PROHIBITING SERIOUS THREATS TO DEMOCRATIC GOVERNANCE AS AN INTERNATIONAL CRIME AGAINST DEMOCRACY. Brian D. Tittemore

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1 PROHIBITING SERIOUS THREATS TO DEMOCRATIC GOVERNANCE AS AN INTERNATIONAL CRIME AGAINST DEMOCRACY Brian D. Tittemore Introduction Among the proposals presented for discussion by the Council on Foreign Relations Independent Task Force on Threats to Democracy was an initiative to proscribe threats to democratic governance as crimes under international law. Preparatory documents for the work of the task force included a draft recommendation that the international community recognize unconstitutional interruptions of the democratic process as a crime against democracy that violates international human rights. The international community should pursue the establishment of individual criminal responsibility under international law for crimes against democracy as a component of its efforts to deal with threats to democracy. 1 Not surprisingly, this proposition has proven to be both intriguing and controversial. The remarkable strides over the past decade in the enforcement of crimes against humanity, war crimes, and other atrocities, culminating most recently in the entry This paper was prepared in part with the support of the War Crimes Research Office, Washington College of Law, American University, Washington, D.C., which included the dedicated research assistance of former WCRO Dean s Fellow Kaveri Subbaro. I am grateful to Christina Cerna for her insightful comments on an earlier draft of this paper. I am also thankful to Professor Brad Roth and Professor Gregory Fox, whose critical perspectives on the proposal to develop a crime against democracy enriched my thinking on this topic. Finally, I wish to express my sincere gratitude to Professor Diane Orentlicher, for supporting my involvement in this project and for her discerning comments on my analysis. The views expressed in this paper are those of the author and do not necessary represent the views of the Inter- American Commission on Human Rights or the Organization of American States. 1 Council on Foreign Relations, International Task Force on Immediate Threats to Democracy, Draft Recommendations, International Legal Mechanisms. (May 2002)

2 2 into force on July 1, 2002, of the Statute for the International Criminal Court (ICC), 2 has given renewed optimism to those who see a critical role for international law and its institutions in securing accountability for conduct considered to offend humanity. It therefore seems appropriate to canvass the possibility of building on these developments to address other egregious situations of concern to the international community. In this connection, the work of this task force is premised on democratization as an international imperative. According to this approach, every person, individually and in association with others, has the unassailable right to adopt and live in a democracy that guarantees fundamental human rights. The approach also envisions a responsibility on the part of established democracies to preserve, protect, and promote democratic governance. If these underlying propositions are accepted, utilizing international criminal law to deter and punish conduct that threatens democratic governments appears to be a plausible method to suppress harmful conduct of concern to the international community. At the same time, conduct that is defined as threatening a particular political ideology or system of government seems, at least at first glance, to fit poorly with established international crimes, which are generally framed in terms of serious violations of the lives and security of persons. 3 Challenges to this approach may also arise with respect to the manner in which the elements of such crimes are defined, given long-standing debate and uncertainty over the definition and characteristics of democratic governments. Related to this concern is the existence of governments that are democratic in name only, which emulate democratic attributes but are, in reality, authoritarian regimes that oppose the true self-determination of their populations. Moreover, elevating threats to democracy to the level of an international crime may call into question the 2 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), corrected by the procés-verbaux of November 10, 1998, and July 12, 1999, entered into force July 1, 2002 (hereinafter Rome Statute). 3 As discussed later, international crimes broadly defined are not limited to the core crimes of genocide, crimes against humanity, and war crimes but also have been expanded to address other categories of conduct of concern to the international community, including hostage taking, threats to the safety of internationally protected persons, and drug trafficking. See infra notes 15 to 19 and accompanying text.

