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From sovereign impunity to international accountability From sovereign impunity to international accountability: The search for justice in a world of states Edited by Ramesh Thakur and Peter Malcontent United Nations a University Press TOKYO u NEW YORK u PARIS ( United Nations University, 2004 The views expressed in this publication are those of the authors and do not necessarily reflect the views of the United Nations University. United Nations University Press United Nations University, 53-70, Jingumae 5-chome, Shibuya-ku, Tokyo, 150-8925, Japan Tel: þ81-3-3499-2811 Fax: þ81-3-3406-7345 E-mail: [email protected] General enquiries: [email protected] http://www.unu.edu United Nations University Office at the United Nations, New York 2 United Nations Plaza, Room DC2-2062, New York, NY 10017, USA Tel: þ1-212-963-6387 Fax: þ1-212-371-9454 E-mail: [email protected] United Nations University Press is the publishing division of the United Nations University. Cover design by Joyce C. Weston Printed in the United States of America UNUP-1100 ISBN 92-808-1100-2 Library of Congress Cataloging-in-Publication Data From sovereign impunity to international accountability : the search for justice in a world of states / edited by Ramesh Thakur and Peter Malcontent. p. cm. Includes bibliographical references and index. ISBN 9280811002 (pbk.) 1. Crimes against humanity. 2. Criminal liability (International law) 3. Sovereignty, Violation of. 4. International criminal courts. I. Thakur, Ramesh Chandra, 1948– II. Malcontent, Peter. K5301.F76 2004 3450.0235–dc22 2004007427 Contents Foreword – The role of law and justice in governance: Regional andglobal......................................................... viii Richard J. Goldstone Preface – Justice and accountability: Local or international? . xii Martti Ahtisaari Acknowledgements. ................................................. xvii Introduction – Human rights and peace: Two sides of the same coin................................................................ 1 Peter Malcontent Part I: The historical and political background of international criminal accountability ........................................... 13 1 From impunity to accountability: Forces of transformation and thechanginginternationalhumanrightscontext ............... 15 Paul G. Lauren 2 From the Nuremberg Charter to the Rome Statute: A historical analysis of the limits of international criminal accountability . ................................................ 42 Michael D. Biddiss v vi CONTENTS 3 International criminal justice and the United States: Law, culture,power..................................................... 61 David P. Forsythe 4 Violations of human rights and humanitarian law and threats tointernationalpeaceandsecurity.............................. 80 George J. Andreopoulos Part II: The functioning of ad hoc tribunals and the ICC .......... 101 5 Theindividualwithininternationallaw ......................... 103 Michail Wladimiroff 6 Gender-relatedcrimes:A feministperspective................. 116 Christine Chinkin 7 International criminal courts and the admissibility of evidence 135 Bert Swart 8 Balancing the rights of the accusedwiththeimperativesof accountability . ................................................ 154 William A. Schabas 9 We the people: The position of NGOs in gathering evidence andgivingwitnessatinternationalcriminaltrials............... 169 Helen Durham 10 Democracy, global governance and the International Criminal Court.............................................................. 187 Madeline H. Morris Part III: Effectiveness and limitations ............................... 195 11 Reconciling fractured societies: An African perspective on the roleofjudicialprosecutions...................................... 197 Kingsley Chiedu Moghalu 12 Demystifying Osama bin Laden: Fair trials for international terrorists........................................................... 224 Geoffrey Robertson CONTENTS vii 13 The complexity of international criminal law: Looking beyond individual responsibility to the responsibility of organizations, corporationsandstates........................................... 233 Andrew Clapham 14 The International Criminal Court and the prohibition of the use of children in armed conflict . ............................... 253 Julia Maxted 15 The International Criminal Court: Obstacle or contribution to aneffectivesystemofhumanrightsprotection?................ 264 Cees Flinterman 16 Dealing with guilt beyond crime: The strained quality of universaljustice................................................... 272 Ramesh Thakur Listofcontributors................................................... 293 Index.................................................................. 295 Foreword The role of law and justice in governance: Regional and global Richard J. Goldstone The role of global governance and the sovereignty of nations have been thrown into sharp relief by the events of 11 September 2001. In particu- lar, the role of the rule of law and justice in regional and global gover- nance is being reassessed. In the first half of the twentieth century, national sovereignty reigned supreme. Indeed, it was on the premise of such sovereignty that the League of Nations was established. A number of major consequences arose from that. In the global community, obliga- tions were owed by one nation to another nation or other nations, de- pending upon the formal treaty obligations they had mutually contracted. The manner in which governments treated their own people was their ‘‘internal affair’’ and was not the business or legitimate concern of other governments or of international organizations. Individuals had no stand- ing in international law – such rights inhered solely in governments. And, apart from piracy, criminal justice was strictly a territorial matter: do- mestic authorities could prosecute only crimes that were committed within the geographical jurisdiction of their courts. Since the end of World War II, sovereignty has been in a state of flux. A crucial decision in this context was to grant Nazi leaders a criminal trial rather than have them summarily executed. A new species of criminal offence – crimes against humanity – gave birth to universal jurisdiction. It was a new idea that some crimes were so horrendous that they were crimes not only against the immediate victims or solely the people who lived in the country in which they were committed; they were truly crimes viii FOREWORD ix against all of humankind. As such, they could properly be prosecuted before the courts of any country. Jurisdiction in respect of such crimes depended not upon the place where they were committed but rather on the nature of the crime itself. One sees here an important breach of the strict theory of sovereignty. A country could prosecute the citizens of any country for crimes committed in any part of the world. Another important consequence of the Holocaust was that individual persons became endowed with international human rights. This change is reflected in the Charter of the United Nations and even more explicitly in the Universal Declaration of Human Rights. Those and other rights were spelled out in some detail in the international human rights conventions that were the hallmark of the United Nations during the 1960s. The first international recognition of universal jurisdiction is to be found in the 1949 Geneva Conventions. A new species of war crimes, called ‘‘grave breaches’’, was established. The courts of all countries ratifying the Conventions are endowed with jurisdiction to prosecute any person suspected of committing a grave breach of the Geneva Con- ventions. If a country in which such a suspect is found is unwilling or un- able to launch such a prosecution, a positive obligation is created under which such a person is to be handed over to another country that is so willing and able. A similar use of universal jurisdiction is to be found in the 1972 inter- national convention that declared apartheid to be a crime against hu- manity. Another example is the 1984 Torture Convention. Indeed, it was the universal jurisdiction conferred by the Torture Convention that led the House of Lords in England to confirm the arrest warrant of General Pinochet in 1998. The highest court in England recognized that the Spanish courts were entitled to exercise universal jurisdiction over Pinochet in respect of torture committed in Chile, allegedly on his orders. The Pinochet affair has had important consequences. Present and former oppressive dictators are not as