The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance?

The Legacy of Nuremberg International Humanitarian Law Series VOLUME 20 Editors-in-Chief Professor Christopher Greenw...

Author: David A. Blumenthal | Timothy L. H. McCormack

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The Legacy of Nuremberg

International Humanitarian Law Series VOLUME 20 Editors-in-Chief Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conﬂict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conﬂict and regulation of the means and methods of warfare –

questions of application of the various legal regimes for the conduct of armed conﬂict

–

issues relating to the implementation of International Humanitarian Law obligations

–

national and international approaches to the enforcement of the law and

–

the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles in this series are listed at the end of this volume.

The Legacy of Nuremberg: Civilising Inﬂuence or Institutionalised Vengeance?

Edited by

David A. Blumenthal Timothy L.H. McCormack

LEIDEN • BOSTON 2008

Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 90 04 15691 3 Copyright 2008 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoﬀ Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microﬁlming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Cover photo © anp Nuremberg War Crimes Trials Printed and bound in The Netherlands.

Dedicated to: Ruth Blumenthal and Jacob Albert Hearnden McCormack

Table of Contents

Foreword Rt. Hon. Sir Ninian Stephen

xiii

Notes on Contributors

xv

Editors’ Preface

xxi

Part One The Nuremberg Trial in Historical Context



Chapter  The Atmospherics of the Nuremberg Trial William Maley



Chapter  The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-Conﬂict Reconstruction Susanne Karstedt I II A B C

The European Experience and the Nuremberg Tribunal The Nuremberg Tribunal and the German Public – Was the IMT Seen as Victor’s Justice? Receiving the Message: Truth as Recovery and Clariﬁcation Which Unique Features Made the Nuremberg Trial a Success with the Contemporary German Public? III Collective Amnesia – IV Regaining Collective Memories –: The Impact of Major Trials V Lessons to Be Learned from the Nuremberg Tribunal: The Slow Pace of Civilising Impact Part Two Nuremberg and the Importance of Criminal Responsibility Chapter  The Importance of a Retributive Approach to Justice Graham T. Blewitt AM

          

viii

Table of Contents

Chapter  Investigating International Crimes: A Review of International Law Enforcement Strategies Expediency v Eﬀectiveness John H. Ralston and Sarah Finnin I A B II A   B     III

Prosecuting International Crimes The Role of Prosecutorial Discretion Eﬀorts to Limit Prosecutorial Discretion Prosecutorial Strategies The Ad Hoc Tribunals The Strategy Developed by the ICTY The Strategy Developed by the ICTR Recently Established Courts and Tribunals The Strategy Developed by the Special Court for Sierra Leone The Strategy Developed for East Timor and Kosovo The Strategy Being Developed at the ICC The Strategy Being Developed for the Khmer Rouge Trials Conclusion

Chapter  Justice Betrayed: Post- Responses to Genocide Mark Aarons I II III IV

Introduction Nuremberg Lessons Holocaust Lessons The International Criminal Court and the Future

Part Three Nuremberg and the Development of Substantive International Criminal Law Chapter  Contributions of the Nuremberg Trial to the Subsequent Development of International Law Michael J. Kelly and Timothy L.H. McCormack I Introduction II Nuremberg and the Development of International Criminal Law A Individual Criminal Responsibility at International Law B The Substantive Crimes in the Nuremberg Charter C Conspiracy as a Basis for Criminal Responsibility III Nuremberg, the Hague Regulations and the Law of Occupation A Background B Iraq and the Hague Regulations C Expropriation

                             

Table of Contents D Economic Reform: Pushing the Envelope? E The Ongoing Impact of Nuremberg Chapter  The Crime of Aggression: Born of the Failure of Collective Security – Still Shackled to its Fate? Time to Catch Up or Part Ways Carrie McDougall I II III IV A B C

ix  



Introduction The Status of Current Debate Crimes against Peace: An Introduction What is a War of Aggression? Quantifying or Qualifying War We Know Aggression When We See It War with the Object of the Occupation or Conquest of the Territory of Another State or Part Thereof War Declared in Support of a Third Party’s War of Aggression War Initiated with the Object of Disabling Another State’s Capacity to Provide Assistance to a Third State (or States) Victim to a War of Aggression Initiated by the Aggressor A War Waged in Individual or Collective Self-Defence Is Not a War of Aggression What Is a War in Violation of International Treaties, Agreements and Assurances? Invasions and the Status of Other Acts of Aggression Conclusion

     

Part Four Nuremberg and Transitional Justice Institution Building



Chapter  Evaluating Timor Leste’s Reception, Truth and Reconciliation Commission Annemarie Devereux and Lia Kent



D E

F V VI VII

I A B II A    B   

Background to the Establishment of the CAVR Momentum for the Establishment of the CAVR Functions of the CAVR Was the CAVR Successful? Truth Seeking and Report Writing Process The Product Impact Community Reconciliation Process Process Product Impact

 

    

           

x

Table of Contents (a) (b) (c) (d) (e) III A B IV V

The Experience of Deponents The Experience of Victims Reparations The Role of Victims in the CRP The Impact of the CRP at the Community Level Some Lessons Learned ‘Survivor-Centred’ Mechanisms The Need for Integrated Transitional Justice Strategies Conclusion Postscript

Chapter  Diﬀerent Models of Tribunals Madelaine Chiam I A B C II A   B   C III A   B IV

International Tribunals: The ICTY and the ICTR Institutional Design How Have the Tribunals Functioned? Lessons of the International Tribunals ‘Mixed’ or ‘Internationalised’ Tribunals The East Timor Special Panels Institutional Design How Did the Panels and SCU Function? The Sierra Leone Special Court Institutional Design How Has the Court Functioned? Lessons of the Mixed Tribunal National Tribunals The Iraqi High Tribunal Institutional Design How Is the Tribunal Functioning? Lessons of the National Tribunal Conclusion

Chapter  The Operations of the International Criminal Court – A Brief Overview and First Impressions Geoﬀrey Skillen I II III IV V

Institutional Matters Crime of Aggression Judicial Matters The Court’s Initial Period The Future

                                  

Table of Contents Part Five Nuremberg and Australian Implementation of International Criminal Law Chapter  Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints Michael Carrel I A II III IV V A

Introduction Australia’s Historic Fears of Japan Japan’s War Crimes Record in World War Two War Crimes and the Law The Allied Prosecution of Japanese War Criminals The Australian Army’s Role What Lessons Can Be Learnt from the Australian War Crimes Trials Program B Strengthening International Humanitarian Law C ‘Victor’s Justice’ D The Need for Adequate Resources E Vulnerability to Outside Pressures VI Postscript Australia’s War Crimes Trials and Sections Chapter  Excluding the Undesirable: Interpreting Article F(a) of the Refugee Convention in Australia Alison Duxbury I II A B III IV V VI

