International Criminal Justice

Law and Practice from the Rome Statute to Its Review

Roberto Bellelli

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317114277
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

This volume presents an overview of the principal features of the legacy of International Tribunals and an assessment of their impact on the International Criminal Court and on the review process of the Rome Statute. It illustrates the foundation of a system of international criminal law and justice through the case-law and practices of the UN ad hoc tribunals and other internationally assisted tribunals and courts. These examples provide advice for possible future developments in international criminal procedure and law, with particular reference to their impact on the ICC and on national jurisdictions. The review process of the Rome Statute is approached as a step of a review process to provide a perspective of the developments in the field since the Statute's adoption in 1998.

PART I
Introduction

The fall of the Berlin wall and the resulting new balance of global powers have played a major role in the development of the concept of international criminal justice. The early 1990s witnessed a growing awareness in the international community of the importance that the principle of international legality and the rule of law at the domestic level have in maintaining and restoring lasting conditions for international peace and security. Inclusiveness of all relevant actors and sense of ownership have also progressively emerged as key factors for the long-run success of the means experimented with to contribute through criminal justice to conflict prevention and resolution.

The establishment of the UN ad hoc Tribunals for the former Yugoslavia and Rwanda is one of the most visible achievements of this process, the climax of which may be identified in the 1998 adoption of the Rome Statute of the International Criminal Court. It is from here – by establishing a permanent institutional and systematic framework for ensuring accountability for the most serious crimes of international concern – that the concept and role of international criminal justice became an irreversible feature of the efforts of the international community to produce security and stability.

The historic mission that the ICC is entrusted with will necessarily require the level of horizontal and widespread support among states that only true universality in participation and implementation may bring over time. Building in this direction is a shared responsibility for all relevant actors, including the ICC itself, whose credibility and authority will be directly affected by its practices. It is in this respect and with this objective that the permanent Court could make the best of the abundant information gathered along avenues already explored by others, in order to go smoothly on track and concentrate its resources on the factors that really make it unique as to mandate and procedure. Over 15 years of intensive, independent judicial experience of the UN ad hoc Tribunals and of the hybrid Special Court for Sierra Leone, in particular, has resulted in groundbreaking practice and case law that has rapidly become a reference point for all other mechanisms of international criminal justice and – not dissimilar to the International Military Tribunal at Nuremberg – will most likely continue to have such a role for a long time into the future.

It is primarily for national jurisdictions to take advantage of the legacies of the international tribunals, in order to recover their sovereign right to exert criminal justice by increasing their ability to fight against impunity under the rule of the principles of independence, impartiality and fair trial. However, at the international level, the collective exercise of the responsibility to protect by means of judicial accountability requires that practices be monitored and recorded, as well as lessons drawn, assessed and treasured in the effort to maximize the impact of international endeavours on stabilization processes, and the deterrent effect on ongoing conflicts. The international tribunals, together with the other state and non-state actors in the field, are progressively focusing their attention on this task and the Rome Statute’s system would be the main beneficiary of this exercise.

An overview of the progressive institutionalization of international mechanisms for criminal accountability would, thus, enable a focus on the features of the ICC system which are most relevant to an analysis of the challenges that have so far emerged from its practices. Learning from previous experiences is a crucial step in this process and the practices of the UN ad hoc Tribunals, as well as of the Special Court for Sierra Leone, provide clear guidance on how to overcome recurrent issues, strengthen consensus and allow for a successful, lasting and sustainable fight against impunity for the most serious crimes of international concern.

SECTION I
Steps in History

Chapter 1
The Establishment of the System of International Criminal Justice

Roberto Bellelli

1. International Crimes as a Threat to International Peace and Security

Armed conflicts and authoritarian regimes have troubled contemporary history and continue to cause unimaginable atrocities and sufferings to civilian populations. The violation of the most basic rules that mankind has established to regulate the use of force by states, both during armed conflicts (international humanitarian law) and in time of peace (human rights law), translates into the commission of the most serious crimes of concern to the international community as a whole.

In fact, not only gross violations of the law of armed conflicts and of human rights immediately afflict the victims on the ground – whatever might be the extension of their commission on the affected territory – but also bear with them the potential of uncontrollable and expansive effects. Individual criminal conducts committed on the scale, intensity and gravity in question, even when not inscribed in a framework of illegitimate use of force, are inextricably entrenched with actions and responsibility of states, thus reverberating the issue of criminal accountability on the international order.

In this regard, the international community holds a direct and strong interest in ensuring that criminal justice is adequately dealt with by any appropriate mechanism capable of reducing the destabilizing impact and the threat posed by such crimes to international peace and security.1 Consequently, the punishment of such crimes is a matter that goes beyond the classic approach to criminal justice, based on the principle of sovereignty.

