The Justification of Punishment in International Criminal Law Can National Theories of Justification Be Applied to the International Level?

THE JUSTIFICATION OF PUNISHMENT IN INTERNATIONAL CRIMINAL LAW CAN NATIONAL THEORIES OF JUSTIFICATION BE APPLIED TO THE INTERNATIONAL LEVEL?

Christoph J.M. Safferling*

I. Introductiont

Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) by the UN Security Council on 25 May 1993,' international criminal law has attracted much attention in the international community and has developed at a speed so far unprecedented in international law. Despite dogmatic difficulties with the justification of this new enterprise2 the Yugoslav Tribunal was followed by the International Criminal Tribunal for Rwanda (ICTR)3 and last year on 17 July 1998, the international community decided on a Statute for a permanent International Criminal Court (ICC) at the International Conference in Rome.4 On the eve of the new millennium the first international criminals are being prosecuted

* Dr. jur. (Munich), LL.M. (LSE), assistant professor, Law Faculty, University of Hannover. t The author would like to thank Professor Leonhard Leigh (Birmingham), Dr. Tatjana Hornle, M.A. and Giinther Treppner (both Munich) for reading and criticising the draft, as well as Professor Christopher Greenwood (London), Professor Dr. Claus Roxin and Dr. Harald Niedermair (both Munich) for their precious help with literature, and Sarah Green, M.Sc. (LSE); without her this article would probably be linguistically un- intelligible. 1 UN Security Council Resolution 827, acting on Chapter VII. 2 For a description of the difficulties see e.g. ICTYAppeals Chamber Prosecutor v Tadic Judgment on Jurisdiction, 2 Oct. 1995, Case No. TT 94-I-AR72, 35 ILM 32 (1996), §§ 9-47, or Alvarez, Nuremberg revisited: The Tadic case, 7 EJIL (1996), p. 245. 3 Established by the Security Council by Resolution 955, on 8 Nov. 1994. 4 Rome Statute, UN Doc.A/CONF.183/9, 17 July 1998, reprinted in 37 ILM (1998), 999.

Austrian Review of International � European Law 4: 126-163, 1999. �2000 Kluwer Law International. Printed in the Netherlands. and sentenced by those international bodies, like Drazen Erdemovic, who was finally sentenced to five years imprisonment on 5 March 19985 at the ICTY and Jean-Paul Akayesu convicted of genocide on 2 September 19986 or Jean Kambanda, who was sentenced to life imprisonment for genocide after pleading guilty on 4 September 1998' at the ICTR. Yet, the purpose and function of this brave enterprise are anything but obvious. In the course of time it almost seems as if some initially supporter states had, at least since the Dayton Peace Treaty for the former Yugoslavia of 21 November 1995, turned away from the idea of punishing alleged war criminals. Likewise the Rome Statute unfortunately found no support from some of the most powerful states, like the United States and China, which makes a successful outcome unlikely because it depends on wide ratification.8 Paradigmatic in this regard are also the quarrels about the indictment of Milosevic in the course of the Kosovo conflict by the ICTY9 The political camp is undecided; on the one hand there are voices in favour of an extended prosecution of criminals on an international bases and of more arrests on the territory of the former Yugoslavia, because otherwise the peace process is poisoned and on the other hand there are concerns that the peace process would be jeopardised by forcing detention of major war criminals.10 Nevertheless in July 1997 NATO troops took first action to arresting indicted war criminals." Still far

5 The ICTY Trial Chamber Prosecutor v Erdemovic Sentencing Judgment 5 March 1998 Case No.IT 96-22-T reduced the sentence df the previous judgment 29 November 1996 from ten to five years in appliance of the Appeals Chamber Judgment 7 October 1997. 6 ICTR Prosecutor v Akayesu, Judgment 2 Sept. 1998, Case No. ICTR-96-4-T, reprinted in 37 ILM ( 1998), 1399. 7 ICTR Prosecutor v Kambanda, Judgment 4 Sept. 1998, Case No. ICTR-97-23-S, reprinted in 37 ILM (1998), 1411. 8 In general the result of 120 votes in favour, seven against and 21 abstentions is an impressive sign towards a positive reception of the court. 9 Compare Time, 7 June 1999, p. 39 or J. Fisch in Siiddeutsche Zeitung 9 June 1999, p. 17. 10 Compare the quotations in Time, Feb. 3, 1997, p. 18. " For example the arrest of Slavko Dokmanovic indicted later amongst others for the mass-murder at Vukovar Hospital, see the amended indictment Case No. IT 95-13a and the Trial Chamber I Rule 61 decision from 3 April 1997 Case No. IT-95-13-R6 1, Time, 7 July 1997, p. 18 and the arrest of Milan Kovacevic by British special forces on 10 July 1997.