Introduction Choosing the Appropriate International Instrument The Range of Available Deﬁnitions Potential Limits on the Choice of International Instrument Deﬁning War Crimes and Crimes against Humanity The Availability of Defences to Article F(a) Crimes Demonstrating Individual Responsibility for Criminal Acts Conclusion

Chapter  Australian Implementation of the Rome Statute of the International Criminal Court David Blumenthal I Introduction II Uncertain Bedfellows: Australia’s Relationship with International Law III To Join or Not to Join? Australia and the ICC A Early Indications of Support B The Position of the United States C National Sovereignty and the Principle of Complementarity

xi

                        

    

xii

Table of Contents D Key Issues in the Australian Ratiﬁcation Debate  The ICC as a Threat to National Sovereignty  The Crimes within the Jurisdiction of the ICC Are of Uncertain Scope and Meaning  The Court Will Be Unaccountable, Unjust in Its Procedures, and Prone to Political Control  Ratiﬁcation Will Expose Members of the Australian Defence Force to Prosecution and Thereby Compromise Its Ability to Participate in Peacekeeping and Other Operations  Ratiﬁcation of the Rome Statute Would Be Unconstitutional E The Ratiﬁcation Debate Intensiﬁes F Australia Ratiﬁes IV Problems with Australian Domestication of the Rome Statute Oﬀences A The Applicable Law B The Oﬀence of Wilful Killing C Wilful Killing and Recklessness D The Principles of Military Necessity and Proportionality E Protected Persons F Available Defences  The Use of General Criminal Code Defences in relation to a Charge of Wilful Killing  A Defence of ‘Lawful Authority’ G Conclusion on Problems with the Crime of Wilful Killing V Conclusion

   

              

Foreword Rt. Hon. Sir Ninian Stephen

It is now 60 years since Nuremberg ceased merely to be the name of a German city and assumed a very diﬀerent meaning, that of the most important war crimes trial ever held. Those trials were not the very ﬁrst of their kind. As early as 1474 a trial was held to try the Burgundian Governor of Breisach, von Hagenbach, for the ‘Crimes Against the Law of God and Humanity’ of his troops. But war crimes trials were a rarity thereafter until the Allied victory in World War Two, almost ﬁve centuries later. After World War One the Versailles Treaty did provide for the international trial of German war criminals but nothing came of this. Instead a mere handful of accused were tried before German courts and those few who were convicted were given token sentences. So the determination, expressed in the Moscow Declaration of 1943, to set up war crimes trials was a remarkable step towards enforcement of public international criminal law and led, in 1945, to the International Military Tribunal (IMT) being established in Nuremberg to try those accused of war crimes, crimes against peace and crimes against humanity. Twenty-two Germans were tried by the IMT and all but three were found guilty, of whom 12 received the death penalty. Quite apart from the Nuremberg Trial, many hundreds of other war crimes trials were also held in Europe and of course, the Tokyo Tribunal, set up in 1946, heard charges of war crimes alleged against members of the Japanese armed forces. The Nuremberg Trial was held from November 1945 – August 1946, very much at a time when the embers of World War Two were still glowing. Each of the 22 defendants had been high-ranking Nazis and included Hermann Goering, Joachim von Ribbentrop, Rudolf Hess and other names all too familiar through the 1930s and during the war years of the 1940s. At Nuremberg there were three substantive counts in the indictments – crimes against peace, that is, waging aggressive war, war crimes and crimes against humanity. Until Nuremberg customary international law did not outlaw wars, even wars of aggression. It did not make going to war illegal, contenting itself with requiring only that in war certain basic rules of conduct be followed. Again before Nuremberg customary international law had little to say about crimes against humanity, a nation might treat its subjects as it saw ﬁt. Nuremberg represented the end of the notion of unlimited national sovereignty, a new international set of norms of conduct becoming applicable, com-

xiv

Rt. Hon. Sir Ninian Stephen

pliance with superior orders ceased to be a defence and after Nuremberg the illegality of aggressive war was well established. Following Nuremberg crimes against humanity and the protection of human life was extensively developed through the Genocide Convention and a host of other international covenants and conventions. Nuremberg now marks the advent of a new era of international responsibility on the part both of individuals and of states. The 60 years since Nuremberg has seen extraordinary development in international criminal law. At the time of Nuremberg there was by no means unanimous support on the part of the victorious Allied leaders for the holding of such trials. It seems that Churchill was in favour of simple execution of the defendants but the United States, in particular, was insistent upon the holding of proper trials, and the precedent set at Nuremberg was followed in the case of Japanese war crimes by the Tokyo Trial. Whatever may be said about the problem of retrospectivity in relation to, in particular, crimes against humanity and the waging of aggressive war, and this is a legitimate criticism of Nuremberg, the fact is that in the subsequent 60 years these two categories of international crime have become well established as integral parts of international criminal law. Thus the results of Nuremberg have been critical to the development of that law and those war crimes trials will always remain as crucial ingredients of international criminal law. I commend this volume of essays which grapple with the legacy of Nuremberg and which achieve so much in identifying the ongoing contemporary relevance of that profoundly signiﬁcant historical event.

Notes on Contributors

Mark Aarons Mark Aarons has achieved more than any other individual Australian to expose the need for war crimes trials in this country. As a journalist with the Australian Broadcasting Commission in 1986, Mark produced an inﬂuential ABC radio documentary series entitled ‘Nazis in Australia’ which provided the catalyst for the Hawke Government to amend the War Crimes Act to allow the prosecution of war criminals from World War Two and for the establishment of the Special Investigations Unit to investigate former Nazis living in Australia. Mark has authored a number of books including Sanctuary: Nazi Fugitives in Australia (1989), East Timor: A Western Made Tragedy (1992, with Robert Domm) and War Criminals Welcome (2001). Graham Blewitt AM Graham Blewitt currently serves as a Magistrate in the New South Wales Local Court System. He was the founding Deputy Prosecutor of the International Criminal Tribunal for the former Yugoslavia in The Hague and served under successive Prosecutors from 1994–2004. Prior to his appointment in The Hague, Graham worked with the Special Investigations Unit in Sydney and was its second Director from 1988–94. Dr David A. Blumenthal David Blumenthal is a Lecturer in Law at the Melbourne Law School and an academic member of the Asia Paciﬁc Centre for Military Law. David teaches Criminal Law and Procedure, Corporate Criminal Law and Regulation, and United Nations Law and Practice. His PhD thesis focussed on Jewish settlement in the Israeli Occupied Territories, and was entitled ‘A Fragile Consensus: Political Zionism and the Rise of Gush Emunim’. Dr Michael Carrel Michael Carrel is the Team Leader on the Customary International Humanitarian Law Project for the British Red Cross at the Lauterpacht Centre for International Law at the University of Cambridge. He holds a BA from the University of Queensland, a Master of Defence Studies from Deakin University, and a Master of Public and International Law and a PhD from the University of Melbourne.

