A Critical Appraisal of Developments in International Criminal Law After Nuremberg: Part Three
This piece is the third and final installment of a three-part series comprising a Paper by Judge Patrick L. Robinson of the International Court of Justice. The first installment can be read here, and the second installment, here.
I now turn to discuss various “problems”, or more accurately, imperfections. I particularly wish to highlight the importance of rules of procedure and evidence in enabling fair and expeditious trials. Without evidence, and a fair and efficient procedure to facilitate introduction and consideration of that evidence, all the magnificent developments in the substantive law will come to nought.
- While significant progress has been made in confirming and developing the principle of individual criminal responsibility, and accountability has made a sizable dent into impunity, there is still a big gap between law and practice. Immunity for Heads of State may not exist in theory, but the ICC has experienced problems in pursuing cases against certain Heads of State.
- The type of evidence relied upon by international criminal courts raises its own challenges. At Nuremberg, the Prosecution relied largely on documentary evidence. The Teutonic virtue of recording everything and submitting everything to paper meant that the Germans effectively convicted themselves. The Nuremberg trials were completed in 10 months, with 33 prosecution witnesses, 61 defence witnesses, and 19 of the defendants testified. However, today’s breaches of international humanitarian law are overwhelmingly prosecuted on the basis of witness evidence. The ICTY website tells us that more than 4,650 witnesses have appeared before the ICTY, over the course of 10,800 trial days. This is a key reason why the Nuremberg Trials faced fewer concerns of “expeditiousness” than, for example, the ICTY and the ICC.
- The time-consuming nature of witness evidence raises another challenge for international criminal tribunals and courts – how to address mounting criticisms of lengthy and costly procedures, while protecting the rights of the accused and witnesses. For example, the Security Council set out a completion strategy for the ICTY in 2004, which envisaged that all trials would end by 2010. As you all know, that didn’t happen. Questions were raised by Counsel about whether certain expediting measures – such as joinder – were decided because of pressure from the Security Council, rather than on the merits of the case. There have been 50 amendments of the ICTY’s Rules of Procedure and Evidence over the years, many focused on expediting trials. Perhaps the most significant was one that I proposed, which provided for the reduction of an indictment on the basis of certain criteria. At present the ICTY Rules total 127 (or 162 when you factor in bis/ter, etc.). This is a phenomenal number considering that there were merely 11 rules of procedure at the IMT.
Mass crimes give rise to thousands of victims and hence thousands of potential witnesses. Ensuring the safety and well-being of witnesses adds to that time and also the associated costs, but is part of a tribunal’s duty. Most witnesses will not attend to give evidence unless they are granted appropriate protective measures, e.g. to give evidence in camera, and voice and face distortion. ICTY Rule 92 quinques states that witness evidence may be admitted in written form where a witness cannot attend due to intimidation.
Protecting the rights of the accused and witnesses is also a concern for national courts that are faced with many potential perpetrators. The ICTY Rules could form a template for other trials, and, with wise modification, for trials conducted by national courts for international crimes.
- In relation to the conduct of trials, I should note that the interaction of the two principal legal systems - the common and the civil law - at the ICTY, ICTR and ICC generally works very well. However, on occasions it has led to differing views about how best to deal with procedure and evidence. For example, in January 2016, a Judge of the ICC from a common law background dissented from a decision rendered by his two colleagues from a civil law background on the submission and admissibility of evidence in Laurent Gbagbo and Charles Blé Goudé, which declined to determine questions relating to the admissibility of evidence contemporaneously with the submission of evidence and left that task to the end of the case. In a common law system, this would be a strange procedure.
- I turn to some of the issues surrounding the crime of genocide at the international level. The crime of genocide has a very specific mens rea: the intent to destroy a group, in whole or in part. The mens rea of genocide imposes a very high bar, and has been difficult to prove. “Destroy” has been interpreted to mean physical and biological destruction. In Krstić, the ICTY Trial Chamber decided that customary international law required intent of physical or biological destruction. This interpretation of genocide has since been confirmed by the ICTY Appeals Chamber, as well as the ICJ in the Bosnia Genocide and the Croatia Genocide cases.
There have been questions as to whether the tribunals have been overly-restrictive in adopting this definition. Certain ICTY judgments subsequent to Krstić have shown a degree of unease with such a strict definition. Should they adopt a more socio-cultural understanding of genocide, as one author notes was adopted by German courts in Jorgić? In that case, the German courts understood ‘intent to destroy’ as broader than the physical or biological targeting of members of a group, to include destruction of the group conceived of as a ‘social unit’. This interpretation was subsequently confirmed as ‘reasonable’ by the European Court of Human Rights. What is your opinion – should the destruction of all of the cultural and religious monuments/buildings of a qualifying group or part of a group be classified as ‘genocide’ under a more expansive definition?
- While the role of national courts is, as I have noted, essential to the pursuit of international criminal justice, they face many challenges. Apart from those that I just described a few minutes ago regarding logistics and fairness, I wish to highlight two more:
(a) the first is one of capacity: many national courts may not have the capacity to try persons for these crimes – I am thinking expertise, infrastructure, etc. In that regard, the ICTY engaged in capacity building in the countries of the former Yugoslavia through training and other programs. Of course, more should be done. National courts need to be empowered to ensure that they can become more involved in trials for breaches of international humanitarian law.
