Hurdles inbuilt in national jurisprudence / national applicationapplication

apply international law directly is dealt with in Chapter 3.1.3. of the present book.

A further question is whether nullum crimen sine lege applies only for substantive elements, or also for jurisdiction and statute of limitation. Of course, the question additionally is whether jurisdiction and statute of limitation are seen as substantive or procedural elements; different legal systems think differently about it. Enough to say that the nullum crimen sine lege principle was usually understood as applying both to substantive and procedural features. This was also the outcome of the Bouterse case⁵¹¹ in the Netherlands (the case was discussed in more depth in Chapter 3.2.1).

Van der Wilt, the commentator of the Bouterse case in ‘International Law in Domestic Courts’, noted that “[i]n the opinion of the Supreme Court, the ramifi cations of the nullum crimen principle did not only bear upon the substantive issue of qualifi cation, but affected the jurisdiction and the statute of limitations as well. […] This point of view seems reasonable. After all, it would be inconsistent to deny the retroactive applicability of substantive provisions while upholding the retroactive application of procedural features which derive their existence from the very status that torture holds under international law.”⁵¹²

3.3. Hurdles inbuilt in national jurisprudence / national application

“Even with the creation of new international tribunals in this decade, national tribunals remain essential in deterring and remedying violations of the laws of war.”⁵¹³

However exhaustive national implementation may be, enforcement cannot be effective without the proper input of domestic courts. Many examples below show that courts may, even in the presence of adequate implementation, block effective procedures. First, the general attitude of domestic courts will be

511 Supreme Court, Criminal Chamber, judgment of 18 September 2001, nr. 00749/01 (CW 2323).

512 The Bouterse-case, ILDC 80 (NL 2001), C4.

513 WEDGEWOOD op. cit. 393.

analyzed with an attempt to determine the reasons for their approach. A separate assessment of application of universal jurisdiction also seems necessary due to its unique features within war crimes procedures. Therefore as a second step, a more specifi c examination of domestic courts’ approach towards universal jurisdiction will follow.

3.3.1. Are domestic courts ready to try war crimes cases?

A common characteristic of repression of war crimes is the relatively meager number of national procedures. In fact, there are few other international obligations that are so poorly complied with as the obligations on repression and effective application through judicial enforcement.⁵¹⁴ At the same time, effective prosecution of the perpetrators of the most serious crimes cannot be achieved without the input of domestic courts⁵¹⁵. As the Offi ce of the Prosecutor of the ICC put it, there is a risk of “an ‘impunity gap’ unless national authorities, the international community and the Court work together to ensure that all appropriate means for bringing other perpetrators to justice are used”⁵¹⁶

This may have several causes. First, war crimes are usually not isolated, therefore with one case there are several accused which leads to loads of cases to be tried⁵¹⁷. Second, war crimes procedures require special knowledge of international law, international jurisprudence and special application of national law in conjunction with international law. In addition, the primary and secondary sources may be diffi cult to access, either because physically they are hardly available (with internet this obstacle seems to be gradually decreasing) or because of language problems.

Third, war crimes procedures tend to be expensive and time-consuming:

because of the distance in place and time between the place of the procedure and where the crime was committed, evidence is diffi cult to reach, witnesses live far away and often don’t speak the language of the place of the procedure, for more than one reason cooperation with other states’ authorities is necessary

514 S. FERDINANDUSSE (2006) op. cit. 95.

515 S. also KIRS (2012) op. cit. 19.

516 S. ICC: Paper on Some Policy Issues Before the Offi ce of the Prosecutor. September 2003. 3.

Available at:

www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf [last visited on 10 January 2012]

517 Domestic procedures also allow for trying lower ranking perpetrators as well. S. KIRS (2012) op.cit. 19. and Eszter KIRS: Challenges in the post-genocide Rwanda regarding criminal accountability. Miskolc Journal of International Law, 2008/5/2. 31.

and thus the proceedings are dependent on the cooperation of the state of locus delicti. Due to especially such and similar reasons it is not diffi cult to imagine why a judge would be hesitant to have a war crime case.

Although, due to the acceptance of international treaties in the national legal order, prosecutors and judges are technically applying national law during the procedure, they are, in the end, in need of specialized knowledge of international law. It is not enough to fi nd one’s way around the Geneva Conventions or other relevant international treaty only, the prosecutor/judge also needs to know the corresponding literature, international jurisprudence and other related international norms in order to effectively deal with war crimes cases or international crimes in general.

