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Problems in Direct and Indirect Enforcement on the Prosecution of Core Crimes

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Multilayered Structures of International Criminal Law

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Abstract

As the prosecution of the International Criminal Court (ICC) is vested with discretion with respect to the investigation and indictment on serious international crimes, its practice has often been challenged even by member states to the ICC Statute that are directly concerned with the case in question. In particular, African states have expressly demonstrated their critical attitudes toward the recent judicial activities of the ICC. Although such criticism has partially been grounded on the arguable assumption regarding the concept of immunity of senior state officials, it may be recognized as more or less reflecting the unstable legal structure on which the ICC and international community itself is grounded. Meanwhile, with respect to indirect enforcement of international criminal law, the significance of the prosecution itself has occasionally been questioned in some aspects. Although a direction toward formulating a general obligation to prosecute crimes under international law in the strict sense, or core crimes, may be observed, such a direction apparently confronts other types of state practices and accompanying discussions on transitional justice, which have often been evaluated by the United Nations. International rulemaking in the aspect of indirect enforcement seems to have encountered the problem of sorting out these different views and practices.

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Notes

  1. 1.

    Stearns (2011).

  2. 2.

    See generally, Naldi and Magliveras (2017), pp. 120–131.

  3. 3.

    U.N. Doc., S/RES/1593 (2005).

  4. 4.

    Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 13 December 2011; Decision Pursuant to Article 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 13 December 2011.

  5. 5.

    With regard to the opposition of the AU to the ICC, see Ssenyonjo (2013), pp. 388–394.

  6. 6.

    Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Doc. EX.CL/710(XX), Assembly/AU/Dec.397(XVIII), para. 6.

  7. 7.

    It should be noted that Malawi and Chad had not concluded any specific agreements with Sudan that require the consent of Sudan for the surrender of Sudanese nationals to the ICC (Iverson 2012, p. 138).

  8. 8.

    Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, para. 60.

  9. 9.

    Ibid., para. 61. It is problematic that the judgment did not refer to the national prosecution of serious international crimes with respect to the third circumstance. See Wirth (2002). 

  10. 10.

    See also Triffterer and Ambos (2016), p. 2128.

  11. 11.

    See Decision Pursuant to Article 87 (7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 12 December 2011, paras 22–36. See also Cassese et al. (2013), pp. 320–322.

  12. 12.

    “[I]t should be born in mind that it was the inviolability of diplomatic premises that was at the heart of the debate on article 98(1)” (Triffterer and Ambos 2016, p. 2124). C. Kreß and K. Prost, the authors of the cited section of the Commentary, were delegates at the Rome Diplomatic Conference (Iverson 2012, p. 141).

  13. 13.

    Article 22 of the Vienna Convention on Diplomatic Relations provides: “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”

  14. 14.

    See Iverson (2012), p. 141.

  15. 15.

    See Sect. 4.1.1.1 of Part I. With respect to the problem of selectivity or partiality, see generally Stahn (2019), pp. 166–171; Kendall (2014), pp. 55–58; Cryer (2005), pp. 191–330; Simpson (1997), pp. 4–11.

  16. 16.

    Van der Wilt further notes, “courts of former colonial powers should be extremely careful in taking the lead in the prosecution and trial of suspects of atrocities in armed conflicts which are the legacy of their own states’ gloomy machinations. … Finding the best place for prosecution requires a sixth sense for political sensitivities” (Van der Wilt 2011, p. 1066).

  17. 17.

    Menon (2015–2016), pp. 260–261.

  18. 18.

    Ibid.

  19. 19.

    See Schwöbel (2014), pp. 269–270.

  20. 20.

    See Materu (2014), pp. 219–221; Ssenyonjo (2013), pp. 396–401.

  21. 21.

    See Sect. 6.2.6.1 of Part II.

  22. 22.

    Especially with regard to the crime of aggression, a lack of relevant conventional law as well as state practice is notable.

  23. 23.

    See Sect. 2.3 of Part I.

  24. 24.

    International Committee of the Red Cross, Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977: Commentary of 1987, Penal Prosecutions, para. 4618, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=C6692EB184B56F56C12563CD0043A476, Accessed 29 May 2021.

  25. 25.

