INTERNATIONAL CRIMINAL JUSTICE a dialogue between two cultures Patrícia Galvão Teles Mateus Kowalski (eds.) Luís Moita Almiro Rodrigues Sofia Santos Miguel Santos Neves Maria Francisca Saraiva Miguel de Serpa Soares Title International Criminal Justice: a dialogue between two cultures Coordination Mateus Kowalski and Patrícia Galvão Teles Editor Universidade Autónoma de Lisboa and Observare Editorial Coordination Madalena Romão Mira Design Rita Romeiras Print Tipografia Lousanense ISBN 978-989-8191-73-1 e-ISBN 978-989-8191-79-3 Legal Deposit 424875/17 Note: This book is available in OBSERVARE site www.observare.autonoma.pt on the publications section. The translation of the articles was funded by national funds through FCT – Fundação para a Ciência e a Tecnologia – as part of OBSERVARE project with the reference UID/CPO/04155/2013, with the aim of publishing Janus.net. Translated by Thomas Rickard. © OBSERVARE and Universidade Autónoma de Lisboa KOWALSKI, MATEUS; TELES, PATRÍCIA GALVÃO (EDS.) (2017). INTERNATIONAL CRIMINAL JUSTICE: A DIALOGUE BETWEEN TWO CULTURES. Lisboa: Universidade Autónoma de Lisboa; OBSERVARE. I.Title. II. Mateus Kowalski. III. Patrícia Galvão Teles. IV. Miguel de Serpa Soares. V. Maria Francisca Saraiva. VI. Sofia Santos. VII. Almiro Rodrigues. VIII. Luís Moita. IX. Miguel Santos Neves. X. Patrícia Galvão Teles ISBN 978-989-8191-73-1 CDU 341.4 Index INTRODUCTION – INTERNATIONAL CRIMINAL JUSTICE: A DIALOGUE BETWEEN TWO CULTURES — Mateus Kowalski and Patrícia Galvão Teles 13 INTERNATIONAL CRIMINAL JUSTICE AND THE EROSION OF SOVEREIGNTY — Miguel de Serpa Soares 27 Introduction 29 State sovereignty: a flexible concept 30 The End of the punishing monopoly of States: crime and punishment in International Law 34 The Rome Statute: a permanent and independent jurisdiction 41 From Illegal War to the Crime of Aggression 47 Conclusions 56 References 59 MAJOR VIOLENCE (CRIMES) AGAINST THE INTERNATIONAL COMMUNITY — Maria Francisca Saraiva 65 Introduction 67 The social contract and political violence 69 Collective security and individual criminal responsibility for international crimes 72 Violence, cruelty and power 76 The crime of genocide 77 Crimes against humanity 79 Crimes of war 82 Crime of aggression 86 Conclusion 91 References 92 7 THE STORMY WATERS OF THE INTERNATIONAL CRIMINAL COURT: UNIVERSAL FIGHT AGAINST IMPUNITY OR LIBERAL UNIVERSALIZATION? — Mateus Kowalski 97 Introduction 99 Which Universalism? 101 Rational Universalism and Universal Ethics 101 The International ‘Moral Community’ 103 The ICC and the Universal Public Order 106 A Body of Universal Sovereignty 106 A Universalizing Liberal Discourse 109 Elements of Pluralism 112 Conclusion 114 References 116 THE INTERNATIONAL CRIMINAL COURT AND THE EVOLUTION OF THE IDEA OF COMBATING IMPUNITY: AN ASSESSMENT 15 YEARS AFTER THE ROME CONFERENCE — Patrícia Galvão Teles 121 Introduction 123 Current challenges facing the ICC 125 a) Universality, Complementarity and Cooperation Universality 125 Complementarity 126 Cooperation 127 b) Peace vs. Justice or Peace and Justice 128 The ICC, the case of Kenya, the African Union (AU) and the future of the idea of combating impunity 129 Conclusions 136 References 138 8 THE INTERNATIONAL CRIMINAL COURT AND THE CONSTRUCTION OF INTERNATIONAL PUBLIC ORDER — Sofia Santos 141 Introduction 143 The Rome Statute and the recent praxis of the ICC: key considerations 145 Limitations of the ICC and implications for the applicability of International Criminal Law 148 Legal-political tensions and the problem of decision implementation 149 Weaknesses in the interpretation of the Rome Statute “Crime of Aggression” and “Act of Aggression” 152 “Crimes against Humanity” 155 Multifaceting the ICC 158 Categorization of terrorism as an “international crime” 159 The ICC and the Responsibility to Protect 165 Conclusions 170 References 173 ICC Documents 175 United Nations Documents 176 THE PROSECUTOR IN INTERNATIONAL CRIMINAL JUSTICE — Almiro Rodrigues 179 Introduction 182 The national constitutional framework 182 The international institutional framework 186 The Prosecutor of the International Criminal Tribunal for the former Yugoslavia 186 The Prosecutor of the International Criminal Court 189 The Prosecutor and international criminal procedure 194 Some questions 196 Conclusion 200 9 OPINION TRIBUNALS AND THE PERMANENT PEOPLE’S TRIBUNAL — Luís Moita 203 Opinion movements and court rulings 206 International jurisdictions and opinion tribunals 209 The Permanent People’s Tribunal (1979-2014) 217 The sentences of the PPT 219 What is the legitimacy of the PPT? 222 The PPT and international law 226 References 230 HUMAN RIGHTS, INTERNATIONAL CRIMINAL LAW AND THE CHALLENGES OF A VICTIM-CENTRED RESTORATIVE JUSTICE – THE ICC CONTRIBUTION — Miguel