xvi

Notes on Contributors

His PhD thesis focussed on the Australian war crimes trials of Japanese defendants post-World War Two and was undertaken under the joint auspices of the Asia Paciﬁc Centre for Military Law and the Australian War Memorial. Prior to undertaking his doctoral studies Michael experienced a successful career as a surface-warfare oﬃcer in the Royal Australian Navy. After retirement from the Navy he worked for the International Committee of the Red Cross (ICRC) as a delegate to the Armed and Security Forces in the Balkans. Madelaine Chiam Madelaine Chiam holds Arts and Law degrees from the University of Melbourne and a Master of Laws from the University of Toronto. From 2002–06, she was a Research Fellow and Lecturer at The Centre for International and Public Law, Australian National University College of Law. She is a member of the Executive Council of the Australian and New Zealand Society of International Law. Dr Annemarie Devereux Annemarie Devereux is an international lawyer, specialising in international human rights law. From 1995–2000 Annemarie worked for the Australian Commonwealth Attorney-General’s Department – particularly in the Oﬃce of International Law. Between 2000 and 2005, she worked as a Legal Advisor for the human rights component of three United Nations peacekeeping missions in Timor Leste, including providing advice concerning the establishment of the Reception, Truth and Reconciliation Commission. In 2006, she returned to Timor Leste to work with the UN’s Independent Special Commission of Inquiry (ICOI) for Timor Leste. She is currently undertaking research as a Senior Research Fellow with the Institute for Ethics, Governance and Law and a Senior Lecturer with Australian Catholic University (ACU). Alison Duxbury Alison Duxbury is a Senior Lecturer in the Melbourne Law School and an academic staﬀ member of the Asia Paciﬁc Centre for Military Law. Alison teaches International Humanitarian Law, Law of International Institutions, and Administrative Law. She is a member of the Australian Red Cross – Victoria Advisory Committee on International Humanitarian Law and of the International Advisory Commission of the Commonwealth Human Rights Initiative based in Delhi. Alison is Co-Convenor of the University of Melbourne’s Human Rights Forum. She is also a candidate for PhD and is completing a thesis on ‘The Role of Human Rights and Democracy in Determining the Participation of States in International Organisations’. Sarah Finnin Sarah Finnin holds an Arts/Law (Hons) degree from the University of Melbourne and is a Research Fellow at the Asia Paciﬁc Centre for Military Law. Sarah has

Notes on Contributors

xvii

made three extended visits to Washington DC to work with David Hicks’ military-appointed defence counsel, US marine, Major Michael D. Mori and, on the third visit, has also worked more generally with the Oﬃce of the Chief Defense Counsel for the US Oﬃce of Military Commissions. Sarah is a PhD candidate with the Asia Paciﬁc Centre for Military Law and is writing a thesis on ‘How Prosecutors Shape International Criminal Law and Justice’. Professor Susanne Karstedt Susanne Karstedt is Professor of Criminology at Keele University in the United Kingdom. In 2005 Susanne was the ﬁrst criminologist to be awarded the Christa Hoﬀman-Riehm Award for Socio-Legal Studies – a major scientiﬁc prize for social sciences in Germany. In 2007 she received the prestigious Sellin-Glueck Award of the American Society of Criminology. Susanne has been a Visiting Scholar at the Australian National University, Canberra, and regularly teaches in the Master Programme at the International Institute of the Sociology of Law in Onati, Spain. She has researched and published widely on processes of coming to terms with the past in Germany, her most recent project analysing the ‘life after punishment’ of Nazi war criminals. She has edited a book on Legal Institutions and Collective Memories (Hart 2007). Colonel Michael J. Kelly AM (ret.) Mike Kelly is the endorsed Labor Party candidate for the Australian Federal Electorate of Eden-Monaro. He served for 20 years as an Australian Army Legal Oﬃcer with operational deployments in Somalia, the Balkans, East Timor and Iraq. Mike completed two tours of duty in Iraq serving in the Oﬃce of Legal Counsel to the Coalition Provisional Authority. He completed a PhD in 1996 based largely on his experiences as an Australian Defence Force Legal Oﬃcer in Somalia and which he subsequently published as Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework with Kluwer Law International in The Hague. Lia Kent Lia Kent worked as a member of the Human Rights Unit attached to the United Nations Transitional Administration in East Timor from 2000–02. In 2004 Lia undertook an evaluation of the Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation (CAVR) in East Timor for the Judicial Systems Monitoring Programme, funded by a Dunlop Asia Fellowship. Lia is currently a PhD candidate with the School of Political Science, Criminology and Sociology at Melbourne University, and is undertaking a thesis entitled ‘Exploring Community Expectations of Transitional Justice in Timor Leste’.

xviii Notes on Contributors Professor William Maley AM William Maley is the Foundation Director of the Asia-Paciﬁc College of Diplomacy at the Australian National University. He is also a member of the Executive Committee of the Refugee Council of Australia and of the Australian Committee of the Council for Security Cooperation in the Asia Paciﬁc (CSCAP). William taught for many years in the School of Politics, University College, University of New South Wales, Australian Defence Force Academy, and has served as a Visiting Professor at a number of leading overseas institutions including at the Russian Diplomatic Academy and at the Refugee Studies Programme at Oxford University. Professor Timothy L.H. McCormack Tim McCormack is the Foundation Australian Red Cross Professor of International Humanitarian Law and Foundation Director of the Asia Paciﬁc Centre for Military Law at the Melbourne Law School. He acted as amicus curiae on international law issues for Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia in The Hague in the trial of Slobodan Milošević (2002–06) and has recently acted as expert consultant on law of war issues to the Defence Team in the trial of David Hicks by US Military Commission (2003– 07). Carrie McDougall Carrie McDougall is a barrister and solicitor of the Supreme Court of Victoria and the High Court of Australia. Carrie is a sessional lecturer at the Melbourne Law School and a PhD candidate with the Asia Paciﬁc Centre for Military Law. Carrie’s PhD topic focuses on the current eﬀorts to negotiate a deﬁnition of the international crime of aggression for inclusion in the Rome Statute of the International Criminal Court. She is currently participating as a member of the Australian Government Delegation to the meetings of the inter-governmental Special Working Group on the Crime of Aggression. John Ralston John Ralston is the Executive Director of The Hague based Institute for International Criminal Investigations and also Director of JRI Global, an international criminal investigation consultancy practice. He served for several years as the Chief of Investigations with the Oﬃce of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) with overall responsibility for investigation of alleged atrocities in the Balkans. John was a foundation member of the ICTY, joining as an Investigation Team Leader, he was responsible for establishing the Tribunal’s ﬁrst investigations and preparing standard operating procedures. A former homicide detective in Australia, he spent several years investigating Nazi war criminals for the Commonwealth AttorneyGeneral’s Special Investigations Unit. In 2004–05 he served Chief Investigator