In the aftermath of WWI and WWII the international community devoted efforts in setting up a framework of norms regulating the use of force in armed conflicts,2 with the adoption of binding international instruments that over time have built the corpus of the existing international humanitarian law (IHL). However, in light of the traditional approach to criminal law, the effectiveness of such treaties has been left solely to the willingness of states to implement them.

2. Shared Responsibilities in the Suppression of Crimes of International Concern

A. The Primary Responsibility of States

Under general principles of criminal law it is a state’s responsibility, as an essential feature of their sovereignty, to prevent and suppress criminal conducts, normally according to territorial or personal links.

In the aftermath of a dictatorship or of a conflict, various political reasons have often hindered, by means of delays or denial, effective punitive justice to make perpetrators accountable of horrendous crimes. Domestic political reasons may include the need to achieve stability through alternative measures, such as mechanisms for social reconciliation, including through the establishment of truth commissions and the granting of amnesties. International factors could be related to peace and include unsettled relationships at the national borders, the wider context of international agreements, or interests reaching beyond the crisis area.

Therefore, the punishment of genocide, crimes against humanity and war crimes, when left to the action of states, often results in the impunity of those most responsible for their commission, because of the absence or weakness of the rule of law, or for domestic political reasons of the territorial or national state, or because they are exempted from national justice in order to maintain occasional international compromises or, finally, because of the lack of judicial cooperation in the investigation and extradition of suspects.

B. Lessons Learnt throughout History

In this regard, significant lessons may be drawn from the otherwise very different situations originated by the military occupation of Northern Italy in 1944 and by the Democratic Kampuchea regime in Cambodia in the 1970s. In both situations, territorial states did not timely exert their primary responsibilities to prosecute international crimes either for reasons relevant to regional security or in an effort to ensure social stability and reconciliation. However, the non-applicability of statutes of limitations to serious violations of IHL enabled, in both situations (some) perpetrators to be brought to justice over lengthy periods of time and in the context of changed national and international influences.

In the first case, war crimes committed by Italian nationals during the civil war which mainly affected Northern Italy in 1944 were timely prosecuted, although sentences applied were shortly thereafter covered by amnesty laws aimed at the reconciliation of the country after the fascist dictatorship.3 Consistently, the scope of such amnesty laws did not include war crimes committed by foreign troops on Italian soil.4 However, the prosecution of foreigners suspected of violations of the laws and customs of war was delayed for long time. In fact, in spite of the timely investigations conducted by the Allied Forces, suspects were allowed to leave the country and no effective action was taken to obtain their extradition.5 The lack of institutional independence of the military judiciary before its radical reform in 1981 led to a ‘provisional dismissal’ of all investigations in the 1960s, upon a political decision made at the governmental level and which took into account the prevailing needs of international post-war alliance agreements. Only in the early 1990s,6 the files containing the Military General Prosecutor’s cases were ‘discovered’7 and effective investigations started in the competent territorial jurisdictions.8

Similarly, in the case of the crimes committed during the Democratic Kampuchea era, the agreement for their prosecution and punishment reached between Cambodia and the United Nations has only recently, and after nearly 30 years, led to the initiation of proceedings against Khmer Rouge leaders, while some of those allegedly most responsible for those crimes passed away long before.9

Bringing suspects to justice with a delay of more than 50 years has an impact on the stabilization process and, more generally, on the society; but it also bears some important judicial implications, including the availability of evidence and the natural ageing of suspects: when trials are finally initiated, e.g., the issue of the ability of the accused to stand trial would normally arise as well as that of a progressive deterioration of witness evidence. However, in both the aforementioned situations survivors, victims and their descendants, as well as local communities participate in proceedings. The fact that after lengthy periods of time, trials for the most serious international crimes so deeply involve victimized populations is a validation of the widespread understanding that the ascertainment of judicial truth for senior perpetrators of such crimes is an essential element of the social reconciliation process that is needed to ensure a lasting peace in a conflict area and, therefore, international security and stability.

C. The Responsibility to Protect

Included in the last consideration above, is the fact that the debate on the principle of sovereignty of states has in recent times developed the concept of a link between the right of non-intervention in internal affairs, based on the principle of equal status (sovereign equality) of states, and the obligation of states to protect civilians from...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Foreword
• Preface
• List of Abbreviations
• PART I INTRODUCTION
• PART II INVESTIGATION AND PROSECUTION
• PART III JURISDICTION AND CASE-LAW
• PART IV THE ICC AND ITS FUTURE
• Index