JURISDICTION, INDIVIDUAL RESPONSIBILITY AND THE DEFINITION OF WAR CRIMES; INTERNATIONAL
4.1. On the level of international jurisprudence: effects of jurisprudence of international tribunals on domestic war jurisprudence of international tribunals on domestic war
crimes procedures
While discussing war crimes procedures in front of domestic courts, we must also examine whether statutes, rules of procedure and case law of international tribunals have an effect of clarifying international rules and whether they ultimately have an effect on procedures of domestic courts633.
International law contains far more obligations related to substantive criminal law than to procedural law. Taking international legal obligations for war crimes (grave breaches) as an example, discussed in Chapter 2.3. of the present study, or similar obligations for genocide or crimes against humanity, we may observe that the relevant international treaties formulate numerous obligations that affect states’ criminal codes or that put obligations on the legislator to criminalize certain acts by the way of criminal law. Many of such obligations are ius cogens.
At the same time, if we examine procedural obligations at the international sphere, we may conclude that it is really only the human rights treaties that contain procedural constraints or conditions binding on states procedures, and humanitarian law obligations, if any, have basically copied the obligations stipulated in human rights treaties. Summing up, normally humanitarian law treaties tell states which acts to criminalize, but they don’t tell how to try them, apart from repeating the human rights obligations.
When examining substantive criminal law, it is undeniable that case law of international tribunals has an important infl uence on both the evolution of
633 The interaction or cross-reference of international courts and tribunals to each others’ judgments is an equally interesting topic, but steps over the limits of the present work. In this topic s. KOVÁCS, Péter: Szemtől szembe… Avagy, hogyan kölcsönöznek egymástól a nemzetközi bíróságok, különös tekintettel az emberi jogi vonatkozású ügyekre. (Face to face… Or how do international courts borrow from each other, especially in the fi eld of human rights) Acta Humana, 2002/49. 3–12.
international criminal law and on domestic procedures. In the case of violations committed in non-international armed confl icts it is obvious that case law of international tribunals played an important role in that the ICC Rome Statute accepted violations of non-international confl icts as war crimes, and thus, this case law also frequently formulates national case law. Referring to a rule as customary law by international courts and tribunals may also contribute to how national courts view that certain rule. The effect of their case law is also important in how domestic courts determine elements of grave breaches/war crimes or the qualifi cation of confl icts634.
When it comes to procedural law, however, it is more diffi cult to make a link, as the procedural rules of international tribunals have been formed on a completely different foundation than those of state procedures. Procedural rules of states have, namely, been formulated as a result of an organic historical and legal development, while in the case of international tribunals, political considerations have often played an important role.
As an example, procedural rules of international tribunals are based on the contradictorial system mainly as a result of the huge infl uence of the United States during the formulation of statutes and rules of procedures of such tribunals, however, many inquisitorial elements have also been included. The result is a mixed system, which raises many diffi culties in practice and cannot be said to be the result of an organic development.
Other important differences between procedural rules of international tribunals and national courts may be the consequence of the fact that international tribunals are subjects of international law. Therefore the effect the procedural rules of international tribunals can have on domestic procedures depends largely on whether the rule is independent from the international legal personality or the international feature of the tribunal/court. Where, as an example, the rule relies on the international feature of the tribunal, such rule cannot be embodied in a national system, or will have to be relying on international cooperation in criminal matters.635
At the same time, international and national procedural law have common elements, namely those deriving from human rights obligations as the minimum
634 For example, the ICTY’s Tadiç judgment has been quoted by numerous state courts as a guide to the qualifi cation of confl icts and thus the determination of the applicable law.
635 Such examples are the deferral of investigations (ICTY, ICTR), the effects of the principle of complementarity (ICC), the possibility to conduct on-site investigation, etc. S. Göran SLUITER: The Law of International Criminal Procedure and Domestic War Crimes Trials. International Criminal Law Review, 2006/6. 628.
common standard. Although the exact application of human rights in international procedures is debated, it is surely the human rights standards that provide the basis and framework of international criminal procedures.636 What is certain is that apart from the human rights obligations (fair trial, equality of arms, etc.) there are no general obligatory international rules for war crimes procedures of domestic courts.