Notes on Contributors

xix

for the UN Independent Commission of Inquiry for Darfur, Sudan. He also recently spent four years leading organised crime investigations with the NSW Crime Commission. Geoﬀrey Skillen Geoﬀ Skillen is Principal Legal Oﬃcer in the Oﬃce of International Law at the Australian Commonwealth Attorney-General’s Department and represents his Department on the Australian Red Cross National Advisory Committee on International Humanitarian Law. In that capacity he was involved with the preparation of the legislation necessary to enable Australia to ratify the Statute of the International Criminal Court, namely the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth). From 1995–98 Geoﬀ was Director-General of the Australian Defence Force Legal Service and, in that capacity, represented the Australian Government in successive Preparatory Committee sessions and at the Rome Diplomatic Conference to negotiate the Statute of the International Criminal Court. Rt. Hon. Sir Ninian Stephen KG AK GCMG GCVO KBE Sir Ninian Stephen is a former judge of the High Court of Australia (1972– 82) and former Governor-General of Australia (1982–88). He was also the ﬁrst Australian Ambassador for the Environment. Sir Ninian was a founding judge of the International Criminal Tribunal for the former Yugoslavia in The Hague (1993–97) and a member of the UN Secretary-General’s Panel of Experts to investigate the possibility of an international criminal tribunal for Cambodia. He continues to serve as the founding Patron of the Asia Paciﬁc Centre for Military Law.

Editors’ Preface

Major anniversaries prompt particular pause for reﬂection – a phenomenon we experience at every level – from the personal to the global and at every level in between. Since 2005 the international community has focussed on a succession of 60th anniversaries of events surrounding the end of World War Two – the liberation of Auschwitz (and other Nazi concentration camps), the Allied victory in Europe, the dropping of the atomic weapons on Hiroshima and Nagasaki, victory in the Paciﬁc and the establishment of the United Nations. In 2008 the Genocide Convention will be 60 years old and the following year the international community will mark the 60th anniversary of the four Geneva Conventions. In the midst of the anniversaries of these other events, the international community has also marked the 60th anniversary of the Nuremberg Trial, commencing as it did in November 1945 with delivery of the judgment in October 1946. The Asia Paciﬁc Centre for Military Law took the opportunity aﬀorded by the 60th anniversary of the commencement of the Nuremberg Trial to organise a seminar in Canberra. The Centre’s Charter mandates us to promote understanding and respect for the rule of law in military aﬀairs. The Nuremberg Trial achieved so much in its implementation of the principle of individual criminal responsibility for violations of the law of war that we could not accept the passing of the anniversary without appropriate reﬂection. We set aside a day to discuss the Trial and its legacy – reﬂecting back six decades, but with a determination to ground our evaluations in the present and the future. To this end, we sought to assess the contemporary application of lessons learnt at Nuremberg, and to consider how the legacy of the Trial continues to inﬂuence the development of international criminal law and the concepts of justice and reconciliation. We were particularly interested in critiques of the prevailing model of retributive justice, including examination of alternative approaches to justice for societies in transition from protracted violence. The volume consists of a series of diverse and insightful papers, each of which deals with a diﬀerent aspect of the legacy of Nuremberg, written from the unique perspective of its particular author. Some papers constitute academic critiques, examining and assessing in detail a speciﬁc aspect of the legacy of Nuremberg in light of the current state of knowledge in the ﬁeld of transitional and criminal justice. Other papers are written from a practitioner’s perspective with a more discursive style, exploring aspects of Nuremberg from a more direct and personal experience with its legacy.

xxii

David A. Blumenthal and Timothy L.H. McCormack

The volume opens with two ground-breaking contributions focussed primarily upon little-known aspects of the historical context of the Nuremberg Trial. William Maley’s ‘Atmospherics of the Nuremberg Trial’ provides an illuminating background to Russian and French involvement in the Trial and a wonderful series of vignettes of the key personalities – judges, prosecutors and defence counsel. Maley’s characterisation of Robert Jackson as the pre-eminent personality in the Trial will not surprise, but Maley appropriately holds up Jackson’s impressive perspicacity in relation to the moral signiﬁcance of the Trial as the benchmark for questioning contemporary threats to justice and the rule of law in pursuit of the so-called ‘global war on terror’. The second essay in this ﬁrst part of the volume is by Susanne Karstedt, who examines German societal attitudes to the Nuremberg Trial. In this fascinating socio-legal analysis, Karstedt expertly reveals an enthusiastic endorsement by the overwhelming majority of the German people of the Trial of the Nazi leadership by the victorious Allied Powers. Karstedt challenges the orthodoxy of victors’ justice as wholly unpalatable, and is surely thoroughly deserving of the honours conferred by her native Germany for her contributions to scholarship in this ﬁeld. Our volume is strengthened immeasurably by the inclusion of her essay. The second part of the volume includes three essays which all argue for the fundamental importance of criminal responsibility for egregious international crimes. Interestingly, all three essays are written by individuals who have dedicated their professional lives to the pursuit of the goal they so passionately advocate. The respective chapters are written very much from practical experience and, although their professional pursuits are markedly diﬀerent, each of them writes with enviable authenticity as a consequence. The ﬁrst contribution is by Graham Blewitt, who for 10 years acted as Deputy Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Prior to that posting, Blewitt had served as a prosecutor in the Special Investigations Unit set up to investigate and try former Nazis who had come to live in Australia. He draws on both experiences to substantiate his view that retribution for those responsible for gross injustice is a fundamental pre-requisite for restoration to victims and their families. The second contribution is from John Ralston and Sarah Finnin. Ralston served at the ICTY in The Hague for several years as a special investigator for the Oﬃce of the Prosecutor and draws on his forensic experience to argue the case for individual criminal responsibility. Finnin has been advising the Oﬃce of the US Military Commissions’ Defense Counsel on relevant issues of international law. Their utilisation of empirical data to contrast the beneﬁts to communities of prosecution of alleged war criminals with the deleterious eﬀects of impunity is compelling reading. The ﬁnal contribution in this part of the volume is from Mark Aarons who, as an investigative journalist in the 1980s, single-handedly did more than any other person to expose the presence of former Nazis in Australia who ought to be investigated and prosecuted for their alleged involvement in wartime atrocities. Aarons laments the betrayal of

