Articles The Right to Silence in The Hague International Criminal Courts By MARK BERGER* Introduction IN THE YEARS SINCE WORLD WAR II, international judicial institu- tions have been increasingly utilized to resolve a wide array of legal disputes between nations.1 At least in part, this suggests recognition that domestic legal systems may not always be suited to the task of handling legal problems that have significant international ramifica- tions. Moreover, while the process of creating international courts and tribunals may be difficult and problematic, the frequent reliance on such institutions demonstrates that nations often conclude that their value is well worth the cost. Perhaps the most logical environment for the use of international judicial institutions is in the resolution of disputes under international agreements. Specialized courts and tribunals focusing on specific trea- ties or compacts have the ability to develop expertise in the agree- ments they interpret, and are therefore likely to produce more consistent and acceptable decisions. Reflecting this approach, the Eu- ropean Union established the European Court of Justice to hear cases raising issues under European Union law,2 and in a similar fashion, * Oliver H. Dean Peer Professor of Law, University of Missouri–Kansas City School of Law. B.A. 1966, Columbia; J.D. 1969, Yale Law School. Support for the preparation of this Article was provided by the University of Missouri Research Board and the UMKC Law School Research Fund. 1. In particular, international judicial institutions have frequently been created to resolve disputes arising under international trade agreements. See, e.g., Marrakesh Agree- ment Establishing the World Trade Organization, Annex 2, Apr. 15, 1994, 1869 U.N.T.S. 401; North American Free Trade Agreement, U.S.-Can.-Mex., ch. 19, pt. 7, Dec. 17, 1992, 32 I.L.M. 289. 2. Consolidated Version of the Treaty on European Union art. 19, Feb. 7, 1992, 2010 O.J. (C 83) 13, 27. 1 2 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 47 under the auspices of the United Nations, the International Tribunal for the Law of the Sea was established to resolve disagreements arising under the United Nations Convention on the Law of the Sea.3 However, international judicial institutions that are not part of any nation’s domestic legal system are increasingly being used to per- form tasks beyond interpreting specialized treaties. In many circum- stances, international tribunals have been established to resolve legal disputes arising under general international law principles. This is il- lustrated by the International Court of Justice, which was established under the United Nations Charter to hear international legal disputes submitted by national governments,4 and to render advisory opinions on questions referred by organs of the United Nations, as well as spe- cialized agencies authorized to request advisory opinions.5 In a com- parable fashion, the International Court of Arbitration of the International Chamber of Commerce acts as an umbrella organiza- tion6 to promote and administer arbitration services for the resolution of international business and commercial disputes.7 Separately, international judicial institutions are also being used to interpret and protect human rights standards against infringement by individuals and national governments. The European Court of Human Rights (“ECHR”), which has responsibility for interpreting and enforcing the European Convention on Human Rights (“Euro- pean Convention”),8 is an important and influential illustration, but other declarations of international human rights standards and mech- anisms for their enforcement have also been created.9 International 3. United Nations Convention on the Law of the Sea art. 20–23, Dec. 10, 1982, 1833 U.N.T.S. 3, Annex VI. 4. Statute of the International Court of Justice arts. 34–38, Jun. 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993. 5. Id. at arts. 65–68. 6. As noted in the International Chamber of Commerce Arbitration Rules, the Inter- national Court of Arbitration “does not itself resolve disputes [but rather] administers the resolution of disputes by arbitral tribunals.” International Chamber of Commerce, Arbitra- tion and ADR Rules art. 1, § 2 (2011). 7. The website of the ICC International Court of Arbitration is located at http:// www.iccwbo.org/about-icc/organisation/dispute-resolution-services/icc-international- court-of-arbitration/ (last visited Aug. 25, 2012). The International Chamber of Commerce Arbitration Rules of the International Court of Arbitration can be found at http://www.icc wbo.org/Products-and-Services/Arbitration-and-ADR/Arbitration/Rules-of-arbitration/ Download-ICC-Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several-languages/ (last vis- ited Aug. 25, 2012). 8. Convention for the Protection of Human Rights and Fundamental Freedoms art. 32, Mar. 20, 1952, 213 U.N.T.S. 221 [hereinafter European Convention]. 