On the Record for a Criminal Court Issue 13: July 7, 1998 Contents: Professor Kenneth Gallant on The Rights of the Defendant Larry Minear Oped from the International Herald Tribune Beth Van Schaak on Command Responsibility Professor Francis Boyle on Superior Orders Gerald Gray on Victims and Reparations From the AP Editorial Desk Defendants Rights: Seven Issues to Watch by Kenneth S. Gallant Whenever a criminal court or criminal sanctions are brought into being, the possibility exists for abuse of the rights of defendants and other individuals. Therefore, Delegates and human rights activists at the U.N. Plenipotentiary Conference to create an International Criminal Court need to ensure that the Statute of the Court protects against abuse of individual human rights. The good news is that the Draft Statute contains many basic substantive and procedural protections. Many procedural rights from the International Covenant on Civil and Political Rights are preserved in the Draft Statute almost word for word. This Note is only about those provisions on individual human rights that need strengthening. NGO human rights activists must ensure they are included in the final Statute. 1. Human Rights Adopted into Applicable Law of Crimes The most important advance in the Draft Statute may be the following: "The application and interpretation of law pursuant to this article [on what law will apply in the ICC] must be consistent with internationally recognized human rights, which include the prohibition on any adverse distinction founded on gender, age, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status, or on any other similar criteria." (Draft Statute, art. 20(3)) Human rights advocates should work to ensure this provision is kept in the final Statute. It recognizes that the constitutions of international organizations should protect individuals against violations of substantive human rights by the organizations. This provision prohibits definition of crimes and defenses that violate international human rights. It might be better if it specifically mentioned protection for freedom of expression, religion, conscience, assembly and association, but these are certainly the core international human rights to be protected by this provision. The equal protection rule is as broad as could reasonably be asked by a human rights advocate, except that it does not prevent discrimination in the definition of crimes on the basis of sexual orientation. 2. Defense Counsel, Investigation and Funding The right to effective defence investigative capabilities, including funding for those defendants who cannot afford investigative expenses, needs to be stated, most appropriately in Draft Statute, art. 67. The right to prepare and present a defence needs to be strengthened in this way, or it could come to mean just the right to have a lawyer show up in court. Defence counsel and investigators also need freedom to operate in the states in which evidence is located, similar to the diplomatic immunity or such "privileges, immunities, and facilities necessary for the performance of their functions" currently contained in the Draft Statute for Registry and Prosecution officials. (Draft Statute, art. 49(1&2)) The bracketed (i.e., not yet fully agreed to) provision that would give a defendant the right to request the Court "to seek the cooperation of a State Party . to collect evidence for him/her" (Draft Statute, art. 67(1)(I)) should be included. However, this will only partly remedy the situation. Defendants cannot rely wholly on potentially hostile governments for the collection of evidence for their cases. Another idea, not in the current Draft Statute, that would considerably strengthen the fairness of the ICC would be the creation of a Defence Bureau, by analogy to the Prosecutor's Office. There is currently no defence office in the Statute. 3. Proof of Guilt Beyond a Reasonable Doubt The Draft Statute requires proof beyond a reasonable doubt for conviction. (Draft Statute, art. 66) However, a note to the Draft Statute indicates, "[r]eservations have been expressed" about the phrase "beyond a reasonable doubt." (Note 185) The Statute should remain as drafted. 4. Right to Privacy The guarantee against invasions of privacy – i.e., unreasonable search and seizure – s still in brackets. Draft Statute, art. 67(3). Human rights groups need to work to ensure that protection for privacy is placed in the final text. Moreover the guarantee needs to be strengthened. As written, the Draft Statute would allow warrants to be issued upon "adequate cause" (without definition of "adequate"). It should be amended to include a somewhat more specific – and more difficult to meet – standard of probable (or even reasonable) cause. Additionally, the traditional guarantees of security of houses, papers and effects might be supplemented with security of the person and privacy of communications, to prevent such things as wiretapping and the involuntary taking of DNA samples without justification. Second, human rights advocates should seek to eliminate or revise a provision allowing searches and seizures "on such grounds and in accordance with such procedures as are established by the Rules of the Court." (Draft Statute, art. 67(3)) This essentially allows legitimation, by Rule, of warrantless and perhaps standardless searches. It should be replaced by a provision prohibiting warrantless searches except upon probable (or reasonable) cause, and in the presence of circumstances making the obtaining of a warrant before the search impracticable (or impossible), consistent with the need to secure evidence. 