Santos Neves 233 Introduction 235 The ICC and international criminal law contribution to Human Rights protection 236 International Criminal Court and a Human rights approach: emerging new paradigm in terms of victim protection 239 From international retributive justice to restorative justice 239 Evolution of the international regime of victims of violations of human rights 241 The ICC innovations in the status and rights of victims: rules and practice 244 Victims’ Right to participation in the proceedings 244 Reparation of Victims 246 The Trust Fund for Victims 251 ICC limitations in human rights promotion and protection 254 Conclusions 256 References 259 10 THE ICC AT THE CENTRE OF AN INTERNATIONAL CRIMINAL JUSTICE SYSTEM: CURRENT CHALLENGES — Patrícia Galvão Teles 263 Introduction 265 Current challenges 266 Universality 266 Complementarity 270 Cooperation 272 The Crime of Aggression 274 Some Conclusions: Justice vs. Politics 276 References 278 11 Introduction1 INTERNATIONAL CRIMINAL JUSTICE – A FRAMEWORK The implementation of the idea that individuals, wherever they are and regardless of their official status, may be accountable for crimes against humanity breaks away from the Westphalian paradigm that each State is responsible for prosecuting (or not) its citizens. After the Cold War, several international criminal jurisdictions were created, namely the ad hoc courts for the former Yugoslavia and for Rwanda and a permanent criminal jurisdiction, the International Criminal Court (ICC). Power no longer serves as a means for impunity in the same way. Those leaders involved in conflicts have learned to fear international criminal justice as a “sword of Damocles”. On the other hand, the creation of international criminal jurisdictions has become a means to consolidate peace in post-conflict situations so as to restore justice. The foundation of the ICC in 2002 – and the preference for a permanent a juris- diction rather than ad hoc courts – represents the pinnacle of international criminal justice. The Court is even referred to as a paradigmatic institution in terms of the universalistic perspective of International Law, which aims at a reinforced international public order. As Bogdandy and Dellavalle state, “in the global context, the development of a truly international public order and of true International Law is now largely dependent on the development of International Criminal Law” (2008: 2). The creation of the ICC should be viewed not merely as an innovation but, above all, as a civilizational con- quest for the defense of human dignity and the promotion of peace. 1 The text represents the personal opinion of the authors and cannot be understood in any way as the official position of any other person or institution, including the United Nations or the Government of Portugal. 13 International Criminal Justice: A Dialogue between Two Cultures However, the criticisms addressed to the universalistic narrative, namely in what con- cerns a global imposition of institutions and liberal legal standards, also impact the Court. Hard criticism has been made against the ICC regarding its struc- tural fundaments which reflect, to a certain extent, a concern regarding the imposition of “Western” liberal ethical and legal solutions. On a more func- tional level, criticism has also been made against the power attributed to the United Nations Security Council in relation to the Court, which suggests political intrusion in a criminal body, and that up to now the great majority of situations being investigated and prosecuted by the Court related to Africa, which leads to suspicion on its selection criteria. This criticism raises questions as to the bases of the ICC. The ICC is no longer in a state of grace and the risk of marginalization is increasing (Kowalski, 2011). In 2016, Burundi, South Africa and Gambia have notified their decision to withdraw from the Statute of the International Criminal Court. At the same time criminal justice is becoming universal, alternative forms of jus- tice are being promoted in situations in which serious international crimes have been committed. In Rwanda, for instance, justice was a core element for reconciliation. Given the limited role of the International Criminal Tribunal for Rwanda and the limitations of the Rwandan legal system, tra- ditional collective structures were used to administer justice after the geno- cide (the Gacaca courts) with emphasis being given to the restorative dimension of justice. The case of Rwanda is, therefore, a good example of how alternative forms of justice may be mobilized with a restorative pur- pose (Kowalski, 2009). This has fueled the debate on international criminal justice and its complementary jurisdictional role. Reflecting on the ideals that