3 3 propriety of grants of amnesty and asylum that historically have played a role in brokering negotiated solutions to coups and similar international crises. While these concerns are not necessarily unanswerable, they constitute substantial issues for consideration in evaluating the possibility and advisability of developing a crime against democracy. This analysis identifies possible legal foundations and mechanisms for prescribing certain threats to democracy as international crimes and addresses the concerns just noted. In particular, a closer examination of the proposal in the context of related areas of international law and practice suggests that the most plausible legal foundation for developing an international crime against democracy can be framed in respect of the most blatant challenges to democratic societies, the military coup d état. The paper concludes that threats to democracy per se, as defined for the purpose of the task force report, 4 are not now proscribed as crimes under international law. At the same time, prohibiting certain egregious threats to democracy under international criminal law, in particular those involving the threat or use of force, could play a constructive role in deterring and establishing accountability for those threats. Specifically, prohibiting threats to democratic governments under international criminal law would signify states shared condemnation of this conduct at the international level. Further, the mechanisms by which a crime of this nature might be enforced could render participants liable for prosecution not only in the state against which the threat was perpetrated but in any other state party to an international instrument recognizing such a crime, and possibly before an international tribunal. 5 Accountability for crimes against 4 The task force report defines threats to democracy for the purposes of its study as encompassing coups, autocoups, and other unconstitutional interruptions of the democratic process as well as threats from the gradual erosion of democracy and democratic institutions. Task Force Report on Immediate Threats to Democracy, Introduction and Background. 5 As elaborated on later, treaties prescribing international crimes most often contain aut dedere aut prosequi provisions that oblige states parties to prosecute persons suspected of committing such crimes, regardless of their nationality, when they are found in the state party s territory and are not extradited in accordance with the terms of the treaty for prosecution in another jurisdiction. Select treaties, such as the Genocide Convention and, most recently, the Rome Statute, also contemplate prosecutions before an international tribunal. See infra notes 20 to 22 and accompanying text.

4 4 democracy would complement a defendant s corresponding responsibility for war crimes, crimes against humanity, and other established crimes under international law that, as history has demonstrated, frequently accompany or follow the overthrow of a democratic regime. The analysis then identifies two international legal regimes that could provide a foundation for declaring certain threats against democratic societies to be crimes under international law and for articulating the elements of such crimes: international human rights law; and the principles and practices governing the collective peace and security of states. International human rights instruments generally recognize democratic principles and practices as indispensable for the effective protection of fundamental human rights and freedoms. To this end they guarantee certain minimum political and related rights intrinsically linked to democratic systems of government and explicitly refer to democratic societies as providing the benchmarks for determining whether limitations on certain rights may be permitted and justified. Moreover, state practice, as manifested principally through the processes of international and regional organizations, has recognized the consolidation of representative democracy as a significant element in maintaining peace and security between states. Indeed, threats to democratic governments have, in exceptional circumstances, justified collective intervention by the international community, including military intervention, to restore a democratic government overthrown by force. The treatment of democratic rights and principles under these two regimes therefore provides a foundation for developing new law criminalizing at least the most serious threats to democratic governments under international criminal law. It also provides indicia of the mental and physical elements by which crimes against democracy might be defined, including criteria for identifying the democratic governments against which such crimes can be perpetrated. Drawing on these precedents, the analysis offers a definition of a crime against democracy, namely the threat or use of force to remove or replace a democratic government or to prevent the installation of a democratically elected government.

5 5 The discussion canvasses two possible mechanisms for prescribing a crime against democracy under international law. States are competent to negotiate a treaty that specifically prohibits crimes against democracy and requires states parties to prosecute or extradite individuals suspected of having committed such crimes. Another possible approach is to include crimes against democracy within the jurisdiction ratione materiae of the International Criminal Court. The aim of this strategy could not be achieved until July 1, 2009, the earliest date on which noninstitutional amendments to the Rome Statute can be proposed. Based on the negotiating histories of existing international criminal law treaties, it is recommended that under either option preparatory initiatives be undertaken by intergovernmental and nongovernmental organizations. This may include, for example, promulgating studies and resolutions that set forth a legal and political underpinning for a crimes against democracy, which may then relied on as a foundation for multilateral treaty negotiations. Owing to the long-standing and predominant role that democratic principles have played in the formation and work of the Organization of American States (OAS), the inter-american system may be a particularly fertile venue for pursuing preparatory initiatives. Threats to Democracy in the Context of International Criminal Law Several preliminary issues concerning the nature of international criminal law and its potential utility in addressing threats to democracy warrant consideration. International criminal law has been described as the convergence of two different legal disciplines, criminal law aspects of international law, which consists of a body of international prescriptions containing penal characteristics, and the international aspects of national criminal law, which addresses such matters as extradition and international legal cooperation in criminal matters. 6 International crimes, which constitute a 6 See generally M. Cherif Bassiouni, Characteristics of International Law Conventions, in I INTERNATIONAL CRIMINAL LAW 1 2 (2d ed., M. Cherif Bassiouni, ed., 1999); G. O. W. Mueller and Douglas J. Besharov, Evolution and Enforcement of International Criminal Law, in id. at 60. The definition of international criminal law is variable and may have several meanings depending on the