Editors’ Preface xxiii the principles underlying the Nuremberg Trial in the subsequent and successive failures to prosecute egregious crimes. He is excoriating of political expediency which all too often has turned a blind eye to atrocity and ignored the lofty principles declared at Nuremberg and, all too often, in empty political rhetoric since. The Nuremberg Trial has spawned an impressive legacy in the subsequent development of substantive international criminal law. This was, after all, the ﬁrst international criminal tribunal established to try individuals for their alleged violations of international law. The third part of the volume includes two essays on selected aspects of the inﬂuence of the jurisprudence in the Trial on the subsequent development of the substantive law. The ﬁrst of these two essays is a collaborative eﬀort by Mike Kelly and Tim McCormack. The authors make some general observations on the subsequent development of international criminal law but are particularly interested in two issues of contemporary signiﬁcance: the notion of conspiracy as a basis for individual criminal liability, and the law of military occupation. The Nuremberg Judgment was relied upon by the US Supreme Court in the 2006 case of Hamdan to declare the US Military Commission formulation of conspiracy unfounded in international law, and by the Coalition Provisional Authority in Iraq during the occupation phase of military operations to guide decision-making in that context. The authors draw on their respective practical experiences to demonstrate the ongoing relevance of the Nuremberg jurisprudence. Carrie McDougall provides the second essay in this part of the volume – this time on the current negotiations for a deﬁnition of the international crime of aggression in the Rome Statute. Here the issue is not the contemporary relevance of Nuremberg jurisprudence but the challenge of giving practical eﬀect to a politically-laden aspect of the Trial. In 1945 it was considered essential that Axis leaders be held accountable for involvement in aggressive war. For 60 years since Nuremberg, the eﬀort to translate the imposition of the principle on the losers of the war into a formula with potentially universal application has consistently foundered. McDougall expertly captures the current impasse. The proliferation of new ‘justice’ institutions to assist the transition of societies from extended violence to more peaceful existence is a common theme throughout many of the contributions to the volume. In the fourth part of the book three essays focus in more detail on selected aspects of this theme. The ﬁrst chapter here is a collaborative eﬀort by Annemarie Devereux and Lia Kent and critiques the eﬃcacy of Timor Leste’s Reception, Truth and Reconciliation Commission. The authors have both been intimately involved in Timor Leste’s transition from violence and their essay reﬂects a sympathetic appreciation of the challenges facing the Commission. One key issue was that the Commission only had limited jurisdiction to deal with deﬁned non-serious oﬀences while all deﬁned serious oﬀences were to be dealt with by criminal trial. Unfortunately the practical limitations on Timor Leste to prosecute those most responsible for the atrocities perpetrated from 1975–99 frustrated the intended complementary eﬃcacy of the Commission. Madelaine Chiam has contributed a detailed analysis

xxiv David A. Blumenthal and Timothy L.H. McCormack of the strengths and weaknesses of diﬀerent models of criminal tribunals. As the emergence of new criminal institutions continues apace, conﬁrming the inappropriateness of a one-size-ﬁts-all approach to modalities for criminal accountability, this particular contribution is both timely and welcome. Geoﬀ Skillen completes this part of the volume with a brief overview of the early operation of the International Criminal Court. There is heightened interest in prospects for the Court’s ability to consolidate progress for the fulﬁlment of the promise of Nuremberg and many eagerly anticipate the Court’s ﬁrst jurisprudence. The ﬁnal part of the book has an unashamedly Australian national focus on the implementation of international criminal law. After all, if the legacy of Nuremberg is as pervasive as the contributions in the volume suggest, then evidence should be palpable even in the Antipodes. Michael Carrel introduces us to a highly signiﬁcant and yet largely unknown part of Australia’s military legal history – the conduct of 310 war crimes trials between 1945–51 of more than 800 Japanese defendants. Carrel has recently completed his PhD dissertation on this topic and begins the important task here of unlocking much of the primary material to a broader audience than hitherto has been the case. Alison Duxbury’s essay is much more contemporary in focus – homing in as it does on extensive international criminal law jurisprudence in the Australian Administrative Appeals Tribunal in relation to the interpretation and application of Article 1(F) of the Refugee Convention. Although this jurisprudence is more readily accessible than Australia’s post-World War Two trials, it is nevertheless under-researched. Duxbury makes an excellent contribution here with the ﬁrst sustained analysis of this growing body of case law. Finally, David Blumenthal critiques the Australian public debate in relation to the decision to ratify the Rome Statute as well as the ensuing implementing legislation. Much of this episode is profoundly disconcerting – particularly given the high-proﬁle role Australia played in chairing the so-called Like Minded Group of States throughout the Rome Diplomatic Conference. Blumenthal demonstrates some of the political exigencies inherent in the enforcement of international criminal law – issues observable at Nuremberg and at every stage since. As with any edited volume of this kind, the ﬁnal publication represents the combined eﬀorts of many people and we take this opportunity to acknowledge the assistance of the key players. The various contributors to the volume have been a pleasure to work with. They were all pleased to participate in our seminar and have produced quality written papers subsequently. We are grateful for their willingness to share their scholarship and to remain patient with us throughout a protracted editing process. It is always a pleasure to work with Lindy Melman and the team at Martinus Nijhoﬀ Publishers. Lindy shared our enthusiasm both for the concept of our seminar and for publication of an edited volume of essays arising from it and we gratefully acknowledge her support and encouragement. Cathy Hutton, the Administrator of the Asia Paciﬁc Centre for Military Law, organised and ran the seminar with precision and has provided invaluable assist-

Editors’ Preface

xxv

ance throughout the editing process of this volume. Three of our postgraduate students have assisted us with the editing process. Paramdeep Mtharu’s contributions were undertaken with her characteristic charm and diligence. Sarah Finnin and Michelle Lesh have carried the bulk of the load and we gratefully acknowledge their outstanding competence, perseverance and professionalism. We are fortunate indeed to work with such wonderful young colleagues. David Blumenthal dedicates his involvement in this volume to his mother Ruth, who in spite of the dark shadow that the Holocaust cast over her own family, has always passionately advocated an approach to justice informed by reason and conscience, rather than wrath. Tim McCormack dedicates his involvement in this volume to his eldest son Jacob who regularly demonstrates his own acute sense of justice and fairness and who also has his own connections with much of what Nuremberg represents. His name was carefully chosen for it was shared by two of his greatgrandfathers – coincidentally the maternal grandfathers of both his parents. It is Karin’s Opa, Jacobus Post, who provides a link because he fought with the Dutch Resistance against the Nazi occupation of his homeland and risked his own life to help save the lives of members of the Dutch Jewish community. Tim’s view is that ‘you and I both, my son, share a rich heritage and there is much to inspire us in the lives of those whose names we bear’. David A. Blumenthal Timothy L.H. McCormack Melbourne Law School

