culture of sedition and treachery[1]. It is a song popularized by the common Syrian who is no longer scared of the powerful Baath regime. They have risen up to the challenge and are laying down their lives every single day to the cause of Syrian liberation. Instances of war crimes[2] which have spilled over the boundaries of their respective nations are a regular affair in the contemporary world. Syria is witnessing a bloodbath as the Shiite minority backed by the ruling Al Assad family is butchering the Sunnis and the Kurds. Bashar Al Assad, the gentleman behind the violence is busy procuring chemical weapons and chalking out names of rebel groups upon whom he could place the blame. The question today is not limited to Syria. Be it Kosovo, Sudan, Iraq or Libya, the story is the same. There is a single individual (backed by an entourage) on a free run committing crimes against civilians of his own nation and foreigners alike. When we talk about pinning the liability, we are faced with a void in place of an autonomous and impartial authority for prosecution of such individuals for violations of international law.

One may argue vehemently citing the presence of the United Nations and further the International Court of Justice, but the neutrality and efficiency of these bodies have never been beyond debate. Through this article the birth of the recognition of the individual as an entity and his liability for his own acts in the field of international law has been traced. The concept of individual criminal liability seems to have been born in the Nuremberg Tribunal constituted to prosecute the offenders in Nazi Germany. It traces the journey from Nuremberg to the present day International Criminal Court touching upon the military tribunals of Rwanda and Yugoslavia, in the process closely examining the amount of political influence in these prosecutions thereby further deliberating upon the central question, whether administration of international criminal justice is indeed a myth.

 International Crime and its origin:

The concept of criminal justice existed since inception of mankind but was limited to nations and their own individuals. International justice was a non existent entity. As the world grew smaller, people of one nation begrudged members of another and the absence of an impartial judge whose authority prevailed over both was felt more than ever before. The concept of an international crime was questioned and the need to define it became an imperative. As answers started being explored, more questions were unearthed and gradually from behind the mesh of uncertainty appeared the framework of an international criminal justice system which was evolved and modified over a period of time to stand where it stands today. At the core of this elaborate framework stands the very concept which gave rise to it- the redressal of an international crime.

Like most other concepts of international law, coming up with a universally accepted definition of international crime is difficult, however it may be defined as breaches of international rules entailing the personal criminal liability of the individuals concerned.[3] A distinction can be made between international crimes which are based on international customary law and therefore apply universally and crimes resulting from specific treaties which criminalise certain conduct and require the contracting states to implement legislation for the criminal prosecution of this conduct in their domestic legal system.[4]

Under this definition, international crime includes war crimes, crimes against humanity, genocide, torture, aggression and certain categories of international terrorism[5]. International Criminal Law therefore is a body of international rules to govern categories of conduct in certain situations and to make those persons who engage in unlawful conduct as laid down criminally liable.

VICTORS JUSTICE – World Wars and beyond:

Early attempts recognizing the need for an international organ of criminal jurisdiction were made right after the First World War which failed to yield results in a period dominated by considerations of domestic sovereignty. Post the First World War, in 1919 the ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ proposed the establishment of a high tribunal composed of judges drawn from many nations.’[6]In the same year the victors entered into an agreement with Germany which provided for the punishment of leading figures responsible for war crimes. It envisaged the establishment of a special tribunal of 5 judges who were to be appointed by USA, Great Britain, France, Italy and Japan. However given the harsh criticisms invited by the treaty of Versailles which spoke about establishment of Courts by the Allied powers and the partial treatment given to the Germans ,where military personnel accused of war crimes were not tried by any court of the Allies nor was any tribunal set up to investigate their crimes. Hence this first attempt to establish some sort of international criminal justice failed miserably. Then came the second world war where the prosecution was normally effected by the victor state, as well as by one of its allies, on the basis of either the principle of territoriality[7] or of passive nationality[8].The terror of Nazi genocide and Japanese crimes committed during occupation of large parts of South East Asia led to the successful formation of the Nuremberg and Tokyo Tribunals (1945-1947).