    The ICRC repeatedly noted that this provision does not mean the denial of the prosecution of serious violations of humanitarian law. See Close (2019), pp. 123–133.

  26. 26.

    Besides the state practices referred to in this section, the activities of the Truth and Reconciliation Commission of South Africa, which involved the grant of amnesty for serious human rights violations committed during the Apartheid regime, have also been evaluated positively by the international community, although they have not been endorsed by the United Nations in a specific manner. With respect to the process of transition and the activities of the Truth and Reconciliation Commission in South Africa, see Dugard (1998), pp. 277–311; Berat and Shain (1995), pp. 163–189.

  27. 27.

    Hayner (2011), pp. 201–203.

  28. 28.

    Mozambique’s Parliament enacted the fourth amnesty law in 2019. See Mavhinga (2019).

  29. 29.

    Bartoli et al. (2009), p. 153. See also Wijk (2011), pp. 289–314.

  30. 30.

    With regard to the peace process in El Salvador, see Buergenthal (1994), pp. 502–504.

  31. 31.

    Situation of Human Rights in El Salvador, Note by the Secretary-General, U.N. Doc., A/47/596 (1992), p. 47. For details on human rights violations in the internal conflicts of El Salvador, see Buergenthal (1994), pp. 528–532.

  32. 32.

    Law on General Amnesty for the Consolidation of Peace, 1993, cited in Kritz (1995), pp. 546–548.

  33. 33.

    U.N. Press Release: Secretary-General Expresses Concern over Amnesty Law Adopted by El Salvador Legislative Assembly, U.N. Doc., SG/SM 4950, 24 March 1993, p. 1, cited in Brody (1995), p. 166, fn. 79.

  34. 34.

    Buergenthal (1994), pp. 535–536.

  35. 35.

    With regard to the peace process in Haiti, see generally, Scharf (1996a), pp. 1–41.

  36. 36.

    The Situation of Democracy and Human Rights in Haiti: Report of the Secretary-General, U.N. Doc., A/47/975; S/26063 (1993), pp. 2–3. With regard to the amnesty clause in the Agreement, see Scharf (1996a), pp. 6–7.

  37. 37.

    Ibid., pp. 5–7.

  38. 38.

    Note by the President of the Security Council, U.N. Doc., S/26668 (30 October 1993). Afterwards, as the military regime stiffened its attitude again, the United Nations Security Council authorized to form a multinational force to restore the legitimate authorities of the Haitian government (U.N. Doc., S/RES/940 (1994)). However, before an imminent invasion of US military forces, an agreement was concluded between the United States and Haiti on the resignation and amnesty of Haitian military leaders. See Burke-White (2000), pp. 14–15; Collins Jr and Cole (1996), pp. 227–228.

  39. 39.

    The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, U.N. Doc., S/2004/616* (23 August 2004), para. 64(c).

  40. 40.

    The Note states, “[t]o comply with these international legal obligations, transitional justice processes should seek to ensure that States undertake investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law, … These international standards further set the normative boundaries of UN engagement, for example: the UN will neither establish nor provide assistance to any tribunal that allows for capital punishment, nor endorse provisions in peace agreements that include amnesties for genocide, war crimes, crimes against humanity, and gross violations of human rights” (Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice, March 2010, p. 4, https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf, Accessed 29 May 2021). See also Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels, U.N. Doc., A/RES/67/1, 30 November 2012, para. 22.

  41. 41.

    U.N. Doc., S/RES/1820 (2008), para. 4.

  42. 42.

    Ibid.

  43. 43.

    U.N. Doc., S/RES/1315 (2000).

  44. 44.

    The Security Council also adopted resolutions that emphasize “the responsibility of States to comply with their relevant obligations” with respect to the prosecution of core crimes (U.N. Doc., S/RES/1674 (2006), para. 8; S/RES/1894 (2009), para. 10; S/RES/2222 (2015), para. 5). However, these resolutions make use of the term “their relevant obligations” and further call upon member states to ratify respective international conventions on international humanitarian law and human rights law (U.N. Doc., S/RES/1674 (2006), para. 9; S/RES/1894 (2009), para. 5; S/RES/2222 (2015), para. 17). They do not apparently suggest that an obligation to prosecute core crimes has generally been established under customary international law. Another resolution of the Security Council “[u]rges all States concerned to take action to bring to justice perpetrators of grave violations of human rights and international humanitarian law” (U.N. Doc., S/RES/1653 (2006), para. 6). Nonetheless, the term “urges” is not recognized as giving rise to a specific obligation on the part of member states (Gruenberg 2009, p. 489).