Coming back to an earlier example, in order for a prosecutor/judge to understand the principle of proportionality in humanitarian law, it is not enough to read Additional Protocol I, but he/she needs to know the development of the law, the existence or non-existence of corresponding customary law, etc. Therefore, prosecutors/judges require specialized training in international humanitarian law and international criminal law in order to conduct effective and high standard national criminal proceedings in such matters.⁵¹⁸

Moreover, trying a war crime case is not necessarily a motivating factor for the judge. It usually does not assist in his/her career, and because of the legal specifi cities and the length of the procedure, it does not help much the statistics of judged cases. Being an expert in international law or war crimes cases does not bring the judge further in his career path nor is he/she compensated in any other way for taking up such a diffi cult task.

The question gets even more complicated when it comes to trying own nationals or nationals of a friendly or powerful nation. In such cases political considerations also come in, and the prosecutor may well decide to drop the charges, or the judge may try to fi nd reasons for excluding the criminality of the accused. Even democratic states have these considerations, and, as history has shown, they are not better in prosecution their own people than non-democratic countries.⁵¹⁹

518 Regarding a need for international law training for judges/prosecutors, s. METTRAUX op. cit.

371.

519 For an analysis of „minimalism and selectivity” of war crimes cases by national judicial authorities, s. FERDINANDUSSE (2006) op. cit. 89–98.

A comparative analysis⁵²⁰ of behavior of national judges has shown that judges are reluctant to apply international law if they consider that this would injure national interests⁵²¹. Recognizing the problem of independence of national courts when dealing with international law, the Institute of International Law adopted a Resolution calling on national courts to maintain their independence while interpreting and applying international law, determining the existence and content of international law, both treaty and customary or when deciding about the adjudication of a question related to the exercise of the executive power.⁵²²

The consideration of prosecutors and judges is important, because the success of a national process depends on them. Prosecutors may tend to drop charges based on alleged lack of jurisdiction, the denial of the international law character of the crime⁵²³ or simply trying to extradite the person instead of prosecuting him domestically, and judges by putting restrictive interpretation on jurisdictional issues, or applying ordinary crimes instead of the international crime.

Some states acknowledge these diffi culties and take measures to overcome them. Many states concentrate war crimes procedures to one bench or one specifi c court, hire experts to advise them on international law matters and systematically collect material and documents on international law for their own consultation and use. Unfortunately, none of these measures have been taken in Central European countries, leaving prosecutors and judges with a diffi cult task which they have to sort out themselves.

520 Eyal B^ENVENISTI: Judicial Misgivings Regarding the Application of International Law: An Analysis of

Attitudes of National Courts. European Journal of International Law, 1993/4. 159. (Quoted by:

Eyal B^ENVENISTI: Judges and Foreign Affairs: A Comment on the Institut de Droit International’s Resolution on ‘The Activities of National Courts and the International Relations of their State’.

European Journal of International Law, 1994/5. 424.)

521 Unfortunately this is also true in the EU law versus domestic law relationship. For the relationship between domestic courts and the Court of Justice of the EU, s. VARGA, Csaba:

Jogrendszerek, jogi gondolkodásmódok az európai egységesülés perspektívájában – Magyar körkép Európai Uniós összefüggésben. (Legal systems, legal mentalities in the perspectives of the European Unifi cation – Hungarian overview – in a European Union context) Budapest, Szent István Társulat, 2009. 148–150.

522 Institute of International Law, Resolution adopted at the 66th session in 1993 in Milan: „The Activities of National Judges and the International Relations of their State”. http://www.idi-iil.

org/idiE/resolutionsE/1993_mil_01_en.PDF [last visited on 27 January 2010]

523 This is exactly what happened in Hungary at the Biszku case, where Prosecution did not raise charges arguing that the acts in question did not constitute crimes against humanity therefore prosecution is time-barred. Remarkable, that the prosecution did not examine nor did it explain why it had come to the conclusion that the acts were not crimes against humanity, it simply stated so. S. Municipal Prosecutor’s Offi ce, NF 27942/2010/1 and Public Prosecutor’s Offi ce, NF. 10718/2010/5-I. For an analysis, s. VARGA, R. (2011) op. cit.