6 6 substantive aspect of the former, are defined in their narrowest sense as acts that international law declares to be criminal, whether by treaty or under customary international law. 7 International authorities generally have defined the corpus of crimes falling within this category to include genocide, crimes against humanity, war crimes, the crime of aggression, and torture. 8 Other crimes provided for under international treaties, but the status of which under customary international law is less clear, include apartheid, 9 certain forms of terrorism, 10 and crimes against internationally protected persons. 11 particular context. Georg Schwartzenberger, for example, identifies six possible meanings of international criminal law: (1) the law governing the territorial scope of municipal criminal law; (2) internationally prescribed municipal criminal law norms; (3) internationally authorized municipal criminal law operation; (4) municipal criminal law common to all civilized nations; (5) the law of international cooperation in administering criminal justice; and (6) international criminal law in the material sense penal proscriptions deriving from international law. See Georg Schwartzenberger, The Problem of an International Criminal Law, 3 Curr. L. Prob. 262 (1950). 7 See Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 308 (5th ed. 1998). 8 See, e.g., Rome Statute, supra note 2, Art. 5; Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN.Doc. S/25704/Add.1/Corr.1 (1993), reprinted in 32 I.L.M (1993); The Princeton Principles on Universal Jurisdiction 28 (2001), Principle 2; Regina v. Bartle et al. [1999] 2 W.L.R. 827, March 24, 1999 (House of Lords), reprinted in 38 I.L.M. 581 (1999). The definition of the crime of aggression nevertheless remains the subject of controversy, and as of this writing agreement had not yet been reached on the definition of the crime of aggression for the purpose of the International Criminal Court. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, A/50/22 (1995), paras. 54, 55; Proceedings of the Preparatory Commission at its Ninth Session (April 8 19, 2002), UN Doc. PCICC/2002/L.1/Rev.1, p. 17 (April 22, 2002). 9 International Convention on the Suppression an Punishment of the Crime of Apartheid, adopted and opened for signature and ratification by General Assembly resolution 3068 (XXVIII) of November 30, 1973, UN GAOR Supp. (No. 30), at 75, UN Doc. A/ See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature December 16, 1970, 860 U.N.T.S. 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, September 23, 1971, 974 U.N.T.S See, e.g., Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, December 14, 1973, 1035 U.N.T.S. 167 (hereinafter Internationally

7 7 While the specific evil targeted by each international crime varies, the purposes and objectives underlying the development of the concept of international crimes is at base no different from that of national criminal justice, namely to deter and prevent harmful conduct, to prosecute those suspected of having committed such conduct, and to punish those found guilty. 12 That said, the classification of offenses as crimes under international law in and of itself may be considered to have particular ethical and deterrent significance, because such classification denotes the universal repugnance of the conduct to the international community and its agreement that certain crimes deserve punishment regardless of who or where the perpetrator is. 13 Three additional characteristics of international crimes further distinguish them from crimes under domestic law: 1. International crimes impose duties and liabilities under international law upon individuals and render them liable to criminal punishment. 14 Protected Persons Convention). 12 M. Cherif Bassiouni, Characteristics of International Law Conventions, in I INTERNATIONAL CRIMINAL LAW, supra note 6, at 3. For a discussion of utilitarian, retributivist, and other theories of punishment from an international perspective, see Naomi Roht-Arriaza, Introduction, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 1, (Naomi Roht-Arriaza, ed., 1995) 13 Adriaan Bos, The International Criminal Court: A Perspective, in THE INTERNATIONAL CRIMINAL COURT, THE MAKING OF THE ROME STATUTE ISSUES, NEGOTIATIONS, RESULTS 463 (Roy S. Lee, ed., 1999). 14 As the International Military Tribunal at Nuremberg famously declared, "[i]nternational law imposes duties and responsibilities upon individuals as well as upon States [i]ndividuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and not only by punishing individuals who commit such crimes can the provisions of international law be enforced." International Military Tribunal, Judgment, reprinted in 41 AM. J. INT L L. 172, (1947). This may be contrasted with international law more generally, which establishes duties and rights as between states. Human rights law, while it renders individuals the objects of international protection, concerns itself with the obligations of states and their official agents to respect and ensure respect for the human rights of individuals. I/A Court H.R., In the matter of Viviana Gallardo (American Convention on Human Rights, Art. 1(1)), Judgment of November 13, 1981, Ser. A and B, No. G.101/81, para. 13. See similarly I/A Court H.R., International Responsibility for the Promulgation and Enforcement of Laws in