(b) the second is the perception that, in some cases, for political reasons trials may be shams or never occur.
And that leads me onto some more ‘political’ considerations, that may potentially pose problems:
- Under Article 16 of the Rome Statute, the Security Council has the power to defer an investigation or a prosecution pursuant to a Chapter VII Resolution. This deferral can be renewed indefinitely. This tool represents an attempt to balance the potential tug between peace and justice. But the prospect of a political body dictating to the Court the deferral of an investigation or a prosecution does not further the image of an independent judicial body. A particularly notable example of a Resolution made under Article 16 is UNSC Resolution 1422 (unanimously adopted), dated 12 July 2002, which deferred investigations or prosecutions in respect of cases that may arise “involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation”, unless the Security Council decided otherwise. The Resolution noted that the intention was to renew this obligation for “as long as may be necessary”. These terms were renewed in 2003 by UNSC Resolution 1487 (albeit not unanimously).
- The ICC, with 124 States Parties, is the standing body in international criminal law with a global reach. It has come in for severe criticism because of the perception in Africa that it has been set up only to try Africans. The reality is that to date the ICC has only tried Africans. In my view, this presents a massive problem for the credibility of the ICC even if the majority of the cases from Africa have been referred by the States themselves. The ICC has started to pursue investigations and cases in other regions of the world. For example, since 2007, the ICC has conducted a preliminary examination of crimes against humanity and war crimes allegedly committed in Afghanistan by pro-government forces, and anti-government forces, including the Taliban. Events in Guinea, Nigeria, Burundi, Ukraine, Iraq/UK, Colombia, Palestine and Comoros are also the subject of ongoing preliminary examinations.
Over the past few weeks the African-ICC problem has deepened with South Africa, the Gambia and Burundi taking steps towards withdrawal from the ICC. This poses a serious problem for the ICC; other African countries may follow. The States Parties to the Rome Statute will have to work hard to resolve this issue, which impinges on the credibility and perhaps, ultimately, viability of the Court.
Without a doubt, we have seen significant progress in international criminal law since Nuremberg. At the foundation of this progress is the confirmation of the principle of individual criminal responsibility, while emphasising the rights of the accused and the duty of fairness. I have also discussed several imperfections in international criminal law and the challenges that are raised in trying to implement the many developments in substantive law. This has resulted in an incongruence between the law and practice of accountability. I have pointed to the importance of procedure and evidence in this regard, and particularly in trying to find the balance between fairness and expeditiousness in trials that are heavily reliant on witness evidence. However, as I reflect on the last 70 or so years, I am confident that international criminal law, on the whole, is gradually moving in the right direction. That movement will reach its apotheosis when trials for serious breaches of international humanitarian law giving rise to individual criminal responsibility become as much the norm as trials for ordinary crimes.
 Robinson, supra note 3.
 ICTY, Facts & Figures, <http://www.icty.org/sites/icty.org/files/images/content/Infographic_facts_figures_en.pdf> Accessed 11 October 2016.
 Rules of Procedure and Evidence of the ICTY, Article 73bis(D).
 Rules of Procedure of the International Military Tribunal (Nuremberg), adopted 29 October 1945.
 Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC Trial Chamber Decision on the Submission and Admission of Evidence, 29 January 2016.
 Prosecutor v. Radislav Krstić, ICTY Trial Chamber Judgment, 2 August 2001, p. 203, para. 580.
 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 123, para. 190.
 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 57, para. 136.
 Prosecutor v. Vidoje Blagojević and Dragan Jokić, ICTY Trial Chamber Judgment, 17 January 2005, pp. 245-246, para. 666; Prosecutor v. Momčilo Krajišnik, ICTY Trial Chamber Judgment, 27 September 2006, p. 302, para. 854 and fn. 1701. [As discussed in Novic, pp. 67-68.]
 Elisa Novic, “Physical-biological or socio-cultural ‘destruction’ in genocide? Unravelling the legal underpinnings of conflicting interpretations”, Journal of Genocide Research 17:1 (2015), p. 63. Novic is a proponent of a ‘broader’ understanding of the mens rea of genocide. (p. 77).
 UN Security Council Resolution, S/RES/1422, 12 July 2002, para. 2.
 UN Security Council Resolution, S/RES/1487, 12 June 2003. As far as I am aware, the Resolution was not renewed. However, it is worthy of note, that UNSC Resolution 1497, which established a peacekeeping mission in Liberia, required that, for any acts or omissions linked to the peacekeeping mission, current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, would be subject to the exclusive jurisdiction of the contributing State.
 To date, the ICC has only tried African suspects. Of the 22 preliminary examinations that have been launched by the ICC, 12 have been of situations in Africa. The ICC has proceeded with 10 investigations, 9 of which have involved African States. Five of these investigations in Africa were referred to the ICC by the State concerned, 2 were Security Council referrals and 2 were initiated proprio motu. See ICC, Situations Under Investigation <https://www.icc-cpi.int/Pages/Situations.aspx> and Trial Stage <https://www.icc-cpi.int/Pages/trial.aspx>, Accessed 11 October 2016.
 ICC, Preliminary Examination – Afghanistan <https://www.icc-cpi.int/afghanistan>, Accessed 11 October 2016.
 ICC, Preliminary Examinations <https://www.icc-cpi.int/pages/preliminary-examinations.aspx>, Accessed 11 October 2016.
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