  45. 45.

    See Tomuschat (2002), p. 338.

  46. 46.

    Report of the Preparatory Committee on the Establishment of an International Criminal Court: Part One, Draft Statute for the International Criminal Court (U.N. Doc., A/CONF.183/2/Add.1 (1998), p. 41, fn. 42).

  47. 47.

    Wedgwood (1999), p. 96.

  48. 48.

    P. Kirsch, who chaired the Rome Diplomatic Conference, noted that this “creative ambiguity” of the Rome Statute could potentially allow prosecutors and judges to avoid prosecution because of amnesty. See Scharf (1999), pp. 521–522.

  49. 49.

    Majzub (2002), pp. 266–267; Young (2002), pp. 466–467.

  50. 50.

    O’Brien (2005), pp. 270–271.

  51. 51.

    Young (2002), pp. 467–468. Cf. Gavron (2002), p. 111; Majzub (2002), pp. 268–269.

  52. 52.

    See O’Brien (2005), p. 271; Young (2002), pp. 469–470; Majzub (2002), p. 271.

  53. 53.

    For instance, the District Court in Dili generally exercised jurisdiction on serious crimes including genocide, war crimes, and crimes against humanity (Regulation No. 2000/11 on the Organization of Courts in East Timor, UNTAET/REG/2000/11, 6 March 2000, Section 10.1). Also, the recent peace agreement in Colombia does not allow amnesty for war crimes, crimes against humanity, or serious human rights violations (Sarsina 2019, pp. 155–161; Josi 2017, pp. 409–410), although it has been criticized that the peace agreement allows restorative sanctions that are disproportionately light considering the serious nature of the crimes (ibid., pp. 410–412). The Ordinance on the Investigation of Disappeared Persons, Truth and Reconciliation Commission, 2012, that was adopted in Nepal widely admitted amnesty for crimes committed during the civil war, but Nepal’s Supreme Court ordered the amendment of the provision of amnesty for serious violations of human rights (Kersten 2014). See also state practices analyzed in Close (2019), pp. 160–179.

  54. 54.

    Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, U.N. Doc., S/1999/777, 12 July 1999.

  55. 55.

    Article IX of the Agreement.

  56. 56.

    Article VI of the Agreement.

  57. 57.

    U.N. Doc., S/RES/1270 (1999), para. 8.

  58. 58.

    Article 1 of the Statute of the Special Court for Sierra Leone, U.N.Doc., S/2002/246, 8 March 2002, p. 29.

  59. 59.

    Preamble to the Statute, in ibid. The Special Court exercises jurisdiction over crimes against humanity (Article 2), serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 3), other serious violations of international humanitarian law (Article 4), and crimes under Sierra Leonean law (Article 5) (ibid., pp. 30–32).

  60. 60.

    Wijk (2011), p. 305; Ssenyonjo (2005), pp. 411–412.

  61. 61.

    Under the amnesty law, 26,000 former rebels had been granted amnesty by 2014 (Gladys 2014).

  62. 62.

    With respect to the self-referral to the ICC by the Ugandan government and the problem of amnesty for LRA leaders, see Ssenyonjo (2007), pp. 361–389.

  63. 63.

    Close (2019), p. 173; Ssenyonjo (2005), pp. 421–422.

  64. 64.

    The attitude of the Ugandan government regarding amnesty was ambiguous during this period. Although the Amnesty Law of 2000 was amended in 2006 to provide for the non-application of amnesty for certain LRA leaders, the scope of such exception was not specified. See Yarbrough (2014), pp. 541–542, 563–564.

  65. 65.

    Section 3.1. of the Agreement, U.N. Doc., S/2007/435, 17 July 2007, p. 5; Section 6.1. of the Agreement, in ibid., p. 7.

  66. 66.

    Close (2019), pp. 239–240. With respect to further development of discussions on the amnesty law in Uganda, see ibid., pp. 173–174.

  67. 67.

    Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, https://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf, Accessed 29 May 2021.