8 8 2. International crimes generally are limited to conduct of fundamental concern to the international community, principally conduct that offends common standards of civilization, such as genocide and other crimes against humanity, 15 or that is determined to threaten peace and security between states, such as the crime of aggression. 16 Certain additional crimes having transnational elements or Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), Advisory Opinion OC-14/94 of December 9, 1994, Series A, No. 14, para. 59 (finding that the enforcement of a law manifestly in violation of the American Convention on Human Rights by agents or officials of a state results in international responsibility for that state, and that if the enforcement in question constitutes an international crime, it also will subject the agents or officials who execute it to international responsibility). 15 Genocide and crimes against humanity are addressed in a variety of international instruments. Definitions of genocide have tended to mirror that provided for in the 1948 Genocide Convention whereas definitions of crimes against humanity vary. See, e.g., Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Charter), August 8, 1945, 82 U.N.T.S. 279 (hereinafter IMT Charter), Art. 6(b) (providing the tribunal with jurisdiction to prosecute "crimes against humanity defined as murder, extermination, enslavement, deportation, and other inhumane acts committed against a 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. ); Convention on the Prevention and Suppression of the Crimes of Genocide, December 8, 1948, 78 U.N.T.S. 277; Statute of the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, (hereinafter ICTY Statute), Art. 1 (providing the ICTY with jurisdiction to prosecute persons responsible for "serious" violations of international humanitarian law, which in turn include grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity), Art. 5 (defining crimes against humanity as certain offenses when committed in armed conflict, whether international or internal in character, and directed against any civilian population, namely murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts); Rome Statute, supra note 2, Art. 5 (providing as crimes within the jurisdiction of the court "the most serious crimes of concern to the international community as a whole," namely genocide, crimes against humanity, war crimes and the crime of aggression). 16 Although the notion of aggressive war has a long history under international law, the precise definition of the crime has been the subject of debate and remains contentious. It is envisioned as a crime falling within the jurisdiction ratione materiae of the International Criminal Court, should states agree on a definition and the conditions upon which the court will exercise jurisdiction with respect to this crime. See,

9 9 otherwise encompassing conduct of particular concern to the international community, 17 such as drug trafficking 18 and the safety of certain internationally protected persons, 19 also have been made the subject of specific treaties. The terms of these treaties generally address the incorporation and adjudication of such crimes under domestic law as well as methods of interstate cooperation in preventing, investigating, and punishing the offenses. 3. Universal jurisdiction may be exercised by states to prosecute certain crimes, including war crimes, crimes against humanity, and piracy, regardless of any territorial or nationality linkage with the state concerned. 20 In addition, treaties e.g., IMT Charter, supra note 17, Art. 6(a) (defining crimes against peace as "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"); UN Charter, Art. 2(4) (requiring member states to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or on any other manner inconsistent with the purposes of the United Nations); Rome Statute, supra note 2, Art. 5(1)(d), (2) (providing the International Criminal Court with jurisdiction over the crime of aggression, and that the "Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."); Proceedings of the Preparatory Commission for the International Criminal Court, Ninth Session, April 8 19, 2002, Annex IV Crime of Aggression, UN Doc. PCNICC/2002/L.1/Rev.1 (April 22, 2002) (indicating that a final definition of the crime of aggression had not yet been agreed upon for the purposes of the Rome Statute). For a general history of international efforts to define the crime of aggression, see BENJAMIN FERENCZ, DEFINING INTERNATIONAL AGGRESSION (1975). 17 See generally 1 INTERNATIONAL CRIMINAL LAW, supra note 6, at United Nations Convention Against Illicit Traffic on Narcotic Drugs and Psychotropic Substances, December 20, 1988, UN Doc. E/CONF.82/15, reprinted in 28 I.L.M. 493 (1989). 19 See, e.g., Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, 49 UN GAOR Supp. (No. 49), at 299, UN Doc. A/49/ In the present context, universal jurisdiction is defined as criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. See Princeton Principles, supra note 8, Principle 1. See also BROWNLIE, supra note 7, at 305; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, 401, 403, 423. Judges

10 10 prescribing international crimes often contain provisions that oblige states parties to prosecute nationals and foreigners who may be on their territory and who are not extradited for prosecution in another jurisdiction. 21 In some instances, the treaties also contain provisions explicitly contemplating prosecutions before an international tribunal. 22 Rosalyn Higgins, Pieter Kooijmans, and Thomas Buergenthal of the International Court of Justice recently delivered a joint separate opinion in which they pronounced upon the attributes of universal criminal jurisdiction under international law. ICJ, Case Concerning the Arrest Warrant of April 11, 2000 (Democratic Republic of Congo v. Belgium), Judgment of February 14, 2002, joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal. In their decision, the judges restricted the notion of universal jurisdiction properly so-called to universal criminal jurisdiction in absentia that provides a state the right to prosecute absent any territorial or nationality linkage, and distinguished this jurisdiction from that reflected in aut dedere aut prosequi provisions of criminal law treaties, which the judges considered is more accurately described as obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere. Id., paras. 41, 51. The judges also concluded that there is no established practice by which states exercise universal jurisdiction properly so-called, but likewise that there is no rule of international law that makes such practice illegal. Id., paras. 45, 46, 59. Accordingly, states may choose to exercise a universal criminal jurisdiction in absentia, but only in respect of those crimes regarded as the most heinous by the international community, namely piracy, war crimes, and crimes against humanity, and then only subject to certain additional safeguards necessary to prevent abuse and to avoid jeopardizing stable relations between States. Id., paras For examples of aut dedere aut prosequi provisions, see UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, G.A Res. 39/46/Annex of December 10, 1984, UN GAOR 39th sess, Supp. No. 51, UN Doc. A/39/51, p Art. 7(1) (providing that "The State Party in the territory under whose jurisdiction a person alleged to have committed any offense referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution"); Hague Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 10, Art. 4(2) (obliging States Parties to prosecute alleged offenders where they are present in a State Party s territory and are not extradited pursuant to Article 8 of the Treaty). 22 See, e.g., Genocide Convention, supra note 15, Art. VI (providing that persons charged with genocide or related acts shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. ).

