INTERNATIONAL CRIMINAL JURISDICTION

Transcription

1 INTERNATIONAL CRIMINAL JURISDICTION Jo Stigen, 7 February Some Introductory remarks National criminal jurisdiction is a function of the state s sovereignty An international court is an international subject, but possesses no sovereignty Its jurisdiction must be given by sovereign states; in a way and with a scope according to international law There is, however, an important limit to states jurisdiction that an international court must not necessarily observe: immunity Also: while national courts will be more directly bound by the national legislator, an international court will typically be very dynamic The jurisdiction of an international criminal court can be tailor made to a certain situation or more general to meet future demands Note that there are hybrid criminal courts; mixes of national and international 2. How can the issue of the validity and scope of international jurisdiction be raised? Can an international court assess the validity of its own jurisdiction? o This has previously been controversial IMT: the jurisdictional provisions of the Nuremberg charter are binding upon the Tribunal as the law to be applied to the case. 1 Today it is widely recognised that an international criminal court must always assess the validity of its own jurisdiction o Read Tadic paras Also, it has been controversial whether the individual can invoke lack of jurisdiction o Read Tadic para. 55 o In Tadic, Germany or Bosnia-Herzegovina had not objected 1 Trial of the Major War Criminals, vol. I, p. 171, at

2 o Compare Eichmann and Noriega o See article 19(2) (a) of the Rome Statute (ICC) o But the state concerned can make the question moot by accepting the jurisdiction of the international court (or waive it ad hoc) See Tadic para. 56 o Compare the issue of immunity The ICJ can determine the jurisdiction of national courts, but not the jurisdiction of an international court Will a state have locus standi before an international criminal court regarding the issue of jurisdiction? o The general rule is no; not before the IMT of IMTFE; ICTY or ICTY. o But before the ICC according to article 19(2)(b) and (c) of the Rome Statute Why this difference? 3. The establishment of the IMT and the IMTFE WWI: read article 227 of the Versailles Treaty o The Leipzig trials WWII; see: o St. James Agreement (1941) o Moscow Conference (1943) o Nuremberg Charter (London Agreement, USA, UK, France, Soviet, 1945) 2 Later recognised by 19 countries 3 Over whom had the IMT jurisdiction? The international law basis: What power did the Big Four have? 2 The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal, 85 U.N.T.S Greece, Denmark, Yugoslavia, Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Austria, Honduras, Norway, Panama, Luxemburg, Haiti, New Zealand, India, Venezuela, Uruguay and Paraguay. 2

3 Read Trial of the Major War Criminals, p. 218 Could these four states be said to represent the international community? o It has been argued that the IMT was not truly international But this is recognised as one of the three ways under international law by which an international criminal court may be established o The argument goes more to the credibility than the legality What about the credibility? Which crimes were conspicuously not prosecuted here? Independence Impartiality Some words on the IMTFE o Read from the relevant document o Established 19 January 1946 by a Special Proclamation by the High Commander in Chief for the Allied in the Pacific Theatre, General Douglas McArthur o Mandate from the Allied States o Judges from eleven states o Which crimes were conspicuously not prosecuted here? 4. Control Council Law No. 10 tribunals 20 December 1945 a modified version of the Nuremberg Charter o Read from the document o Read from the Justice trial (why are the US trials so useful?): tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. [The] jurisdiction to enforce [international law] by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned. 4 What does the formulation by the belligerent government indicate? 4 Trial of Joseph Alstötter and Others, see Trials of War Criminals, vol. III, p. 954, at

4 o The US Military Tribunal considered itself a national court o From the Milch trial (even more explicit): It must be constantly borne in mind that this is an American court of Justice. 5 On the other hand, in the Justice trial the US Military Tribunal, with reference to the UN General Assembly s Nuremberg Principles, noted that: The General assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. [ ] The jurisdiction of this Tribunal rests on international authority. 6 And in the Flick trial: This Tribunal is not a court of the United States as that term is used in the Constitution of the [US]. [ ] It is an international tribunal established by the International Control Council. 7 The Big Four prosecuted partly according to national law, partly according to international law Their constitution was international, but each of the four courts as such was fundamentally national, as the states operated the courts individually 5. The establishment of the ICTY and ICTR How were the ICTY and the ICTR established? o The UN Security Council under Chapter VII of the UN Charter 8 o Legitimacy under international law? o Credibility? Read Tadic (ICTY, 2 October 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), paras. 21 et seq. Over whom have the tribunals jurisdiction? Tadic claimed that an international criminal court only could be established in two ways; by a voluntary treaty or by an amendment of the UN Charter. Tadic also claimed that the ICTY was not established by law, according to ICCPR article 14: In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 5 Trial of Erhard Milch, se Trials of War Criminals, vol. II, p. 773, at Trial of Joseph Alstötter and Others, at 983 et seq. 7 Trial of Frederick Flick and Others, see Trials of War Criminals, vol. VI, p. 1187, at Security Council resolutions 827 (1993) and 955 (1994). 4