Part One The Nuremberg Trial in Historical Context

Chapter 1 The Atmospherics of the Nuremberg Trial William Maley

I would like to begin by going back to a diﬀerent time, a diﬀerent place, and a different crime. On 1 December 1934, on a cold and gloomy day, a young man called Leonid Nikolaev entered the Smolny Institute in Leningrad and assassinated Sergei Mironovich Kirov, who was the head of the Leningrad Party Organisation in the Soviet Communist Party. This assassination was subsequently characterised by Robert Conquest as the crime of the century, and it was striking for the people of the Soviet Union because in its aftermath – and particularly in the years 1937–38 – the People’s Commissariat of Internal Aﬀairs of the Soviet Union swung into action, producing a purge of public and private ﬁgures in the Soviet Union that was known within the USSR by the Russian word Yezhovshchina (derived from the name of Nikolai Yezhov, who was the head of the Secret Police), but which in Western countries came to be known as the Great Terror. The culmination of the Great Terror was a series of show trials in Moscow which resulted in the elimination of a range of so-called ‘Old Bolsheviks’ – associates of the revolutionary leader Lenin – who had, up to that point, been amongst the most prominent members of the regime: Grigorii Zinoviev, Lev Kamenev and ultimately Nikolai Bukharin. The prosecutor at those particular trials was a man called Andrei Vyshinskii, who was once described to me by somebody who had met him as being ‘a rat in human form’. In November 1945, Vyshinskii, by this time an oﬃcial in the Soviet Foreign Ministry, turned up in Nuremberg. He proved rather an embarrassment when he met with the judges of the International Military Tribunal (IMT) because he proposed a toast in Russian, to which the judges present responded by raising their glasses simultaneously, which, when translated for them, nearly made them choke on their drinks. What he had actually said was ‘[t]o the defendants, may their paths lead straight from the court-

1 2

Robert Conquest, Stalin and the Kirov Murder (1989). This was a singularly ﬁtting label, since it emerged in the late 1980s that Vyshinskii, while an oﬃcial of the Provisional Government in Russia in 1917, had actually ordered Lenin’s arrest as a German spy. See Stephen White, Gorbachev and After (1992) 84.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 3-11.

4

William Maley

house to the grave’, and some more sensitive judges on the bench felt it was not quite appropriate that they be seen making these kind of salutations when all the evidence still had to be brought before them. But this experience of the show trials of the 1930s is relevant to Nuremberg in another sense as well, because from 22 June 1941, when the Soviet Union was invaded by Germany in Operation Barbarossa, Stalin’s USSR became an ally of the other Western powers that were aligned against Nazi Germany. And so when the war in Europe ended in May 1945, this particular state (which did not have a history of an independent and credible judiciary or prosecutorial system) was a key player in the shaping of the justice mechanism by which the principal surviving members of the Nazi regime – who were by this time living in the Palace Hotel in Luxemburg, known colloquially as ‘Ashcan’ – were to be put on trial. One challenge, therefore, for the IMT to be credible was to ﬁnd ways of overcoming the burden that arose from the presence within the system of prosecution of a signiﬁcant element which had nothing like a liberal judicial tradition at work within it. This was paralleled by another kind of problem, namely that of the battering which German legal culture had experienced under the Nazi regime from 1933–45. This is historically quite interesting because there was a certain amount of legalism in Nazi Germany reﬂected in the preoccupation with detailed statutes on the part of people like former Interior Minister Wilhelm Frick, who was one of the principal defendants at Nuremberg and was subsequently hanged, and Hans Frank, the main legal advisor to the Nazi Party, who was also hanged at the end of the Trial. But at the same time as this preoccupation with legal detail persisted, there was nothing remotely like the rule of law in any meaningful sense because any notion of law as being above the oﬃcials of the state was utterly compromised by the Führerprinzip: the principle enunciated by people like Hans Frank which proposed that the will of the Führer (‘Leader’) overrode any other kind of legal principle and that as a result if Hitler willed something then it could legally be done. This then contributed to horrendous parodies of courts and legal processes such as one saw in the notorious hearings of the ‘People’s Court’, the Volksgerichtshof, under Roland Freisler – who surely would have been a major defendant himself before the IMT had he not been killed during an Allied air raid which occurred when his Court was sitting on 3 February 1945, an air raid which almost certainly saved the life of a prominent member of German Resistance, Fabian von Schlabrendorﬀ, who was actually before the Court when the bombers came over.

3 4 5

Telford Taylor, The Anatomy of the Nuremberg Trials (1993) 211. See Hans Buchheim, Totalitarian Rule: Its Nature and Consequences (1968) 19. See Fabian von Schlabrendorﬀ, The Secret War against Hitler (1994). Schlabrendorﬀ went on to serve as a judge of the Constitutional Court of the Federal Republic of Germany from 1967–75.

1 The Atmospherics of the Nuremberg Trial

5

So on the one hand the atmospherics of Nuremberg were shaped by the peculiarity of the Soviet contribution to the exercise, and on the other hand by the very real diﬃculties that the German legal profession had encountered as a result of the predations of the Nazi regime. Overcoming these required remarkable achievements on the part of both the individual members of a bench that was partly Soviet, and individual members of a bar that was partly German. As things turned out these problems were overcome and the story of how they were overcome is integrally connected to the nature of the Trial, the nature of the individuals who served in diﬀerent roles in the Trial, and the particular philosophy of the Trial which underpinned the key members of the bench. One of the most important factors at work was the serious intent that underpinned the holding of the Trial in the ﬁrst place. This was by no means universally shared in the heated atmosphere of post-war Europe. On the eve of Nuremberg, the trial in Oslo of the Norwegian collaborator Vidkun Quisling from 20 August – 10 September 1945 had achieved reasonable standards of probity, although the presiding judge, Erik Solem, did little in the initial stages to hide his antipathy towards the defendant. However, the trial in France a month later of the Vichy collaborator Pierre Laval could lay no such claim; according to one of Laval’s opponents, the trial was a ‘scandal beyond description’. The principal German defendants could have been treated similarly, and there were powerful voices, including that of Winston Churchill, that had argued in favour of summary executions as an appropriate punishment. Fortunately, this path was not taken. Instead, the Trial provided an opportunity for the painstaking accumulation of documentary evidence and oral and aﬃdavit testimony on the topic of the defendants’ actions. When Rudolf Hoess, the commandant of Auschwitz from 1940–43, testiﬁed at length about the mass murder over which he had presided, his horrifying words spoke to a far wider audience than simply the judges of the IMT. Choosing the judges of the IMT was a diﬃcult task. Each of the principal states involved (France, the United Kingdom, the United States and the Soviet Union) contributed two judges: one a voting judge and one a non-voting judge. The position of British judge was initially oﬀered to Sir Norman Birkett, who was a judge of the High Court in London and who was regarded as one of the greatest advocates of his age. Someone in the Foreign Oﬃce came to the conclusion that Birkett was not suﬃciently senior, and without his having been 6 7 8

See Hans Fredrik Dahl, Quisling: A Study in Treachery (1999) 383-409. Pastor Marc Boegner, quoted in Ian Ousby, Occupation: The Ordeal of France 19401944 (1997) 312. See Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946 (1971) Vol 11, 396–422. The importance of the Trial as a venue for ‘revelations about crimes against humanity’ was emphasised by Judith N. Shklar, Legalism (1964) 170.

