The International Criminal Court and National Courts

A Contentious Relationship

Nidal Nabil Jurdi

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317027300
• Edition: 1
• Topic: Derecho
• Subtopic: Tribunales

This book analyzes the position of the ICC in relation to national court systems. The research illustrates that what seemed to be a straight forward relationship between the ICC and national courts under the complementarity mechanism, proves to be much more complex in practice. Using the referrals of Uganda and Darfur, the book demonstrates ways in which it might be possible to prosecute for crimes currently not prosecuted by the ICC and brings to light possible solutions to overcome the gaps in law and practice in the jurisdictional relation between the ICC and national systems. It will be of value to academics, students and policy-makers working in the area of international law, international organizations, and human rights.

Chapter 1
Introduction

Background

The last century witnessed two world wars and a series of international and national conflicts marked by massive atrocities to humanity and human existence. The ‘never again’ promise of Nuremberg that crimes against humanity and aggression would ‘not go unpunished’ has not been realized.1 Many criminals and violators of human rights and humanitarian law escaped legal accountability for their crimes.

The failure of the early attempts to establish a permanent international criminal court to prosecute violators of international humanitarian law and international criminal law2 placed the burden of implementing international criminal law (ICL) on national judicial systems. In the last 50 years, ICL has relied mainly on the indirect enforcement mechanism, where the primary duty rested on states to implement ICL in their domestic judicial systems.3 However, the national enforcement of ICL has been generally criticized for its lack of consistency and failure to prosecute many violations of international criminal law. In the last 60 years, numerous factors have hindered the indirect enforcement system from delivering justice systematically and effectively. Domestic courts have had various political and legal reasons to refrain from prosecuting international crimes. For instance, the Bangladeshi attempts to prosecute Pakistani prisoners of war, after the war of independence, were aborted after the Pakistani-Bangladeshi agreement in 1973.4 Several perpetrators were members of the ruling political elite, which made it difficult, if not impossible, for the local judiciary to prosecute them. It is difficult to imagine, in an authoritarian country (as was Pol Pot’s Cambodia) the national courts prosecuting their own head of state. Often rulers provide themselves with permanent domestic immunities to prevent any possible prosecution, such as General Pinochet. Despite the aforementioned obstacles, the indirect enforcement system has witnessed key juridical moments when domestic trials prosecuted such figures as Eichmann,5 Demanjuk,6 Barbie,7 Polyukhovich,8 Priebke9 and others.10 However, these cases are few cases compared to the uncounted instances of impunity.

In principle, the international obligations of national judicial systems to prosecute international crimes arise from ratifying international conventions and treaties that impose such obligation to prosecute or extradite. Additionally, the obligation may rise from international customary laws imposing obligations on states to prosecute crimes that emerge as jus cogens in international law generating an erga omnes duty on all states belonging to the international community.11 In state practice, the application of these duties has been far from uniform. Some states have refrained from adjudicating, while others have lacked national laws to implement international obligations. The French judicial system, for example, at one point lacked proper national laws to prosecute war crimes under 1949 Geneva Conventions.12 In addition, some states have adopted implementing legislations that restrict the scope of obligation stipulated by treaties. The US Military Commissions Act amending the War Crimes Act of 1996 is one example.13

Under international customary law, states tend to refrain from initiating proceedings in the absence of a body of law, whether ratified international treaty or national implementation legislation. Genocide is now a jus cogens crime under customary international law.14 However, the Swiss Appellate Military Tribunal in the case of Niyonteze held that it could not apply the rules of the Genocide Convention of 1948, as Switzerland had not ratified the Convention.15

These shortages should not minimize the primary role of the indirect enforcement mechanism for enforcing international criminal law. ICL is expected to be enforced through national judicial systems. This holds for at least two reasons. First, no international court is independently capable of prosecuting and enforcing ICL against worldwide violations of humanitarian law and human rights. Second, in the current world order, basic principles of legality and sovereignty of the state act in favour of considering the indirect enforcement mechanism as the primary enforcing body of ICL on the national level.16

The post-Cold War era has witnessed an increase in the interest in suppressing violations of ICL – it is no coincidence that we witnessed two ad hoc Tribunals and a permanent international criminal court in one decade – and this has an impact at various national levels. The Rwandan courts have tried thousands since 1996 for their role in the atrocities of 1994.17 Moreover, Belgian courts have also initiated prosecutorial steps against Rwandans involved in these massacres. In 1993, Bosnia, after the Dayton agreement, prosecuted and sentenced Sretko Damjanovic and Borislav Herak.18 The famous case of Tadic has in fact started with the prosecution of Tadic by German courts.19 These contradicting cases of accountability and impunity indicate that although certain improvements were noticed, systematic and effective global implementation of ICL on the national level remains incomplete.