Despite the differences of international and national procedures there are important aspects where the infl uence of rules relevant to and jurisdiction of international tribunals can be observed. As examples we can mention the protection of witnesses in international procedures. Although such rules already existed in domestic procedures, international tribunals have given it such a specifi c dimension which can serve “as a point of departure, or international standard, which is capable of infl uencing domestic war crimes trials. At least, one could say that the rules also have relevance in relation to national prosecutions of war crimes.”637
We may also mention as an example the case where Dutch authorities carried out a procedure against Afghan nationals for war crimes.638 In this case the accused argued for the equality of arms referring to the ICTY’s fair trial rules.
The Dutch court in the Van Anraat case639 took ICTY rules proprio motu as a basis, despite that the ICTY statute does not have any binding effect in this respect on the Netherlands.640
There is evidence that national courts consider the jurisprudence of international tribunals as a source in their proceedings in the Canadian practice as well. In Mugesera v Canada, the Canadian Supreme court stated that „[t]hough the decisions of the ICTY and ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their fi ndings should not be disregarded lightly by Canadian courts applying domestic legislation provisions […] which expressly incorporate customary international law.”641
636 Ibid. 610.
637 Ibid. 627.
638 Case of Habibullah Jalalzoy, LJN: AV1489, Rechtbank ‘s-Gravenhage, 09/751005-04, The Hague District Court.
639 Public Prosecutor v Van Anraat, LJN: AX6406, Rechtbank ‘s-Gravenhage, 09/751003-04 (District Court of the Hague).
640 S. SLUITER op. cit. 629.
641 Supreme Court of Canada, Mugesera v Canada (Minister of Citizenship and Immigration), 28 June 2005, ILDC 180 (CA 2005). Para 126.
In the following lines the subject of examination will be the ways law, jurisprudence and proceedings of international tribunals specifi cally can effect domestic war crimes trials as regards substantive and criminal procedure law.
4.1.1. Substantive criminal law aspects
Defi nition of the contents of customary rules and reference to a certain rule as customary are typical fi elds where domestic courts rely on or refer to judgments and decisions of international tribunals. Especially if we look at the development of jurisprudence on crimes committed in non-international armed confl icts, an eventual obligation to prosecute these crimes, the elements of such crimes or universal jurisdiction applicable to such crimes, we may witness the important infl uence of international case law on national case law.
The same is true with the defi nition of crimes or elements of crimes. Since the treaties usually do not describe the elements of the crimes with the same precision as national law often does, state courts are left with elements of crimes formulated in annexes to statutes of international tribunals and with the case law of such tribunals. In fact, this is the only source national courts can reach to, to defi ne elements of war crimes or grave breaches.
Certain criminal law principles may have different interpretations on the national and the international level. The question is whether these two interpretations have any effect on each other. The ICTY, for example, pointed out that although nullum crimen sine lege is a general principle of law, some factors, such as the specifi c nature of international law, the fact that there is not one authority as legislator in international law and the supposition that the norms of international law will be implemented leads to the fact that the legality principle is different in international law than in national law when it comes to their application and standards.642
The applicability of the nullum crimen sine lege principle to the interpretation of crimes is also an interesting issue and has partially been discussed in Chapter 3.2.1. The European Court of Human Rights in the Jorgić case found that a stricter interpretation of genocide by the ICTY and ICJ can not be relied on in front of domestic courts, because these judgments were delivered after the commission of the offence. If, however, an interpretation was consistent with
642 Prosecutor v Delalic et al., Judgment, Case No. IT-96-21-T, Trial Chamber II, 16 November 1998. Para 431.
the essence of the offence in question and was reasonably foreseeable, such an interpretation was legal.643
Questions of interpretation of war crimes seem to be another issue, however.