 The formation and functioning of the Nuremberg tribunal held different meanings to the different powers. The way the British viewed these trials were starkly different from the way the Soviets did. The neutrality of these tribunals have always been questioned. It was more of a situation where the victors staged the trials to emphasize their victory by humiliating the enemy into submission. Churchill vehemently advocated summary executions without bothering with legal procedures; minor criminals he proposed would be tried by tribunals specially created for the purpose.[9] Washington was divided in their opinion. The veteran secretary of war, Henry Stimson, was opposed to such kind of summary justice. The War department advocated that through the Allied war effort, it must be demonstrated that democratic notions of justice would be dispensed even for people like Hitler.[10] Whereas the Soviets experience of show trials of the 1930s convinced them that justice had to be popular and visible. The French were unhappy with the tribunal as the law governing it was Anglo-Saxon common law instead of Roman law on the other and the British were still reluctant to accept the proposed setup. They were apprehensive about sitting next to Soviet representatives whose records of aggression and human rights violations were not a secret to the global community.

The Military Tribunals in action:

Even though Nuremberg was a military tribunal in nature, in practice a large part of the subsequent trial was organised and prosecuted by civilian lawyers and judges. Looking into the preparatory stages of the trial we find that it was more of a political act, if not entirely so, than an exercise in law. There was no unilateral agreement regarding neither who the principal war criminals would be nor an idea of what charges they were to face. The arbitrariness of the choice could be demonstrated by a remark made by Britain’s attorney general made in a meeting in 1945 to create a list of defendants: “The test should be: Do we want the man for making a success of our trial? If yes, we must have him.”[11] Italian names were removed from the list of defendants as they were handed over to their country for trial as Italy was turning out to be a potential western ally. Other Axis allies like Admiral Horthy of Hungary were also quietly dropped from the list. By a year from then all prosecuting powers had come to accept that they would try only a selection of German political and military leaders. Criticism could be drawn on the basis of the fact that individual defendants were picked and chosen in the vaguest manner possible. The Allied side seemed to be brimming with confusion as the chief managers of genocide, the Gestapo chief, Heinrich Muller and his deputy were missing from lists of potential defendants. These actions of the allies in essence highlight the fact that pinpointing individual criminal liability was indeed a close to impossible task for them. Looking at the processes preceding the trial one can actually debate whether individually making a criminal liable was actually the allied intention. On 26^th July 1945, UK, US, France and the Soviet Union issued the Potsdam Declaration which announced their intention to prosecute leading Japanese officials for the same crimes.[12] On the lines of the Nuremberg Charter, the Tokyo Charter was issued which included the newly articulated crimes against peace and humanity.[13] According to claims, the highly controversial Tokyo trial was a mode of America’s revenge for Pearl Harbour or a means of ameliorating America’s guilt over the atom bomb attack on Japan. However one of the common grounds of criticism for both Nuremberg and Tokyo has been the retrospective implementation of laws. The legal categories of crimes against peace and humanity were evolved during discussions preceding the set up of these tribunals. They are ex post facto legislations as these crimes did not exist in international law prior to 1945. Therefore in light of all the factors discussed above we see that these two tribunals were not independent international courts but judicial bodies acting as organs common to the states which appointed it.

However these tribunals have their own importance which cannot be undermined in the pages of the history of international criminal law. They were the first ones to break the ‘monopoly’ over criminal jurisdiction concerning such international crimes, as the jurisdiction of such crimes until then rested firmly with the states. Further offences like that of crimes against peace and humanity were recognised and made punishable for the first time in the London agreement.[14] The world saw military leaders and high ranking politicians being brought to trial for the first time as until then only minor officers and servicemen had been prosecuted. Finally the statutes and case laws of these tribunals and others set up after the Second World War by the victors contributed to the development of new legal norms and standards of responsibility.