9. The United Nations’ International Covenant on Civil and Political Rights is illus- trative. See United Nations’ International Covenant on Civil and Political Rights, Dec. 19, Summer 2012] RIGHT TO SILENCE IN THE HAGUE 3 human rights are also central concerns of the specialized War Crimes Tribunals established by the United Nations to bring to justice those responsible for atrocities in various war-torn regions, including the In- ternational Criminal Tribunals for the Former Yugoslavia (“ICTY”) and Rwanda (“ICTR”).10 Looking to the future, and following many years of effort, members of the international community voted to es- tablish the International Criminal Court (“ICC”)—an international ju- dicial institution for the prosecution of crimes offending international human rights norms.11 1966, 999 U.N.T.S. 171 [hereinafter United Nations’ International Covenant on Civil and Political Rights]. Compliance with the terms of the Covenant is monitored by the United Nations Human Rights Committee. Id. at art. 28. In the Western Hemisphere, the Organi- zation of American States has adopted the American Convention on Human Rights. See American Convention on Human Rights “Pact of San Jose, Costa Rica,” Nov. 22, 1969, 1144 U.N.T.S. 123, O.A.S.T.S. No. 36 [hereinafter Pact of San Jose]. Cases alleging violations of the Convention are heard by the Inter-American Court of Human Rights. Id. at art. 33. See also The African Charter on Human and Peoples’ Rights, Jun. 27, 1981, 1520 U.N.T.S. 217. The treaty was adopted by the Organization of African Unity and is subject to the jurisdic- tion of the African Commission on Human and Peoples’ Rights. Id. at art. 30. 10. Resolution 827, which was passed by the United Nations Security Council on May 25, 1993, established the International Criminal Tribunal for the Former Yugoslavia. Stat- ute of the International Criminal Tribunal for the Former Yugoslavia, May 25, 1993, 32 I.L.M. 1192 [hereinafter ICTY Statute], adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), 32 I.L.M. 1203. In 1994, the United Nations Security Council passed Reso- lution 955, which created the International Criminal Tribunal for Rwanda. Statute of the International Criminal Tribunal for Rwanda, Nov. 8, 1994, 33 I.L.M. 1598 [hereinafter ICTR Statute]. Special courts have also been established with United Nations involvement to try human rights offenses committed in Lebanon, Cambodia and Sierra Leone. The Special Tribunal for Lebanon was established under United Nations auspices to investigate the events that lead to the death of former Lebanese Prime Minister Rafiq Hariri and twenty-two others. See Statute of the Special Tribunal for Lebanon, Mar. 29, 2006, 2461 U.N.T.S. 293 [hereinafter Lebanon Statute], adopted by S.C. Res. 1757, U.N. Doc S/RES/ 1757 (Mar. 29, 2006). A special tribunal, known as the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Demo- cratic Kampuchea, was also established to deal with offenses committed during the Khmer Rouge era in Cambodia. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Demo- cratic Kampuchea, U.N. Doc. NS/RKM/1004/006 (Oct. 27, 2004). In addition, a Special Court for Sierra Leone was established by United Nations Security Council Resolution 1315, August 14, 2000, to try serious human rights offenses committed in that country. Statute of the Special Court for Sierra Leone, Aug. 14, 2000, 2178 U.N.T.S. 138 [hereinaf- ter SCSL Statute], adopted by S.C. Res. 1315, U.N. Doc. S/RES/1315 (Aug. 14, 2000). 11. See Rome Statute of the International Criminal Court, Annex II, Jul. 17, 1998, 2187 U.N.T.S. 3 [hereinafter ICC Statute]. The ICC Statute was adopted on July 17, 1998 in Rome after an affirmative vote of 120 nations, and later came into force on July 1, 2002 following ratification by 60 countries. The United States is not a signatory of the ICC Stat- ute. The negotiating process leading to the adoption of the ICC Statute is described in Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 AM. J. INT’L L. 22, 22–24 (1999). 4 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 47 The War Crimes Tribunals and the ICC, however, are set apart from other international judicial entities. First, they do not address disputes between national governments or parties to commercial ven- tures. Beyond that, whereas the ECHR and other similar international courts act to review compliance by member nations with recognized human rights norms contained in the treaties that established the courts,12 the War Crimes Tribunals and the ICC are courts of the first instance that try individuals accused of applicable human rights of- fenses in much the same way that national governments enforce their own criminal laws.13 In serving as international courts that try what are essentially criminal offenses, the War Crimes Tribunals and the ICC, like na- tional criminal courts, have the responsibility to carefully balance the institutional goal of successfully prosecuting human rights offenders with the need to respect appropriate limits on the exercise of their enforcement authority.