As a comparison, whereas a wider interpretation of the crime of genocide by a national court may result in that the accused would face a harsher regime in certain states, the only limits to interpretation of war crimes are the rules of international humanitarian law: states are free to criminalize violations that are not war crimes, but are not free to criminalize acts that are not violations at all. This cannot be said about the crime of genocide, because the Genocide Convention, which makes it obligatory for states to criminalize genocide, is not a convention setting up a whole set of legal rules, such as the Geneva Conventions, rather defi nes one particular crime and obliges states to punish it in national law. Still, obviously states remain free to include a stricter variant of genocide, in this case this stricter variant can only be applied if it was adopted before the commission of the offence.
The effect of nullum crimen sine lege on concepts of criminal responsibility and defences is also contested.644 In the end, it seems that “the nullum crimen principle outlaws any deviant practice under jurisdictions as well, at least as far as the general parts of criminal law are concerned.”645 Boot explains the differences of the application of the nullum crimen sine lege to international tribunals and domestic courts by the following features:
(i) international treaties were meant to be implemented by domestic legislation and were not meant to be directly implemented by international tribunals;
(ii) therefore defi nitions are not as elaborated as they would be in national criminal codes or in the Rome Statute – which was, from the beginning, intended to be directly applied by the ICC -;
(iii) therefore the Tribunals developed the elements of crimes and conditions of responsibility adapted to their own procedures and the features of an international tribunal646.
From the above we may conclude that there is no standardized understanding, universally and formally approved, of the basic criminal law principles which
643 Jorgić v Germany, Application no. 74613/01, European Court of Human Rights, Judgment of 12 July 2007, paras 112 and 114.
644 S. George P. FLETCHER: Basic Concepts of Criminal Law. Oxford/New York, Oxford University Press, 1998. 107.
645 Van der Wilt (2008), p. 260.
646 BOOT op. cit. 306–307.
could lead to a uniform application of international criminal law by domestic courts.
4.1.2. Criminal procedural law aspects
As seen above, the only procedural frameworks relevant to international criminal law tribunals are provided by human rights treaties647. However, some derivations are necessary, eventhough not uncontested. A perfect example of an attempt at reduced applicability of human rights law by an international tribunal due to the particularity of international criminal trials is demonstrated by the following opinion: „[t]he fact that the International Tribunal must interpret its provisions within its own legal context and not rely in its application on interpretations made by other judicial bodies is evident in the different circumstances in which the provisions apply. The interpretations of Article 6 of the ECHR by the European Court of Human Rights are meant to apply to ordinary criminal and, for Article 6 (1), civil adjudications. By contrast, the International Tribunal is adjudicating crimes which are considered so horrifi c as to warrant universal jurisdiction.
The International Tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence.”648
Although this decision received strong criticism and its fi nding was not followed by subsequent case law as such, it provides a good example when an international tribunal is struggling with human rights law in its procedure.649
When considering whether there are international standards, apart from human rights law, for international war crimes prosecutions, Sluiter notes that in determining whether such international standards exist, the following factors play an important role:
a. the complexity and volume of war crimes prosecutions;
b. security risks in countries concerned;
c. consequences of investigations for national security;
d. high level leaders as accused;
647 S. KOVÁCS, Péter: Emberi jogok és humanitárius nemzetközi jog: versengés vagy kiegészítés?
(Human rights and humanitarian international law: competing or complementing notions?) Föld-rész, Nemzetközi és Európai Jogi Szemle, 201/III/1–2. 63.
648 ICTY, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadic, Case No. IT-94-1-T, T. Ch. II, 10 August 1995.
649 S. SLUITER op. cit. 620.
e. the truth-fi nding and reconciliatory functions of international criminal tribunals;
f. the great dependency on national jurisdictions and law enforcement offi cials.650
The next question is, to what extent are international criminal procedure rules to be applied by domestic courts in war crimes trials. In the Van Anraat case in the Netherlands651, the Dutch court considered proprio motu the ICTY law in relation to this question, although the ICTY jurisprudence having no binding effect on the Netherlands.652 This makes sense, as domestic war crimes procedures are also in need of specifi c procedural rules for war crimes trials, and they gain inspiration from international cases, even if these are not binding on them.