11 11 Beginning with the creation by the United Nations (UN) Security Council of the International Criminal Tribunal for the former Yugoslavia in and culminating most recently in the coming into force of the Statute for the International Criminal Court, the past decade has witnessed an unprecedented resurgence in the establishment and operation of international tribunals aimed at securing accountability for serious violations of international humanitarian law. These advances have in turn facilitated a consolidation and clarification of the elements of such crimes and the principles governing their prosecution and punishment. Developments at the international level have been accompanied by enhanced efforts by domestic authorities to exercise jurisdiction with respect to war crimes, crimes against humanity, and other international crimes. 24 Accompanying these changes has been the emergence of a third category of mixed or hybrid tribunals having both national and international elements. 25 These have included the International Special Court for Sierra Leone 26 and the still-pending Extraordinary Chambers in the Courts of Cambodia. 27 In this context, it seems both appropriate and potentially practicable to contemplate the use of international criminal law to address the serious consequences of threats to democratic societies and their institutions. At the same time, history has proven the recognition of new international crimes to be a complex, 23 ICTY Statute, supra note For an account of recent efforts to prosecute former Chilean dictator Augusto Pinochet Ugarte before domestic courts in Spain, for example, see Richard Wilson, Prosecuting Pinochet: International Crimes in Spanish Domestic Law, 21 HUM. RGTS. Q. 927 (1999). 25 For a discussion of several of these tribunals and their implications for the use of universal jurisdiction, see Diane F. Orentlicher, Universal Jurisdiction: Charting Its Future, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PURSUIT OF ACCOUNTABILITY FOR CRIMES UNDER INTERNATIONAL LAW (Stephen J. Macedo, ed.), forthcoming. 26 See Report of the Secretary General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000). 27 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, available at:

12 12 protracted, and frequently controversial process, 28 and it may therefore be expected that prescribing a new international crime against democracy will require substantial time. More specifically regarding the development of an international crime against democracy, there has been much debate about the tension between accountability for international crimes and the democratic will of affected societies to offer amnesties or pardons for such crimes in the interests of reconciliation. 29 Considerably less has been written, however, concerning the potential complementarity between democracy and accountability where democracy itself is in jeopardy, particularly through such brutal means as military coups. 30 Similarly, there appears to have been no formal consideration 28 To give one topical example, efforts to define a comprehensive crime of terrorism have plagued the United Nations for decades, through the ad hoc UN committee on international terrorism, negotiations for the Rome Statute, and the pending draft UN Convention on Terrorism. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Done at Rome on July 17, 1998, A/CONF.183/10, Resolution E, A/CONF.183/C.1/L.76/Add.14, at 8 (indicating that efforts to include terrorism within the jurisdiction ratione materiae of the court proved unsuccessful, with the result that any further proposals to include this or other crimes as an amendments to the subject matter jurisdiction cannot be made for a period of seven years following the coming into force of the treaty); Rome Statute, supra note 2, Art. 121(1). See similarly UN Press Release L/2993 of February 1, 2002, on Ad Hoc Committee on Assembly Resolution 51/210, 6th Sess., 26th mtg. (February 1, 2002) (indicating that the Ad Hoc Committee Established by General Assembly Resolution 51/201 of December 17, 1996, which is charged with preparing a comprehensive international treaty on terrorism, had not reached an agreement on, inter alia, a definition of terrorism under article 2 of the draft treaty); Report of the Sixth Committee, UN Doc. 34/786 (December 1979) (indicating that a subject matter oriented approach to preventing, controlling and suppressing terrorism dominated the ad hoc UN committee on international terrorism in 1973, 1977, and 1979 because efforts to develop a comprehensive definition of terrorism proved politically difficult). 29 See, e.g., TRANSITIONAL JUSTICE HOW EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz, ed., 1995); Juan Méndez, Accountability for Past Abuses, HUM. RGTS. Q. 19 (1997); José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, in STATE CRIMES: PUNISHMENT OR PARDON 23 (Aspen Institute, 1989). 30 Among the leading proponents of a role for international criminal law in efforts to establish and maintain democratic governments are Morton Halperin and Kristen Lomasney, who have recommended the negotiation of a treaty that would declare it a crime for an individual to prevent a democratically elected