5 The Appeals Chamber found that the principle is applicable to national courts, but also that that did not mean that an international court did not need to be established by law. An international court could not be set up at the mere whim of a group of governments. [It must] be rooted in the rule of law and offer guarantees embodied in the relevant international instruments [in order to] be established by law. 9 Tadic also claimed that a court could not be established by an administrative decision (the Security Council resolution), but had to be established according to law adopted by a legislator. o The Appeals Chamber noted that this principle did not apply inn an international context where there is no regular legislator. It sufficed that the court was established by an international organ with the competence to establish it The international criminal court (ICC) How is this court established Over whom has the Court jurisdiction? Is the establishment legitimate? o Lawful under international law? o Credibility? o Independence and impartiality? Which is the role of the Security Council? 7. Hybrid criminal courts Lebanon In Mars 2006 the Security Council requested the Secretary General to negotiate an agreement with Lebanon regarding a hybrid court to prosecute the killings and attempted killings on prominent Lebanese politicians, including former Prime Minister Rafiq Hariri, committed from early 2004 A negotiated agreement was never signed by the parties, and instead a Security Council resolution made it binding 11 9 Ibid., Ibid., Security Council resolution 1757 (2007). 5

6 The court primarily applies Lebanese law, but it is seated in the Netherlands and it has both Lebanese and international judges Kosovo Crimes committed in the late 1990s in Kosovo. No legitimate government to negotiate with; the court was established by the UN administration (UNTAET), which derived its competence from Chapter VII of the UN Charter The court is nevertheless based on national law and is an integral part of the national judiciary. 12 It is technically national, while its panels consist of two international and one national judge Kambodia June 2003; an agreement between UN and Cambodia to prosecute Red Khmer leaders for crimes committed under the regime of Pol Pot before a hybrid court. 13 Cambodia has insisted that the court, which has seat in Cambodia, shall only have national judges; but according to the final agreement there will be international judges as well. 14 Technically a national court with international participation East Timor As with Kosovo, no legitimate government to negotiate with Established by UNMIK according to Chapter VII. 15 Technically a national court integrated into the judiciary of East Timor Bosnia Prosecute crimes committed during the conflict Started as initiative between ICTY and UN High Commissionaire for Human Rights A main point is to take some of the caseload from the ICTY (mandate ends in 2010) 12 UNMIK/REG/2000/6 and UNMIK/REG/2000/64 with subsequent regulations. 13 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June In the first instance, three national and two international; in the second instance, four national and three international judges, cf. article 3(2) of the agreement between Cambodia and the UN. 15 UNMIK Regulation 2000/6 (2000); UNTAET/REG/2000/11 og UNTAET/REG/2000/15. 6

7 The legal foundation is a specific Bosnian law; it is technically national, something which was confirmed in Stankovich (ICTY, 2005): The State Court of Bosnia and Herzegovina, of which the War Crimes Chamber is a component, is a court which has been established pursuant to the statutory law of Bosnia and Herzegovina. It is a court of Bosnia and Herzegovina, a national court. The inclusion of some non-nationals among the judges of the State Court does [not] make that court any less a national court of Bosnia and Herzegovina. 16 The panels nevertheless have a majority of international judges Sierra Leone o But after 5 years, a majority of national judges o And by 2010, only national judges The statute of the SCSL is an integral part of an agreement between UN Secretary General and Sierra Leone (2000). 17 The agreement was adopted on the initiative of the UN Security Council. 18 The SCSL does not, unlike the ICTY and ICTR, derive its power from UN Chapter VII, but from the agreement; i.e. from the jurisdiction of Sierra Leone Yet, the curt noted in Taylor that The agreement between the united Nations and Sierra Leone is thus an agreement between all members of the united Nations and Sierra Leone. This fact makes the agreement an expression of the will of the international community. 19 The question as to the national or international status of the SCSL is important with regard to the issue of immunity (of Taylor) The SCSL is probably international, due to the fact that it is not an integral part of the Sierra Leone judiciary 16 Prosecutor v. Stankovich (IT-96-23/2), Pre-Trial Chamber, 17 May 2005, Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2000, cf. art. 1(2). 18 Security Council resolution 1315 (2000). The Council does, however, act under Chapter VII. 19 Prosecutor v. Charles Ghankay Taylor (SCSL I), Decision on Immunity from Jurisdiction, Appeals Chamber, 31 May 2004, 38. 7