On the footsteps of Nuremberg:

International Tribunal for former Yugoslavia (ICTY) & International Criminal Tribunal at Rwanda (ICTR)

The International Law Commission Draft Code of Crimes against Peace and Security of Mankind suggested that international crimes entailed individual responsibility without the interference of domestic law. In the first phase of work (1949-1954) Article 1 provided that Offences defined in the Draft Code ‘are crimes under international law, for which the responsible individuals shall be punished’[15]. In the second phase of work (1982-96), there was unanimous agreement on the principle of individual responsibility for international crimes.[16] However this Draft Code was never adopted by the General Assembly and does not form the backbone to any particular international convention.[17]

ICTY and ICTR to make up for the criticism of Nuremberg and Tokyo:

Nuremberg and Tokyo Tribunals could somehow never get rid of the tag of being the vehicle of the victor’s justice and that went on to become the perpetual hiccup for the UN every time the issue of an impartial administration of international justice came on the forefront. In the late 1940s the quest to establish more impartial and permanent mechanisms for delivery of international justice was undertaken by the UN; however that didn’t lead to a fruitful creation for quite a while.

Following the cold war and the formation of a unipolar world, a fragmentation of the international community was witnessed. There was intense disorder fuelled by the rising feeling of fundamentalism and nationalism which formed the source of most internal armed conflicts with widespread violence and bloodshed. The need for international criminal justice was further heightened by the increasing importance of the human rights doctrine. It was an accepted fact that the best ways of ensuring compliance with human rights was to proscecute and punish those individually responsible for their breach.

The tribunal for former Yugoslavia not being established by a victor to judge the defeated party finally gave the UN that opportunity to finally detach itself from the abominable tag lurking in the corners of the Nuremberg trials. Acting on behalf of the world community, the SC established the tribunal to judge all parties to the conflict who committed violations of well established criminal law.[18] But the ICTY too wasn’t spared its own share of criticism. It was contended that by creating a criminal court empowered to hear crimes committed in a particular geographical territory instead of granting the new court worldwide jurisdiction over such crimes, the SC was clearly endorsing ‘selective justice.’ The International Criminal Tribunal at Rwanda (ICTR) was fashioned along the lines of ICTY. Also, the magnitude of crimes committed in Rwanda and the fact that it was an assured case of genocide gave the Rwandan situation a kind of urgency which made the ICTY criticism appear as a weak argument against the setting up of a similar tribunal. Furthermore the new Rwandan government in their attempt to obtain the international ‘blessing’ flagged the proposition of self examination and international judicial condemnation of the worst abuses that had occurred during the civil war.[19] The SC adopted the Statute and judicial mechanism for the Rwanda Tribunal by Resolution 955[20] of 8^Th November 1994 after having determined that ‘this situation continues to constitute a threat to international peace and security.[21] But soon enough the complexities of making the Rwandan Tribunal function efficiently plagued the SC and they reached a point of ‘tribunal fatigue’.[22] The UN as well as the world at large had realised that the resources spent behind a single as hoc tribunal in terms of money, time and the likes of it would drain the UN treasury. The time taken by these tribunals to mete out justice which was not beyond debate in itself too posed as a factor which dissuaded the UN from recognizing the need of setting up a similar body anywhere else.

 In the wake of such a situation, states preferred to establish courts that are mixed in their composition and the statutes and rules of which combine aspects of international law and municipal law. Such courts have been constituted in Sierra Leone, East Timor, Kosovo, Cambodia and Lebanon. But such hybrid courts too are not free from inherent problems. The first problem is to ensure that the national and international component of prosecution work in tandem which is difficult because local prosecutors may either be over zealous when accused happens to be from a hostile ethnic group creating problems for the functioning of the machinery. Smooth cooperation of the national and international bench might be an issue as there are inherent differences in mentality, language, experience and legal philosophy. Funding and security too act as practical problems. These might appear to be the reason behind the trial of former Liberian President Charles Taylor being held before the Special Court of Sierra Leone not at the seat of the Court in Freetown but at The Hague[23].

The International Criminal Court:

The ad hoc tribunals established till date fought tooth and nail to administer justice but the initial demand for a body to deliver worldwide justice still stood unfulfilled. Proposals were made, discussions took place and resolutions were made but then soon after tabled. In such a situation, Trinidad and Tobago badgered with their drug trafficking problem led the Latin American States to approach the UN General Assembly in the 1980s with a proposal to establish a permanent international criminal court. They viewed such a Court as their last resort to prosecute international drug traffickers.[24]The matter was referred further to the International Law Commission (ILC).In 1990 the ILC submitted a report to the 45^th session of the GA which was not limited to the question of drug trafficking and was received well by the GA which prodded the ILC to continue working on it which further resulted in a comprehensive text in 1993, modified in 1994.[25] This text of the ILC, called the draft statute implicitly limited the Court’s jurisdiction rationae materiae to genocide; aggression; serious violation of the laws and customs applicable in armed conflict crimes against humanity; and crimes established by treaties listed in the annex to the Statute.[26] The Preparatory Committee’s draft contained a single Article 23 dealing with the principle of individual criminal responsibility as follows:[27]

“1) The Court shall have jurisdiction over natural persons pursuant to the present Statute.