13 13 of such a proposal at the international level. Neither the long-standing efforts to develop a code of offenses against the peace and security of mankind nor the related negotiations that led to the creation of the International Criminal Court have counted threats to democratic governance per se to be among the conduct recognized as international crimes proposed to be internationally criminalized and prosecuted. 31 The absence of debate on this issue confirms that conventional and customary international law does not currently list participation in the overthrow of a democratically elected government per se as a crime, nor does it provide domestic or international tribunals with jurisdiction to prosecute such conduct. 32 Endeavoring to prescribe an international crime against democracy, under a new treaty or possibly through an amendment to the subject matter jurisdiction of the ICC might nevertheless play a constructive role in deterring or suppressing immediate threats to democracy. In particular, regulating serious threats to democracy as crimes under international law would articulate in the most severe terms possible the international community s shared condemnation of this conduct. It also could threaten perpetrators with prosecution not only in the state against which the threat was manifested, but potentially in all states parties to the treaty establishing such a crime and, in the event of an amendment to the Rome Statute, before an international criminal tribunal. At the same time, several potential limitations in such a strategy can be identified. government from taking office or to remove them from office by force. Morton H. Halperin and Kristen Lomasney, Protecting Democracy Abroad: Bringing Despots to Justice, WASH. Q., Spring 1999; Morton H. Halperin, Democracy and Human Rights: An Argument for Convergence, in REALIZING HUMAN RIGHTS: MOVING FROM INSPIRATION TO IMPACT 249, 259 (Samantha Power and Graham Allison, eds. 2000). 31 See, e.g., Report of the International Law Commission on the Draft Code of Offenses Against the Peace and Security of Mankind, UN GAOR, 5th Sess., UN Doc. A/CN.4/25 (1950); Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its 46th session, May 2 July 22, 1994, Chapter II.B.1, UN GAOR, 49th sess. Supp. No. 10, A/49/10 (1994), See generally Sharon Williams, The Draft Code of Offenses against the Peace and Security of Mankind, in I INTERNATIONAL CRIMINAL LAW, supra note 6 at As Gregory Fox observed in his comments on a previous draft of this paper, a treaty providing for a crime against democracy would be law-making rather than a codification of existing law.

14 14 Of particular concern is the risk of abuse of a treaty prescribing such crimes by governments that may use threats of prosecution or extradition under the treaty to suppress otherwise legitimate opposition to their rule. This concern is linked with the related question of whether a proposed treaty provision could be drafted and enforced with sufficient precision to exclude governments that simulate democratic attributes but that in reality constitute authoritarian regimes that oppose the true self-determination of their populations irregularities in the March 2002 presidential elections in Zimbabwe starkly illustrate the validity of these concerns. 33 Further, as noted in later, some debate remains concerning whether a global right to democracy can properly be said to have emerged, which in turn may call into question the feasibility and legitimacy of efforts to impose individual criminal responsibility under international law for serious threats to or violations of this and related rights. A third potential complication arises from the evolving view that certain serious violations of human rights may not be made the subject of amnesties, by reason of states obligations under international human rights treaties and as a matter of general international law. 34 It cannot be disregarded in this connection that per se or de facto 33 Zimbabwe president Robert Mugabe s victory in the March 2002 presidential elections in that country was widely condemned by the international community, based on allegations that Mr. Mugabe s ruling party had physically attacked and killed opponents of the Mugabe regime for months prior to the election and that president Mugabe had implemented laws that curtailed press freedom, limited mass gatherings, undermined the independence of the electoral administration, and altered the requirements for voting. David J. Simon, Zimbabwe s False Friends, New York Times, March 16, The Inter-American Commission on Human Rights, for example, has found laws restricting or prohibiting prosecutions of the military in El Salvador, Uruguay, and Argentina to violate those states obligations under the American Convention on Human Rights. IACHR, Report No. 26/92 (El Salvador), 82nd sess., OEA/Ser.L/V/II.82 (September 24, 1992); IACHR Report No. 29/92 (Uruguay), 82nd sess., OEA/Ser.L/V/II.82, Doc. 25 (October 2,1992) ; IACHR, Report No. 24./92 (Argentina), 82nd sess., OEA/Ser.L/V/II.82, Doc. 24 (October 2, 1992). See also I/A Court H.R., Barrios Altos Case (Peru), Judgment of March 14, 2001, Series C No. 75. Similarly, the International Criminal Tribunal for the former Yugoslavia recently opined that an amnesty law by which a state may attempt to absolve perpetrators of torture would violate the general international legal principle proscribing torture and relevant treaty provisions and therefore should not be accorded international legal recognition. Prosecutor v. Anto

