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International Criminal Law

Mark Ellis – 2009 ILS Vienna Retreat Speaker Summary

In 1999 I stood among a sea of 20,000 desperate people on a dirt airfield outside Skopje, Macedonia, listening to one harrowing story after another. I had come to the Stenkovec refugee camp to record those stories and to help set up a system for documenting atrocities committed in Kosovo.

The Summer heat was unbearable; swirling clay dirt collected on your clothes and dried your mouth; no showers; makeshift tents scattered around; limited bathroom facilities; there were no men or boys about – only girls and women were forced across the Macedonian border by Serbian military – the men were kept behind; many of them never to be seen again.

I remember vividly watching the bus loads of new arrivals enter the Stenkovec camp. With each busload, the entire camp would move in unison and surround the bus looking to see if the lost family member would disembark. And I remember in one bus, seeing a small girl’s face pressed against the window. Her hollow eyes seemed to stare at no one. History was being repeated.

As I collected the accounts of rape, torture and executions at the hands of Serbian troops, I was struck by the refugees’ common yearning for justice. They wanted those responsible for their suffering to be held accountable. Their anger was not only directed at the people they had watched committing such savagery, but at the political leaders who had orchestrated the misery and continue to act with impunity.

In his opening statement at the Nuremburg Trials in 1945, U.S. chief prosecutor, Robert H, Jackson said, “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated.” Jackson was expressing the hope that law would somehow redeem the next generation and that similar atrocities would never again be allowed. Unfortunately, we as the international community are failing at this challenge.

Since Mr. Jackson’s words in 1945 there have been over 295 armed conflicts where an estimated 80-90 million people have lost their lives. These numbers are so staggering that they make us impervious to their meaning. However, if these numbers of conflicts and victims are extrapolated into the future, and there’s no reason to doubt their veracity, then the focus on accountability and international justice becomes paramount.

But in many ways, international justice will become less international and more domestic. I think states will become the “accountability centres” for bringing to justice those who have committed gross violations of international criminal law.

I think this will occur for several reasons. First, the International Criminal Court (ICC), that we hear so much about, is actually only designed as a secondary institution intended to complement national prosecutions. The ICC must defer its jurisdiction to national courts in all cases except in situations where national prosecutors have been genuinely “unable of unwilling” to investigate and/or prosecute the accused.

Consequently, the ICC’s impact on domestic law and national capacity building will be significant and far reaching. Most dramatic will be the plethora of domestic war crimes courts. The international community is already witnessing this trend. Currently, there are 24 countries that have established specialised war crimes tribunals or court chambers to hold individuals accountable for international crimes.

Second, increased prosecutions will occur through the concept of universal jurisdiction. This principle of law is generally viewed as a way states can exercise jurisdiction over any person anywhere in the world, who commits international crimes such as genocide, crimes against humanity, war crimes and torture. In its most literal interpretation, universal jurisdiction would embrace trials in absentia over offences committed abroad by the accused, the exercise of which is not dependent on the accused being on the territory of the forum of that state.

This week a senior investigative Spanish judge ordered prosecutors to investigate whether key aides of former President George Bush should be charged with crimes over Guantanamo Bay. (John You, Douglas Feith, William Hayes, Jay Bybeen and David Addington).

Spain can claim jurisdiction because its own “universal jurisdiction law” allows such claims when Spanish citizens or residents were victims. The complaint stands under Spanish law because several Spaniards were alleged to have been tortured in Guantanamo.

The investigation is based on the Geneva Conventions and the 1984 Convention Against Torture.

However there is also a movement for a more restricted, or conditional universal jurisdiction which requires the accused to be on the territory of the forum state.

For example, in the U.S. the son of Charles Taylor, (former president of Liberia) became the first person to be sentenced under the United States “Extraterritorial Torture Statute.”

The U.S. has endorsed conditional universal jurisdiction for the Crimes of Genocide. Until 2007, genocide was only punishable if committed within the United States or by a U.S. national. However, in 2007 the Genocide Accountability Act became law to allow the prosecution of genocide where the alleged offender is “an alien lawfully admitted for permanent residence in the United States,” who is “a stateless person whose habitual residence is the United States,” or who, after the conduct required for the offense occurs, is “brought into or found in the United States, even if the conduct occurred outside the United States.”