5. Disclosure of Witnesses While some prosecution witnesses need to be protected from retaliation, it is unfair to allow witnesses against a defendant to remain fully anonymous at trial, because it makes cross-examination nearly impossible. Protection against this is needed and should be included in the statute, most appropriately in Draft Statute art. 67. 6. Exclusionary Rule The Draft Statute provides that evidence obtained by means of a violation of the Statute or internationally-recognized human rights, and possibly other relevant rules of international law, shall not be admissible if the violation "casts substantial doubt on its reliability" or the admission of the evidence "is antithetical to and would seriously damage the integrity of the proceedings." (Draft Statute, art. 69(6)) This author would prefer to exclude all evidence obtained in violation of internationally-recognized human rights norms. Whether or not this last change is made, human rights advocates should support inclusion of an exclusionary rule in the final Statute. 7. Compensation Another progressive provision, still in brackets, would have the ICC compensate to persons wrongfully arrested, detained, or convicted. (Draft Statute, art. 84) Human rights advocates should support this proposal because it recognizes that an international organization should be accountable to those harmed by its own violation of international human rights norms. One additional class of wrong should be added to the final Statute: damage to a person (not necessarily a suspect or defendant) resulting from a wrongful search or seizure. This note presents the barest outline of seven important issues to watch on individual human rights in the ICC Statute. The author would be happy to provide interested Delegates and NGO human rights activists with more information on any of them. Kenneth S. Gallant is Professor of Law at the University of Idaho. He has written about securing the presence of defendants in the International Criminal Tribunal for the Former Yugoslavia in The Criminal Law Forum. Kenneth S. Gallant, Professor of Law, University of Idaho, Moscow, ID 83844- 2322 USA; 208-885-6541 (phone), 208-885-4628 (fax) (c) 1998 (All references in this Note are to the Draft Statute for the International Criminal Court, A/CONF.183/2/Add.1 (14 April 1998), pp. 2-167.) Inhumanity and Impunity by Larry Minear These are hard times for humanitarians. Saving lives and easing suffering is proving more complicated now that the Cold War is past. Displaced by today's largely internal armed conflicts, those in need often remain within their own countries where they are harder to reach and more vulnerable to the abusive policies of governments and insurgents. During the Cold War, they tended to flee to more accessible and more secure refugee camps outside their own borders. The behavior of today's belligerents constitutes a threat not only to humanitarian work but also to the lives of aid workers. The head of the United Nations refugee agency's office in North Ossetia, abducted in late January, is one of sixteen expatriates currently hostage in the Caucasus region. Aid workers have been killed in Chechnya, Burundi, the Sudan, and other troublespots. To make matters worse, the levels of outside aid to conflict victims are waning, both from the United States and other major donors. A particularly gruesome example of post-Cold War inhumanity comes from Sierra Leone, where unspeakable atrocities are being committed by anti-government insurgents against small farmers and traders, students, and particularly women. The perpetrators of the mayhem have a very specific political objective: to mutilate rather than to kill. They even place messages to the government in their victims' pockets or on what is left of their appendages. Some of the mutilated are telling their stories in Sierra Leone; others have escaped to nearby West African countries. The chances of bringing the perpetrators to justice in their own country are negligible, where the judicial system is itself a casualty of the war. International appeals for restraint have gone unheeded. What are the prospects that such inhumane practices can be reined in and essential humanitarian activities and personnel protected? There are several positive signs. One is the dialogue taking place among aid practitioners themselves. Formerly careful to distance themselves from the more "political" area of human rights, many aid agencies are now are seized with a new sense of such rights.