  68. 68.

    Articles 2–6 of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf, Accessed 29 May 2021.

  69. 69.

    Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, U.N. Doc., A/53/850; S/1999/231, 16 March 1999, Annex, paras 198–209.

  70. 70.

    Ibid., paras 202–207.

  71. 71.

    Jeffery (2012), pp. 67–71.

  72. 72.

    Ibid.; Aspinall and Zain (2014), pp. 87–88.

  73. 73.

    Section 2 of the Memorandum of Understanding Between the Government of the Republic of Indonesia and the Free Aceh Movement, http://peacemaker.un.org/sites/peacemaker.un.org/files/ID_050815_Memorandum%20of%20Understanding.pdf, Accessed 29 May 2021.

  74. 74.

    Section 5 of the Memorandum.

  75. 75.

    Aspinall and Zain (2014), pp. 96–99.

  76. 76.

    Ibid., pp. 96–107.

  77. 77.

    See generally, Khan (2009), pp. 2–5.

  78. 78.

    Ibid., pp. 5–7.

  79. 79.

    Ibid., pp. 17–18.

  80. 80.

    Ibid., pp. 18–19; Carlson (2012), pp. 413–417.

  81. 81.

    Niland (2010), p. 940.

  82. 82.

    Carlson (2012), pp. 395–396, 413; Khan (2009), pp. 8, 20.

  83. 83.

    See generally, Wijk (2012), pp. 746–747; Wijk (2011), pp. 303–304.

  84. 84.

    Wijk (2012), p. 747.

  85. 85.

    Annex 6, Section I.5. of the National Reconciliation, Lusaka Protocol, U.N. Doc., S/1994/1441, 22 December 1994, p. 27.

  86. 86.

    U.N. Doc., S/2002/483, 26 April 2002.

  87. 87.

    Chapter II, Section 2 of the Memorandum.

  88. 88.

    Doria (2002), p. 48.

  89. 89.

    Wijk (2012), p. 750.

  90. 90.

    See also state practice referred to in Close (2019), pp. 164–165.

  91. 91.

    See Teitel (2003), pp. 76–77.

  92. 92.

    Nino (1991), p. 2620.

  93. 93.

    Weinstein et al. (2010), p. 47. Weinstein further criticizes, “many involved with international justice have lost sight of its goals in favor of developing and maintaining an international system of criminal law over and above what might be the needs and desires of the victims of abuse. Positive effects that might emerge may be undermined by UN policymakers and bureaucratic procedures, insensitive and inexperienced lawyers, and systems that are out of touch with events on the frontlines” (ibid). Greenawalt doubts the “moral force” of such an obligation where amnesty is actually required to terminate the rule of horrors (Greenawalt 2000, p. 193). See also Schwöbel (2014), pp. 277–278.

  94. 94.

    Nino (1991), p. 2638.

  95. 95.

    Olsen et al. (2010), p. 154.

  96. 96.

    Ibid., pp. 154–159.

  97. 97.

    For instance, Dugard positively evaluates the lack of specific international rules prohibiting amnesty for those crimes, which he argues would make it possible to trade amnesty for peace where there is no other choice (Dugard 1999, p. 1015). Scharf analyzes that the prosecution of crimes against humanity is not obligatory but only permitted in international law in light of relevant state practice (Scharf 1996b, p. 61; Scharf 2006, pp. 339–376). See also Mack (2015), pp. 73–100. In a more general context, Cassese denied the obligation to prosecute aggression, crimes against humanity, and war crimes other than grave breaches of the Geneva Conventions, 1949, as international conventions stipulating the punishment of these crimes have not been concluded (Cassese et al. 2013, p. 289). See also Majzub (2002), pp. 278–279; Naqvi (2010), pp. 110–124. It should be noted that Additional Protocol I also obligates the punishment of grave breaches of the Protocol, but its customary law status is arguable at least partially in any event. On the other hand, Schmitt argues that an obligation has been established under customary international law to prosecute war crimes in general, including war crimes as violations of the Hague Law as well as those committed in non-international armed conflicts (Schmitt 2011, pp. 44–48). See also International Committee of the Red Cross, IHL Database: Customary IHL, Rule 158. Prosecution of War Crimes, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158, Accessed 29 May 2021.