Nonetheless, when confronted with the issue of lack of preparedness of the judiciary to try war crimes cases, states simply shrug their shoulders and refer to the independence of the judiciary saying there is nothing they can do. While no one questions the independence of the judiciary, it has to be noted that preparing and training judges to stand the diffi cult test of trying war crimes requires state intervention in many fi elds and is also state responsibility. It needs money for training, determination and funds to allocate personnel for these special cases, adoption of internal measures to assign such cases to specifi cally trained judges and forming an environment that makes it motivating for a judge to try such cases.

States which have a more responsible attitude and are thus more experienced in such trials have established exclusive competence for such cases. In Germany, it is the offi ce of the federal prosecutor that is competent for prosecution, in Belgium the federal prosecutor, in Netherlands a special unit was established for prosecution. It is not enough to assign one specifi c body but it must also be ensured that trained personnel are ready to accept the assignment. This is what is mostly lacking in Central European states. While in Hungary the Metropolitan Court and the General Public Prosecutor has exclusive jurisdiction, in many cases there has been no judge or prosecutor who would have felt trained enough even to speak at an IHL conference. This negligence obviously tells us something about the system, not the individual judges or prosecutors. And this brings us back to the responsibility of the states to ensure effective prosecution of grave breaches, an obligation under international law.

Judges are often reluctant to apply international law directly, because they feel that it is a body of law that is distant from them, and over which they have absolutely no infl uence through their precedents or interpretative decisions.

Although it may well be understood that it is more convenient to move in the framework of well-known domestic laws, on the other hand it has to be noticed that national judges do bear signifi cance for international criminal law through their cases. It must be noted that national jurisprudence can count as a factor in the formation of customary law, and international tribunals may also draw examples from national cases. The ICTY has, for example, referred to national cases several times.⁵²⁴ Furthermore, courts that do apply international law can be part of a dialogue on experiences and lessons learnt and can thus contribute to each others’ efforts.

524 ICTY, Trial Chamber, Tadic, 7 May 1997, papa 642., refers to the judgment of the French Cour de Cassation in the Barbie case, and ICTY, Trial Chamber, Furundzija, 10 December 1998, para 194, refers to British military courts. S. FERDINANDUSSE (2006) op. cit. 111.

Effective implementation also requires that courts interpret national law in conformity with international law. This is the so-called principle of consistent interpretation, and it has become, it seems, a general principle of law.⁵²⁵ This principle assists in reaching that national law does not put obstacles on the application of international law. The Hungarian Constitutional Court in its decision of 1993 also acknowledged this rule by saying that “the Constitution and domestic law must be interpreted in a manner whereby the generally recognized international rules are truly given effect.”⁵²⁶ In order to exercise this rule, however, judges have to be aware of the rules of international law.

Serious errors in domestic procedures can most probably be cited from many countries. In Hungary, the Supreme Court⁵²⁷ thought in the Korbely case⁵²⁸ that the interpretation of common Article 3 of the Geneva Conventions should be drawn directly from Additional Protocol II⁵²⁹. What makes this already serious misinterpretation worse is that this was opined in connection with events that happened in 1956, before Additional Protocol II was adopted. Eventhough it does occasionally occur that a treaty is interpreted or clarifi ed in light of documents adopted later, confusing the scope of application of Additional Protocol II and Common Article 3 is a serious mistake given that both the Commentary to the Geneva Conventions⁵³⁰, and both legal literature and state practice have repeatedly manifested that the scope of application of the two instruments are different. Although the Supreme Court later corrected this reasoning⁵³¹, it gives us an insight on how much judges in certain cases understand international law⁵³².

525 S. more on the principle of consistent interpretation at FERDINANDUSSE (2006) op. cit. 146–153.

526 Hungarian Constitutional Court, Decision 53/1993 (13 October 1993).

527 For an analysis of the 1956 volley cases, s. Tamás HOFFMANN: Individual criminal responsibility for crimes committed in non-international armed confl icts – The Hungarian jurisprudence on the 1956 volley cases. In: Stefano MANACORDA – Adán NIETO (eds.): Criminal Law Between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions. Cuenca, Castilla la Mancha, 2009. 735–753.