15 15 amnesties from prosecution have played a role in negotiated solutions to coups and other irregular interruptions of democracy in the past. 35 To the extent that international law can be considered to reject impunity through amnesties for international crimes, elevating certain threats to democracy to the level of international crimes may limit the terms by which negotiated resolutions to such crises might be achieved. This dilemma may be among the most troublesome of those raised by a proposal to criminalize coups; at best, it could render negotiations to resolve coups more difficult; at worst, it could prolong and exacerbate the harmful consequences of coups by removing any incentive for their leaders to relinquish power. 36 Furundžija, Case No. IT-95-17/1-T, Judgment of December 10, 1988 (ICTY Trial Chamber II), 155. (hereinafter Furundžija Judgment [ICTY Trial Chamber II]). The defendant appealed the Trial Chamber s Judgment to the ICTY Appeals Chamber, and the Appeals Chamber dismissed the appeal in a judgment dated July 21, 2000, without specific comment on this point. Prosecutor v. Anto Furundžija, Case No. IT /1-A, Judgment of July 21, 2000 (ICTY Appeals Chamber). International jurists and publicists have likewise identified growing recognition of a general incompatibility between serious crimes under international law and amnesties, including those granted by successor regimes. See, e.g., Princeton Principles on Universal Jurisdiction, supra note 8, Principle 7 (providing that: 1. Amnesties are generally inconsistent with the obligations of states to provide accountability for serious crimes under international law as specified in Principle 2(1); (2) The exercise of universal jurisdiction with respect to serious crimes under international law as specified in Principle 2(1) shall not be precluded by amnesties which are incompatible with the international legal obligations of the granting State). See also Naomi Roht-Arriaza, Special Problems of a Duty to Prosecute: Derogation, Amnesties, Statutes of Limitations, and Superior Orders, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 57, 59 (Naomi Roht- Arriaza, ed., 1995). 35 See generally Naomi Roht-Arriaza, Conclusion: Combating Impunity, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE, supra note 12, at 281, (providing examples of internationally mediated settlements of civil conflicts or departures of dictators, including Cambodia in 1989 and 1991, Haiti in 1993 and 1994, and El Salvador in 1993, where amnesties from prosecution for particularly grave human rights violations were not clearly precluded). 36 In similar terms, Brad Roth and Gregory Fox expressed strong reservations to me in connection with this aspect of a proposal to develop crimes against democracy, pointing out, inter alia, that even in Haiti the UN Security Council seemed unwilling to trade an effective amnesty for coup-plotters for the return of a democratically elected leader and that, in the context of coups leading to armed conflict, a treaty of this nature would appear to inconsistent with the amnesty provisions of Article 6(5) of Additional Protocol II to

16 16 Before turning to a detailed analysis of the possible foundation and elements of an international crime against democracy, it must be recognized that international criminal law as currently constituted already has a constructive role to play in addressing threats to democracy, to the extent that participants in such incidents frequently engage in conduct that may comprise core international crimes, such as crimes against humanity or war crimes as well as assorted treaty crimes, such as forced disappearances and torture. 37 Where individuals involved in a coup or other serious threat to democratic governance may reasonably be suspected of having committed or otherwise participated in existing international crimes, international law permits, and in some instance requires, that states investigate, prosecute, and punish those individuals for their conduct. 38 Past coups in jurisdictions such as Chile and Haiti, to name only two, were accompanied and followed by mass and systematic violations of fundamental human rights of these states populations. These violations included the arbitrary and indiscriminate execution of civilians, forced disappearances, arbitrary and prolonged detentions, and torture and other cruel, inhuman, or degrading treatment or punishment. 39 Many of these atrocities constitute crimes that certain treaties specifically oblige states parties to investigate, the 1949 Geneva Conventions. Without joining in a debate at this stage on the merits of these and other potential implications of a crime against democracy, I do not dispute that these concerns must be taken into account in evaluating the political wisdom of addressing threats to democracy through international criminal law. 37 See, e.g., UN Torture Convention, supra note 21; Inter-American Convention on Forced Disappearance of Persons, in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 8 (May 22, 2001). For reports of instances of forced disappearances and torture following the 1973 military coup in Chile, see, e.g., IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.34 Doc. 21 corr. 1 (October 25, 1974), Chapters V, IX. 38 See generally Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J (1991). 39 See, e.g., IACHR, Report on the Situation of Human Rights in Haiti, OEA/Ser.L/V/II.83 (March 9, 1993), Chapter II; IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.34 Doc. 21 corr. 1 (October 25, 1974); IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66 Doc. 17 (September 9, 1985).