  98. 98.

    Armed conflicts that are geographically international in the regulation of terrorism are recognized as non-international armed conflicts under international law as they are not conflicts between nations. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006), 630–631.

  99. 99.

    See Sect. 6.2.6.1 of Part II.

  100. 100.

    The Office of the Prosecutor, Prosecutorial Strategy, 2009–2012, 1 February 2010, para. 17, https://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf, Accessed 29 May 2021.

  101. 101.

    Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Prosecutor v. M. Kallon & B. Kamara, SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), 13 March 2004, para. 82.

  102. 102.

    Ibid., paras 82–84.

  103. 103.

    Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis in Idem and Amnesty and Pardon), 002/19-09-2007/ECCC/TC, 3 November 2011, paras. 53.

  104. 104.

    First Report on Crimes Against Humanity by Sean D. Murphy, Special Rapporteur, U.N.Doc., A/CN.4/680, 17 February 2015, para. 12. However, it is noteworthy that the Special Rapporteur of the ILC argued that a provision on amnesty should not be addressed in the draft articles (Third Report on Crimes Against Humanity by Sean D. Murphy, Special Rapporteur, U.N. Doc., A/CN.4/704, paras 296–297).

  105. 105.

    Article 6, Draft Articles on Prevention and Punishment of Crimes Against Humanity, Report of the International Law Commission, Seventy-first Session, U.N.Doc., A/74/10 (2019), pp. 13–14.

  106. 106.

    Article 10, ibid., p. 15.

  107. 107.

    Exceptional recognition of amnesty in some cases of national transition may be regarded as an option of international rulemaking on the regulation of serious international crimes. See the discussions of Jackson (2007), pp. 134–140; Sarsina (2019), pp. 177–197; Close (2019), pp. 115–145, 246–249. It is noteworthy that, in the field of human rights law, the ICCPR provides in Article 4(1) that states may derogate from their obligations under the Covenant “[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” under the condition that “such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” The European Convention on Human Rights and American Convention on Human Rights also have such derogation clause. See Sarsina (2019), pp. 177–191; Jackson (2007), pp. 134–137.

    States in transition have occasionally avoided prosecution of grave breaches of the Geneva Conventions, genocide, and torture, the prosecution of which is specifically obligated by multilateral conventions. For instance, the Ugandan amnesty law of 2000 granted amnesty for criminal acts including torture that were committed during Ugandan internal conflicts (see Sect. 7.2.4 of Part III and Ssenyonjo 2005, pp. 411–422), notwithstanding the case that Uganda ratified the Torture Convention in 1986. Afghanistan also ratified the Torture Convention in 1987 but the amnesty law of 2007 recognized amnesty for criminal acts including torture that were committed during the internal armed conflicts (see Sect. 7.2.4 of Part III and Khan 2009, p. 18). Further, Indonesia ratified the Torture Convention in 1998, but the Indonesian government has been passive in the prosecution of human rights violations including torture that were committed during the armed conflicts in Ache that lasted almost 30 years since the 1970s (see Sect. 7.2.4 of Part III and Aspinall and Zain 2014, pp. 87, 96–99). The Extraordinary Chambers in the Courts of Cambodia exercises jurisdiction on serious crimes including torture, the crime of genocide, and grave breaches of the Geneva Conventions, but the prosecution is only expected for leaders as suspects of these crimes. Even more, while the ICTR was engaged in the prosecution of leaders who were involved in serious violations of international humanitarian law including genocide, quasi-criminal proceedings were conducted for others who were also involved in those crimes (see Nwoye 2014, pp. 119–208; Westberg 2011, pp. 331–367; Wierzynski 2004, pp. 1934–1969). If these types of state practice are to be evaluated positively, it seems necessary to rely on the concept of necessity or force majeure as a ground for precluding, at least temporarily, the illegality of the avoidance of prosecution in genuinely exceptional cases. See the discussions in Sarsina (2019), pp. 197–227; Scharf (2006), p. 373.

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  1. Department of International Relations, National Defense Academy of Japan, Yokosuka, Japan

    Hiromi Sato

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Sato, H. (2021). Problems in Direct and Indirect Enforcement on the Prosecution of Core Crimes. In: Multilayered Structures of International Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-030-83845-4_7

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