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William Maley

informed and while he still believed that he was going to be the principal British judge, Lord Justice Lawrence – who was a member of the Court of Appeal and therefore senior to Birkett in the British judicial hierarchy – was oﬀered the position of voting judge. This was an aﬀront to Birkett because he regarded his legal skills as greatly exceeding those of Lord Justice Lawrence, who indeed was not widely seen as one of the great legal minds of his generation. But, in practice, it proved that the decision that had been made (albeit for the wrong reasons) was probably the right decision. Birkett himself was a forceful and restless personality, as his own diary kept during the hearings revealed; it was absolutely chock-a-block with complaints bemoaning the slow pace of the Trial and the lack of advocacy skills on the part of some of the defence counsel. It served as an outlet for burning frustration on the part of a quick-witted and quick-minded jurist. Lord Justice Lawrence was probably slightly slower, but he managed from the bench to create an impression of remorseless impartiality on the part of the Tribunal which quickly allayed the fears of the defence counsel that they were simply part of a farcical procedure in which there would be no opportunity properly to test the evidence that would be brought against their clients. Lord Justice Lawrence was imperturbable: unmovable once he came to the conclusion that justice required that the Trial be handled in a particular way, not the least bit reluctant to rule against submissions put to him by members of the prosecution team, and by virtue of sheer character a huge contributor to one key atmosphere of the Trial, namely an atmosphere of impartial justice. Amongst the prosecutors, Justice Robert Jackson, an Associate Justice of the Supreme Court of the United States, stood out. He was in Nuremberg throughout the period of the Trial. The principal British prosecutor, Sir Hartley Shawcross, was Attorney-General of England, and a consequence of this was that whilst he formally headed the British team, he spent a relatively small amount of time in Nuremberg – although he made the main opening and concluding statements on behalf of the British. The main British barrister was therefore Sir David Maxwell-Fyfe, who was later to become Lord Chancellor and to sit in the House of Lords as the Earl of Kilmuir. He was a very accomplished prosecutor on account of his consistently reliable mastery of the detail of the case, but was not a wordsmith with Justice Jackson’s gift of capturing the moral signiﬁcance of Nuremberg as an exercise and as an episode. When one returns to the speeches which Justice Jackson gave – putting aside his cross-examination, which was ordinary to put it mildly – one ﬁnds a set of formulations which speak to the present just as powerfully as they spoke when he uttered them before the Tribunal in Nuremberg. In his opening statement he captured one of the key strengths of the Nuremberg process: That four great nations, ﬂushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judg-

1 The Atmospherics of the Nuremberg Trial

7

ment of the law is one of the most signiﬁcant tributes that Power has ever paid to Reason.

These words almost deserve to be engraved in stone and put in various cabinet rooms in the world. The concluding passage of his opening statement also deserves repetition because again it captures the universality of the Trial: The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators. But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of ﬂesh, the exhaustion of resources and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian habitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. … Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you [the Tribunal] can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have ‘leave to live by no man’s leave, underneath the law’.

That remarkable passage, I think, sums up and captures why it was that Justice Jackson is still perhaps the outstanding ﬁgure of the Nuremberg Trial. He was not, in his design of the process, without ﬂaw, but he outshone all the other participants in the Trial in his sense of the fundamental ethical importance of what was being attempted. And his contribution also shows in his vision of the way in which this could contribute to a consolidation of key principles of international law that would ﬂing the words ‘never again’ at the kind of conduct, which over a period of months, was drawn to the horriﬁed attention of the world through the auspices of the IMT itself. The IMT would not have been able to conduct a credible Trial had it not also been for the contribution that was made by the defence counsel. Now of course, given the corruption of the legal profession during the Nazi period, ﬁnd9 10

Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946 (1971) Vol 2, 99. Ibid Vol 2, 155.

8

William Maley

ing defence counsel to defend defendants such as those who were on trial in this particular case was no easy task. There was little to be gained in appearing as defenders of the kinds of people who had been charged in the indictment, and indeed some of the defence counsel took on the responsibility only because their conception of the role of the advocate was to serve impartially no matter how obnoxious a particular client might appear to be. For their pains several were harassed as well as being traduced in the press that was re-emerging in Germany at the time. But fortunately, Lord Justice Lawrence and other members of the bench were assiduous in seeking to defend the position of the defence counsel and emphasising that they were actually oﬃcers of the court in performing their designated roles. There were a number of defence counsel who were themselves lawyers of great accomplishment and attainment. The counsel for Grand Admiral Doenitz, namely Otto Kranzbühler, was regarded as perhaps the most brilliant of the lawyers to appear, from the point of view of crafting a defence to criminal charges on the part of his client. And indeed he showed just that when he took the extremely imaginative step of presenting to US Admiral Chester W. Nimitz an interrogatory in which he extracted various items of information about American naval practice. He used the interrogatory not to argue that the Americans had committed war crimes, but rather to argue that what his client had done – which was paralleled by the actions of the American Admiral – was in accordance with the practice of war at sea at the time, and therefore was not criminal. This was an approach which some other lawyers might also have taken had they had his legal dexterity. For me the most remarkable of the German counsel was a professor of international law, Dr Hermann Jahrreiss, who appeared as the junior counsel for General Alfred Jodl. He was not a criminal lawyer by profession; he was an academic international lawyer, and he was tasked with making presentations on issues of law on behalf of all the defendants at the point in the Trial when the defence opened. He was widely regarded as having provided a contribution to the discussions of the Tribunal which was both legally polished but also morally equal to the challenge of the circumstances which the Tribunal presented. He made one observation during his presentation which greatly upset a number of the defendants; whilst arguing that the Nazi regime had been a sovereign power in Germany from 1933, he went on to state how painful this was to ‘one who has lived in the outer cold as though an outcast among his own people’. In doing so he captured the poignancy that surrounded the position in life, from 1933–45, of those who did have a commitment to the majesty of the law, and who themselves were appalled by what was being practised under people like Frick, and under tribunals like the Volksgerichtshof.

11

Ann Tusa and John Tusa, The Nuremberg Trial (1983) 415.

