International Penal Sanctions for Violations of Human Rights: Incipient Developments

INTERNATIONAL PENAL SANCTIONS FOR VIOLATIONS OF HUMAN RIGHTS: INCIPIENT DEVELOPMENTS

By J. J. Lador-Lederer*

In a sense, international penal law is a problem child. As it is meant to serve humanitarian purposes while accommodating political requirements, it is not difficult to realize that the linking of the two aspects may cause certain frictions. No legal order can subsist without a system of sanctions. Yet no sanction is effective if applied under conditions motivated by political oppor- tunism, or giving that impression. There is an obvious distinction between a violation of international obligations and the commission of international crimes. Hence the question, why, and when, certain violations of international obligations become crimes while others are not. A neat reply would certainly contribute to the clearing of the tangled sphere in which the transcendence from violation to crime is a matter only of a pragmatic, or even an opportunistic, political decision. Indeed, the full impact of the matter is seen where, out of political considera- tions, certain violations, despite their criminal nature, are not allowed to be dealt with as crimes. Viewed in this perspective, the complexity of the problem is far broader and calls for the establishment of a clear distinction between humanitarian law and (as this writer would term it) political co- existence law.' In other words: is international penal law a logical and systematic outcome of an international normative order, imposing international sanction against activities which are technically international, or is it an accidentale negotii regarding some other transaction a matter of political co-existence? In the first case, the penal provision is autonomous, in the second it is heteronomous in nature. As a first orientation, it may be said that international crimes are those in

* Dr. Jur.; Director, Treaty Section, Ministry for Foreign Affairs (Israel). The views expressed in this paper are the personal views of the author. 1 The present writer elaborated on this distinction in two papers: "The Role of Treaty Law in the Protection of Human Rights," 2 Israel Yearbook on Human Rights n (1972) and "Proposed Simplifications of Convention-making Procedures," 7 Israel L. Rev. 498 (1972). 89 90 PROBLEMS OF INTERNATIONAL CRIMINAL LAW

which the penological substance is international, both as regards its factual structure and its penalization. 2 International law postulates that certain activities of individuals must be regarded as criminal, irrespective of the fact that municipal law, too, may see itself competent to adjudicate the matter. But the converse may also be true. It may occur that, because of temporal incongruities, but in view of the device of didoublement fonctionnel, the municipal legislators hold a priority in time of postulation, as was the case with the criminalization of piracy and international social crimes (such as the slave trade). But there exist also situations where activities recognized as criminal in international law, such as terrorism, are considered feats of heroism by certain countries. This is a phenomenon which does not affect the international substance of the acts, but only extends the range of national responsibility. Because of its specific features, international law is autonomous in its concepts of prescripton, of dolus, of international conspiracy, of unity of operative measures, of continuous, multifarious and plurivalent crimes, of abetment and involvement as accessory after the fact. The essential point is that considerable divergencies between international and municipal law relate to the "nullum crimen sine lege" rule. Also, as international law requires a categorical recognition of its primacy, prescription in municipal law is not a reason for a similar limitation in international law. Nor is acting on governmental behest or within the scope of national legislation a circumstance eliminating a criminal's international responsibility. The dangers of drawing

2 Pragmatically, the following explanation of terminology is given: "criminalization" is used where the intention is to show that an offence was declared an (international) crime; "penalization" is used where the accent is on punishment. In practice, the distinction between the two is similar to that between lex minus quam perfecta and lex perfecta. Nevertheless, there is, beyond this, another distinction more which arises from the competence involved: in thesi, the competence for criminalization is in international hands, that for penalization is left to the States concerned. In recent Conventions, this distinction finds expression in provisions setting out which kind of legislation a Party to the Conven- tion takes upon itself to enact. The provisions are declaratory, without being self- executive, and affect the "nullum crimen sine lege" rule (in a sense set out below in notes 111-13). Practical consequences arise at the stage of extradition, still, in positive law, fully in the hands of municipal courts (without any international appeal) and possibly in conflict with recent trends in international law. 3 Like all penal law, this one too is concerned with who is capable of forming a dolosive intention (mens rea) and of conceiving of what is to be part of it. Without entering here upon a full analysis of it-the present writer refers to his paper on "Terrorism," 9 Israel L. Rev. 194 (1974)-the international complexity of the techniques of the crime is part of this dolus and of the international effect of the crime. Note also the crimes with remote effect (Distanzdaten), which are inchoate at the place where the first stage was performed (e.g. a letter bomb was put together and despatched), yet are not deemed to have been "committed" at the place where the letter bomb was received and exercised its lethal effect.