2) A person who commits a crime under this Statute is individually responsible and liable for punishment.”

A few changes were made in this draft on this point which went on to become Article 25 of the ICC Statute.[28] Being a Court of limited jurisdiction, the Statute does not take a position on the question whether individuals are bound under customary international law not to commit international crimes. However what is indeed interesting is the fact that the Material jurisdiction of the Court seems more restricted than the prohibited conduct and individual responsibility under customary international law. For example, the Statute’s provisions on command responsibility distinctly distinguish between military commanders and other superiors where a stronger connection in case of command responsibility is demanded in the latter[29] case whereas international customary law makes no such difference. The Statute provides for two types of incidental responsibility apart from the ones explicitly outlined in the Statute. First being, Court’s jurisdiction over offences against the administration of justice like contempt offences and other cases of misconduct[30] which do not derive more generally from violation of international law. The second are the clauses on forfeiture of proceeds of crime, implying that the Court has power to order the forfeiture of proceeds of crime possessed by male fide associates of the accused.[31] The Court is also empowered to order reparations, which is separate from the Statute’s specifications of penalties and is not conceived of as an additional or separate element of individual punishment for international crimes.

The Position of the Individual in the arena of States:

It was only in 1945 that it was firmly established that a) individuals can have rights and duties flowing from international law b) to the extent that individuals have rights and duties and capacities under international law, they are considered as subjects under it[32]. But however the reality yet again differs from theory, on a closer look, we see that the participation of the individual only occurs at the instigation and with the consent of other subjects of international law which control access to the international legal system. Thus individuals in essence remain subordinated in the system, suspended between object and independent subject. Prior to the existence of the Nuremberg Tribunal, the individual as an entity was non-existent in international law. Acts and Omissions of individuals which invited criminal liability were governed by domestic laws. The penal provisions of the Treaty of Versailles did point out that individuals could be held liable directly under international law but in reality they were never executed. The Statute of the ICC has not addressed the question of source either, it just gives the Court jurisdiction over crimes defined in the Statute and provides that a person who commits a crime so defined ‘is individually liable to punishment’. However it is an accepted fact that under either interpretation, responsibility derives from international law, either substantive rules or jurisdictional provisions of a tribunal. Despites multiple debates on jurisdiction and its limitations, one cannot deny that individual criminal responsibility exists even in the absence of any jurisdiction to enforce in the same way state responsibility and rights would exist even without the vigilant authority of any body as such.

PROSECUTION OF THE INTERNATIONAL OFFENDER – an exercise in futility.