17 17 prosecute, and punish. 40 Possible violations of existing international criminal law by coup plotters therefore warrant attention by states regardless of whether the concept of a crime against democracy is eventually developed. Foundation for Prescribing Crimes against Democracy under International Law While the prerogative of states to negotiate treaties is virtually unrestricted, 41 the prescription of crimes under international conventions has particularly serious implications for participating states and their populations. For example, such conventions generally require states parties to ensure that their domestic criminal laws and extradition agreements include the prescribed crimes and oblige the participating states to prosecute or extradite persons found within their territory who are suspected of having committed such crimes. Depending on their terms, these treaties may render a state party s nationals liable for prosecution not only within the state s domestic courts but potentially before the courts of all states parties. In part for these reasons, any effort to regulate certain threats of democracy under an international criminal law treaty would doubtless require the articulation of a compelling basis to attract the political support of governments and their constituents. And beyond these policy considerations, pronouncing a clear definition of a crime against democracy is necessary for compliance with the principle of legality, See, e.g., UN Torture Convention, supra note 21, Arts. 6, 7, 12, 13; Inter-American Convention on Forced Disappearance of Persons, supra note 39, Art. I(b). 41 One explicit restriction upon the ability of states to negotiate treaties is the prohibition under Article 53 of the Vienna Convention on the Law of Treaties of any derogation from a peremptory norm of general international law, which can only be modified by a subsequently norm of general international law having the same character. Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27, p. 289, Art In its broadest sense, the principle of legality provides that fundamental rights can only be restricted by law as the legitimate expression of the will of the people. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, 1935, P.C.I.J., Series A/B, No. 65, p. 56. The expression of the principle as a fundamental element of criminal law, nullum crimen sine lege, nulla poena sine lege, mandates that individual criminal responsibility be based upon crimes that are classified and described in precise and unambiguous language that narrowly and clearly defines the punishable offense. See I/A Court H.R., Castillo Petruzzi et al., Judgment of May 30, 1999, Ser. C No. 52, para. 121.

18 18 by which crimes must be classified and described in precise and unambiguous language that narrowly and clearly defines the elements of the punishable offense. 43 Therefore, the first step in establishing a crime against democracy is to identify an international right to democracy that is the subject of international regulation. As the following analysis illustrates, the development of such a right is well under way. The next step is to proscribe the worst breaches of this right under international criminal law. A growing body of literature advocates the emergence under international law of a right or entitlement to democratic governance. 44 These claims have been based to a 43 The variety of definitions of political democracies and their fundamental components present a particular challenge in defining a crime against democratic governments. According to the UN General Assembly, while there is no one universal model of democracy, all democracies share common features, most basically being based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. GA Res. 55/96 on Promoting and Consolidating Democracy, UN Doc. A/RES/55/96 (February 28, 2001). As elaborated upon below, other international authorities and publicists have defined modern liberal democracies more specifically in terms of the means by which a state s population participates in their institutions of government, the independence of the various branches of government, and the guarantee of fundamental human rights. See Phillippe C. Schmitter and Terry Lynn Rand, What Democracy Is.And Is Not, in THE GLOBAL RESURGENCE OF DEMOCRACY 49 (Larry Diamond and F. Plattner, eds., 1996) (defining modern political democracy as a system of government in which rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and cooperation of their elected representatives ); Inter-American Democratic Charter, Declaration of Lima, adopted by the OAS General Assembly during its 28th special session in Lima, Peru on September 11, 2001, GA Res. AG/RES.1 (XXVIII-E/01) (hereinafter Democratic Charter), Art. 3 (providing that the [e]ssential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based upon secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government ). 44 See, e.g., Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT L L. 46 (1992); Gregory H. Fox, The Right to Political Participation in International Law, 17 YALE INT L L. J. 539 (1992); Christina Cerna, Universal Democracy: an International Legal Right or a Pipe Dream of the West?, 27 N.Y. J. INT L L & POL. 289 (1995); James Crawford, Democracy and the Body of International Law, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW 91 (Gregory H. Fox and Brad R. Roth, eds., 2000).