The idea of establishing a permanent international criminal court for prosecuting violations of international humanitarian law and international criminal law is more than 75 years old.20 The first attempt to establish a world criminal court dates back to 1937, when a draft statute for a court to try international terrorists was initiated by the League of Nations.21 After the Second World War, the General Assembly requested that the International Law Commission (ILC) draft a statute for an international criminal court, and to codify international crimes.22 Working parallel to the ILC, the General Assembly established a Committee charged with drafting the Statute of an International Criminal Court. The Committee succeeded in submitting a draft statute in 1951,23 which was subsequently amended in 1953.24 The effort of the ILC and the Committee, however, did not materialize because of disagreement over the definition of the crime of aggression25 – the result of the absence of the political will in a world sharply divided by the Cold War.26 Although a definition of aggression was adopted in 1974, the ILC did not resume its work on the subject until the late 1980s.27

The political changes the world witnessed in the 1980s and 1990s opened the door for establishing a permanent criminal court. The end of the Cold War eliminated 40 years of global tension on the international level. This created relief in international relations in general, permitting an atmosphere that allowed progressive steps towards the establishment of the International Criminal Court.

In 1989, Trinidad and Tobago initiated a resolution in the General Assembly asking the ILC to expand its codification role to include drafting a statute for an international criminal court.28 The end of the Cold War and the establishment of the two ad hoc Tribunals for Yugoslavia and Rwanda created both momentum and expectations for the establishment of a permanent international criminal court.

The International Law Commission submitted its Draft in 1994 to the General Assembly, which proceeded by adopting a resolution establishing the Ad Hoc Committee with mandate to review the draft.29 The Ad Hoc Committee was succeeded by the Preparatory Committee in 1996. The General Assembly mandated the Preparatory Committee ‘to discuss further major substantive and administrative issues arising from the ILC Draft’.30

In July 1998, the Rome Diplomatic Conference realized the aims of these efforts by establishing the International Criminal Court (ICC). The conference succeeded after five weeks of intensive negotiations among delegates and heavy lobbying by various non-governmental organizations (NGOs). The Rome Statute of the International Criminal Court was adopted in an emotional vote of 120 to seven, with 21 countries abstaining.31 The Rome Statute established a permanent international criminal court complementing national judicial systems in exercising jurisdiction over international crimes. In the climax of jubilations at the final ceremony on 18 July, the president of the Drafting Committee asserted that ‘[t]he world will never be the same after the establishment of the International Criminal Court’.32 This phrase warrants attention to the extent that the presence of the Court assists in a value-change towards a world order anchored to pursuing global justice and respecting human rights.33 The Court’s establishment will be a yardstick for a world court’s effectiveness on ending impunity and prosecuting international crimes on the national and international level.

International Criminal Law: Lacking Effective Enforcement Mechanisms?

The enforcement of international criminal law on the national level has not been satisfactory as states have often either been unable or unwilling to apply the law.34 Governments, on several occasions, have ignored violations of humanitarian law and human rights.35 ICL has proven especially difficult to prosecute when governments themselves or high-ranking officials may be culpable. For many, ICL has been a law without an enforcement mechanism. The indirect enforcement system of ICL has been widely criticized for lack of enforcement, whether because of lack of polit...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of International Instruments
• Table of Cases
• Table of Legislation
• List of Abbreviations
• Foreword
• Acknowledgements
• About the Author
• 1 Introduction
• 2 History and Legal Background of the Principle of Complementarity
• 3 Complementarity in Abstract
• 4 Possible de Jure and de Facto Hurdles to Complementarity
• 5 Complementarity and State Referral: The North Uganda Situation
• 6 Complementarity and Security Council Referral: The Darfur Situation
• 7 Conclusion
• Bibliography
• Index