528 Decision of the Supreme Court in the case of János Korbély, Bf.V. 1344/1998/3.

529 The qualifi cation of the 1956 revolution was seriously discussed within the Hungarian legal literature. S. B^RUHÁCS, János: 1956 a nemzetközi jogban. In: A^NTAL, Ádám – C^SERESNYÉS, Ferenc – K^AJTÁR, István (eds.): Tanulmányok az 1956. évi forradalom és szabadságharc 50.

évfordulójára. Pécs, PTE Állam-és Jogtudományi Kara, 2006.

530 „[…] the Protocol only applies to confl icts of a certain degree of intensity and does not have exactly the same fi eld of application as common Article 3, which applies in all situations of non-international armed confl ict.” PILLOD–SANDOZ–ZIMMERMANN op. cit. 1348, para 4447.

531 Decision of the Supreme Court, Revision Panel, Bfv. X. 207/1999/5.

532 For an analysis of the Korbély case and the legal error made by the Supreme Court, s. comment of Péter KOVÁCS: Yearbook of International Humanitarian Law 1999. Vol. 2. The Hague, T.M.C.

Asser Press, 2000. 375–377.

As Péter Kovács notes, “the interpretation of an anterior treaty on the basis of a posterior treaty is hardly reconcilable with the principle of effet intertemporel.”⁵³³

Evenmore, the European Court of Human Rights raised attention that the Hungarian courts interpreted the notion of crimes against humanity with a retroactive effect in that they referred to, among others, the ICTY Statute and the ICC Statute for a defi nition of crimes against humanity – documents that did not exist in 1956. In addition, Hungarian courts did not consider all elements of crimes against humanity applicable in 1956, specifi cally whether the attack formed part of State action or policy or of a widespread and systematic attack on the civilian population. Therefore, in addition to other reasons, the Court held that Hungary was in violation of Article 7 of the Convention.

In Estonia for instance, there is hardly any case-law, the only ones existing are related to genocide and crime against humanity committed by the Stalinist regime. Here retroactivity questions appeared, because the acts were committed between 1941 and 1949, however, the question whether these acts were considered criminal according to general international law at the time was not analyzed by the national courts. A common characteristic in Estonian national courts typically seems to be a lack of knowledge of international law and international case law, which resulted in that the judgments are “loftily worded and open to attack”.⁵³⁴

Finally, legal correctness is only one aspect of proceedings in international crimes, but „[n]ot only legislators and authors of constitutions need to be culturally open, given that they formulate the human rights and the criminal law subject thereto. Criminal judges must also be culturally open so that they can assess the perpetrators and victims in criminal proceedings arising from typical cultural confl icts equally.”⁵³⁵

Although it can be argued that the “insertion of an aut dedere aut judicare principle into these treaties testifi es to the strongly held belief of the international community that States are suffi ciently equipped to adequately address international crimes through the exercise of universal jurisdiction”⁵³⁶, it must also be examined whether those applying the law are equipped enough to proceed in a case concerning war crimes, especially in Central Europe.

533 Ibid. 376.

534 See Estonian participant at the conference „The Role of the Judiciary in the Implementation of International Humanitarian Law”, Budapest, 2007. Presentation on fi le with the author.

535 Otfried HÖFFE: Moral Reasons for an Intercultural Criminal Law. A Philosophical Attempt.

Ratio Juris, September 1998/11/3. 216.

536 RYNGAERT op. cit. 53.

Namely, effective war crimes procedures also require the knowledge, experience and often the language skills of the members of the judiciary.

Extensive literature and legal commentaries are regularly only available in languages foreign to the prosecutors and judges.⁵³⁷ This is an important aspect since lacking such resources one cannot really talk about effective application.

In Central Europe, although international humanitarian law and international criminal law are often taught as an optional subject, neither of these appears in the training of judges in the region. The basic sources are not to be found in the library of the courts or only in foreign languages. Therefore it would be illusory to say that prosecuting war crimes is not dependent on the will of the state and its sacrifi ce in terms of fi nancing, personnel and training.

In addition, the question is always raised, especially by judicial training institutions, whether this is a relevant topic today. There may be two answers.

In addition, the question is always raised, especially by judicial training institutions, whether this is a relevant topic today. There may be two answers.

In document Réka Varga (Pldal 158-192)