One has to bear in mind that when applying international criminal procedure in domestic war crimes trials, the judges also have to consider conforming a foreign system to their own: as for example the ICTY procedural rules are mainly following common law procedures, it would be diffi cult to apply typically these rules in an inquisitorial procedure. However, some rules may have developed in international criminal procedure from practical considerations, irrespective of common law or continental law traditions, such as the rules related to protection of witnesses – in such cases it may be useful and less diffi cult to use international procedure as reference for the national judge in a war crimes case.
These thoughts cannot be better expressed than as Sluiter formulated: “[i]f one acknowledges possible shortcomings of the domestic law of criminal procedure in respect of war crimes investigations and prosecutions this may change views as to the incompatibility between the law of international criminal procedure and domestic law of criminal procedure. Especially, if one adopts the legitimate position that domestic law of criminal procedure has not been developed for and is to a certain degree ill-suited to deal with war crimes investigations and prosecutions there is from a national perspective a vacuum, where international criminal procedure can fulfi ll a useful gap-fi lling function, in spite of possible confl icting models of criminal procedure.”653
Furthermore, “International criminal procedure may in spite of all its fl aws fulfi ll an important gap-fi lling function and serve as important point of reference
650 Ibid. 626.
651 S. Chapter 3.1.2. for a description of the case.
652 SLUITER op. cit. 629.
653 Ibid. 634.
for participants in domestic war crimes trials with an open eye and mind for procedural solutions and approaches coined in other systems. In this light, the
‘legislator’ in the fi eld of international criminal procedure should become aware of its relevance and impact beyond the scope of international criminal trials.”654 4.1.3. Effects of the functioning of international tribunals on national
justice systems
Finally, we must mention the important effects the functioning of international tribunals, especially the ICTY, but also the ICTR, have had on the respective national justice systems. These effects had been a logical result of the completion strategy of both Tribunals, acknowledging that the need to defi ne a timeframe for the closing of proceedings of both Tribunals go parallel with increasing the capacities of domestic authorities, including the need to adjust the quality of such proceedings to international standards, which also meant adjusting national legislation enabling such changes and procedures.
In the case of the ICTY, the Rules of the Road program, signed by the participants of the Dayton Peace Agreement in 1996, stipulated that national authorities could only arrest suspects – not indicted by the ICTY – with the authorization of the Prosecutor. This method was expected to prevent arbitrary arrests, arrests made without reasonable ground or steps motivated by political grounds.
The OTP has given green light in more than half of the cases: the ICTY has reviewed 1419 documents concerning 4985 suspects, and gave its authorization for indictment in case of 848 persons.655 This review mechanism inevitably had an improving effect on domestic mechanisms.
One year later, in 1997, Rule 11bis was added to the Rules of Procedure and Evidence of the ICTY and ICTR. Rule 11bis, amended four times since 1997, basically makes it possible that the Tribunals refer cases to domestic jurisdictions.
The reason for the adoption of Rule 11bis was similar to the Rule of the Road program: on one hand to ease the workload of the Tribunals by handing over cases of mid-to low level suspects, and, on the other hand, to progressively involve domestic authorities in the procedures656.
654 Ibid. 635.
655 KIRS (2011) op. cit. 400.
656 BEKOU op. cit. 726.
According to Rule 11bis, which is basically identical for both Tribunals, the Tribunal, after confi rming the indictment, but before the start of actual proceedings, irrespective whether the accused is in its custody, may decide, through a special bench consisting of three judges (an ordinary bench in case of ICTR) whether to refer a case to the domestic courts. Such court may be the court of the territorial state, the custodial state or any state that has jurisdiction and is willing and able to proceed.
The question to which domestic court the case should be referred is to be decided by the bench;657 usually the principle of ’signifi cantly greater nexus’
The question to which domestic court the case should be referred is to be decided by the bench;657 usually the principle of ’signifi cantly greater nexus’