Third, customary international law establishes that national jurisdictions shall assume an equally central role, as to international courts, in the suppression of genocide, crimes against humanity and war crimes.

However, vigorous prosecution of international crimes with a jurisdictional shift from international to domestic courts will have significant and far-reaching consequences. Building the capacity of national judicial systems will become increasingly important in the years ahead. The challenges will be daunting.

It is likely that domestic war crimes courts will languish in environments plagued by ongoing ethnic struggle, and in which there is a lack of political will to prosecute alleged war criminals. It is also unlikely that new domestic courts will have direct participation or assistance from the international community. That is, they will not benefit from international experts who might “co-participate” as judges, prosecutors or defence attorneys, as is common in hybrid war crimes courts. Therefore, it is paramount that the international community provide some discernible assistance to these new courts to ensure that domestic proceedings are consistent with international norms.

The Saddam Hussein trial was the “perfect storm” regarding domestic war crime trials in a post conflict (or conflict) environment. (see handouts). It is a misnomer to refer to the Iraqi Court as a domestic court. The United States played a crucial role in drafting the Court’s statute, collecting evidence, providing financial support and security. As an occupying force, the United States should not have played this role. However, no other international assistance was forthcoming.

In the future, the international community can most effectively assist national prosecutions by creating an International Technical Assistance Office (ITAO). This office would be administered by a consortium of legal groups and would provide technical, unbiased assistance to domestic war crimes courts. The office would focus on establishing standards and best practices for domestic prosecution of international crimes.

The ITAO could provide an international perspective on legal issues facing the new domestic war crimes courts. Through the ITAO, a newly established domestic war crimes court could create a panel of international experts (e.g., perhaps six) who could provide support to the court as needed. The panel would be comprised of jurists with wide-ranging, high level experience in international criminal law. The panel would be geographically diverse and include different areas of legal expertise, for example, it might include judges, professors and prosecutors.

It is crucial that advice from the panel is not seen as interfering in what is essentially a domestic legal process. The panel should establish a set of objectives and goals.

The legal advice (or brief) could take the form of an amicus curiae; the domestic court would receive the brief as a “friend of the court” and circulate it to all parties at the proceedings. Alternatively, the domestic court could treat the advice as “confidential” and allow the judges to promulgate or ignore the advice given.

The ITAO could also provide trial observers to review, assess and evaluate each trial undertaken by domestic war crimes courts. Endemic to most post-conflict countries are judicial systems that can neither guarantee fair and politically unbiased judicial processes, nor try cases that are impartial or without ethnic bias. To gain international recognition of domestic war crimes trials, national governments will have to ensure that the trials meet international standards.

In addition, the ITAO could provide continuing legal education to judges, prosecutors and defence attorneys involved with domestic war crimes trials. The need for continuing legal education in this area is all too apparent. Although most jurists in post-conflict countries will have formal university-level training, they will not have practiced before war crimes courts, nor have specific knowledge of international criminal law. Training should focus on areas of substantive and procedural law relevant to prosecuting alleged gross violations of international criminal law.

International criminal law is still in its infancy and there is much room for progress and improvement. During the next decade the international legal community will be faced with new challenges to ensure a greater focus on accountability. Much of this focus will be on the national level. In the future it will be domestic courts that play the crucial role in bringing perpetrators to justice. However, it will be the international community that must provide the necessary support, both financially and structurally, to ensure that domestic courts succeed in this endeavour.



1 Croatia, Serbia, Macedonia, Mexico, Poland, Estonia, Lithuania, Latvia, Chile, Lebanon, Argentina, Peru, Suriname, Congo, Rwanda, Iraq, Kenya, Liberia, Uganda, Uruguay, Burundi, Ecuador, Guatemala, Somalia.


2 The investigating magistrate, Baltasar Garzón, issued the precedent setting arrest warrant for former Chilean dictator, Augusto Pinochet in 1998.


*Mark Ellis is the Executive Director of the International Bar Association.