After having mentioned the bodies and their evolution in the field of international criminal law, it has been established that there is a provision for pinning criminal liability upon an individual for his violations of humanitarian law. We have seen and heard of the ICC deliberating upon cases before it and holding individuals liable. But what follows after that is nothing short of an act which renders the whole process futile. The president of Sudan, Omar Hassan Al Basheer had been indicted for genocide by the ICC a decade ago, arrest warrants had been issued against him in 2009 and member nations of the ICC had been requested to hand him over if found on their soil. But all the honourable actions of the ICC have been mocked by Al Basheer as he announced his plans to travel to the United States to attend the session of the General Assembly last month.[33] He unveiled his travel itinerary and stated that the US or any other country could not curb his legitimate right to attend the General Assembly session. And the cherry on the cake being the fact that the US not being a member of the ICC is under no legal obligation to hand their esteemed guest over to the authorities. Be it Al Basheer, Al Assad or Milosevic in Kosovo, the story is the same. They might be declared liable under international criminal law or might be a step away from it, but consequent prosecution followed by punishment seems to be a story too good to be true. Therefore despite the existence of high and fancy international organizations along with a plethora of technical jargons pertaining to liability and criminal offences status quo remains. A powerful individual is never liable for his criminal act under international law irrespective of what the rule book says. But well, that is one end of the spectrum. On the other end lies the hundreds of soldiers who kill, rape, loot and maim at the orders of their superiors in order to fulfil the larger plan chalked out by their respective national “leader”. These individuals are once again well shielded by defences like superior orders and so on. Even though after many debates, it has been more or less concluded that acting under superior orders is not an absolute defence there still exists multifarious controversies regarding it. Superior Orders as a defence is said to help in mitigating the punishment for the individual in question. However we must note that this once again is a grey area where establishing or replicating the exact situation is very difficult. In a war situation, if a soldier kills two captives from the enemy battalion upon hearing about the death of his fellow soldiers in enemy hands, would that amount to superior order? even if he pleads that the superior had informed that the captives were kept for avenging irresponsible actions of the enemy in the first place. In Kappler and others(1948) the Rome Military Tribunal dealt with the unlawful reprisals ordered by Hitler for the murder in Rome of 32 members of an SS unit. The SS Lieutenant Col. Kappler in addition to carrying out orders decided to kill ten more Italians because meanwhile another SS had died as a result of bombing[34]. The Court found him guilty of killing the ten extra people and not the ones ordered by Hitler[35]. The nexus between individual action and superior order is indeed difficult to establish. In case of war crimes when the armed forces of a nation in entirety in involved in combat, it is indeed difficult to charge every single individual in there with a distinct crime, carry out prosecution and further punish him. The proportion of punishment will never ensure complete justice as judging the situation which influenced the individual to act or the amount of freedom of decision he had is next to impossible.

The above situation just reaffirms the status with respect to individual criminal liability. The ones who order the crimes are never punished in practice due to diplomatic loopholes and the ones on the field too do not take the liability due to tedious procedure and lack of practicability.

Towards a better future:

There as a million reasons attributed to the failure of the ICC and the international criminal justice system on the whole. Lack of signatories to the ICC, the US being a non signatory reduces the influence and the funds leading the bandwagon of a number of other nations which render the whole process of trial and award of verdict futile as non signatories are not legally bound to act as per the orders. Arbitrary powers of the prosecutor to choose cases fit for an ICC trial. The power of the UN Security Council vis-à-vis the ICC is much talked about. The SC has the power to defer Court investigations and prosecution but only by a positive vote i.e. if none of the P5 nations veto it and Council acts pursuant to Chapter 7 of the UN Charter[36]. Lack of inherent jurisdiction of the Court makes it dependant on the UNSC. For the administration of criminal justice in practical realms, it is imperative for the court to increase its arena of jurisdiction not dependant on conditions imposed by any other body. The powerful nations lead the US must sign the Rome Statute and support the Court financially and ideologically while the prosecutor could indeed review the cases brought for trial with a little more consideration in the interests of justice. Until and unless the ICC is armed with an inherent and unconditional jurisdiction, international administration of criminal justice will continue to exist as a term in the pages of legal texts and treaties.

 

 

 

 

Conclusion:

For millions of civilians who suffer everyday because they happen to be born in a country which had the audacity to offend a powerful nation, international criminal justice is just another word. Reasons like the state does not have jurisdiction or the class of perpetrators are covered with some sort of immunity don’t really hold any special meaning to them. The Nuremberg trials held to be the inception point of international criminal justice were chiefly about convincing the world that the Nazi show is over, the Tokyo trials were about America’s dynamics with Japan, the ad hoc tribunals of Yugoslavia and Rwanda incurred more costs and controversies than justice and after 11 years of the formation of the International Criminal Court, all its left with is more than a billion dollars and the successful completion of just one trial. The aspect ignored in all these affairs where the ones involving two entities: The victim and the liability of the perpetrator. The delivery of criminal justice as fancy as it may sound is sadly the affair of blame game also known as the pass-the-jurisdiction affair where the wails and cries of the violated civilians are lost in the sophisticated cacophony of treaties and conventions of the international gods of justice.

Submitted by:
Esha Mehar
G.N.L.U