1 The Atmospherics of the Nuremberg Trial

9

Thus, through the contribution of ﬁgures such as Lord Justice Lawrence, Justice Jackson and Professor Jahrreiss, there was infused into the procedures of the Trial an air of impartial justice, which, had it not been present, would have condemned the Nuremberg Trial to be yet another example of the crude exercise of power by victors over vanquished. As it was, it was able to stand out as an example of the law at work. Another factor which of course contributed to the Trial’s enjoying this reputation was that three of the defendants under the indictment were ultimately acquitted: Hjalmar Schacht, the former President of the Reichsbank; Hans Fritzsche, who had been a propagandist, but who in a sense had been included in the indictment in the place of Propaganda Minister Josef Goebbels, who had committed suicide shortly after Hitler; and Franz von Papen, who had been a prominent ﬁgure of the Nazi regime (and according to William L. Shirer, contributed more than anyone else to the emergence of Hitler as Chancellor in 1933), but who had been largely oﬀ the scene during World War Two as German Ambassador to Turkey. The fact that acquittals could actually occur, which some had believed to be unthinkable at the point when the Trial began, signalled that the Trial was actually an appraisal of matters of law and evidence brought before the Tribunal by the prosecution and then challenged by the defence. It was indeed a bitter disappointment for Justice Jackson that Schacht was acquitted; everyone knew that he had set his heart on securing conviction of that particular ﬁgure. But nonetheless, the IMT came to the conclusion that the evidence simply could not sustain conviction under those circumstances. That is not to say that with hindsight every element of the Judgment stands up to close scrutiny. Judges, after all, are human. With hindsight, Albert Speer was very lucky to obtain only a ﬁxed term of imprisonment of 20 years even though he had been involved in the use of slave labour during the war. By contrast, Julius Streicher (who had been under eﬀective house arrest for most of the war) was executed even though his main contribution was to publish a revolting anti-Semitic publication called Der Stürmer, the circulation of which had dwindled to about 15 000 copies towards the end of the war. One suspects that this was partly because Speer, in perhaps a quite contrived fashion, presented himself as young, good-looking and forward-looking before the judges, whereas Streicher, by universal consent, was revolting beyond measure. Indeed the cross-examination of Streicher by the British barrister Mervyn Griﬃth-Jones was described as resembling somebody contemplating a disgusting mess on the pavement. That has troubled some lawyers in the intervening period, but generally speaking there is a sense amongst historians and amongst legal scholars who have examined the conclusions of the IMT that they were broadly well-founded.

12

Ibid Vol 2, 337.

10

William Maley

Oddly enough, those who have looked at the notes that were kept by one of the judges during the private deliberations on guilt and sentencing have come to the conclusion that despite what one might have expected, the two Soviet judges, I.T. Nikitchenko and A.F. Volchkov, made a greater eﬀort than their French counterparts actually to link their conclusions to speciﬁc evidence and speciﬁc principles of law. It was said of the principal French judge that he had a romantic commitment to convict everyone but not to execute anyone, and that working around this was rather diﬃcult for those who actually had to produce coherent penalties. Indeed some have gone so far as to say that the approach of the French Judge Henri Donnedieu de Vabres was quite diﬀerent from that of the other judges; the French approach was essentially instinctive whereas the others’ was evidence-based. Of course instinctive approaches to complex events are becoming more familiar in the times in which we are living and the faith-based approach is becoming more and more common, but judiciaries function better when such approaches are avoided. Is any of this of contemporary relevance? Of course, the Trial of the Major War Criminals was followed by a series of trials of other Nazi criminals at which the experiences of Nuremberg were directly pertinent, and also permeated the atmosphere surrounding the Eichmann Trial in Israel in 1961. But in my view, the atmosphere of Nuremberg also speaks to issues in our own time, and beyond the realm of international humanitarian law. It was striking that during his recent conﬁrmation hearings before the US Senate Judiciary Committee in September 2005, John Roberts, now the Chief Justice of the United States, expressed his esteem for Justice Jackson when he was called upon to discuss those ﬁgures in the judicial history of the United States who had inﬂuenced his own judicial thinking. And indeed Jackson, beyond what he did in Nuremberg, stands out as a judge whose relentless commitment to the principles of the law speaks to the times in which we are living. Recently in the Supreme Court of the United States in the case of Rasul v Bush, the majority quoted comments made by Justice Jackson in the case of Shaughnessy v United States ex rel Mezei, in which he talked about the exercise of power in a free country. Justice Jackson speciﬁcally said:

13 14

Taylor, above n 3, 565-6. See Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (2001). 15 See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1964).  Conﬁrmation Hearing on the Nomination of John G. Roberts, Jr to be Chief Justice of the United States, Hearing before the Sen Comm on the Judiciary, th Cong  () (statement of Justice John G. Roberts). 17 542 U.S. 466, 474 (2004). 18 345 U.S. 206, 218 (1953).

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11

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.

And that particular reaﬃrmation of a doctrine of the separation of powers speaks powerfully to the Nuremberg experiment which took the management of the principal accused out of the control of the Executives of the victorious states and put them before a tribunal in which their guilt would need to be individually established before convictions could be recorded and penalties meted out. This emphasis on the separation of powers is very important, particularly in the times in which we are living. We are passing through days in which we see torture being defended by key members of the Executive in key allies of Australia; we are living in circumstances in which in a number of diﬀerent countries, statutory measures are being contemplated to limit severely the exercise of habeas corpus; and perhaps in a deeper sense we are living in times in which, in defence of a self-deﬁned and self-declared war on terror, some of the key principles of the rule of law are under challenge. And of course, we are also living in times in which some powerful states have been reluctant to endorse the move towards institutionalised international criminal justice of the sort that the Statute of the International Criminal Court embodies. It therefore seems to me that we need to pose the question of whether we have come full circle from the principles which Justice Jackson enunciated in Nuremberg, and whether we need to rediscover his civilising message.

19

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, (entered into force 1 July 2002).

Chapter 2 The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-Conﬂict Reconstruction* Susanne Karstedt

I The European Experience and the Nuremberg Tribunal Looking back at the end of World War Two, the European experience of the second half of the 20th century emerges as an amazing success story. None of the contemporaries who witnessed the end of World War Two, and saw the sheer scale of European calamity, would have dared to predict that only a decade later Western European economies would be thriving, and a union amongst the former enemies would have been forged in the Western parts of the continent. If anything else, this unique European experience demonstrates that peace and reconciliation are possible, even after the most horriﬁc atrocities and unspeakable injustices, and even after two wars that had cost the lives of millions of European citizens within the lifetime of one generation, leaving nearly no family unaffected. It was also part of this experience that peace and reconciliation could be achieved within a comparably short timespan of the life of the peoples, including both the generation that had directly experienced the wars and atrocities as perpetrators or victims, as well as the generation of their children. Germany’s post-war history epitomises this success story in many ways. Germany succeeded in becoming a stable democracy, and today, the overwhelming majority of its population embraces its democratic institutions and democratic values just like in other European countries. Germany has achieved reconciliation with those peoples who had been the victims of German aggressive warfare, war crimes and genocide. Since the beginning of the 1950s successive German *

This chapter was originally prepared as a paper for presentation at the seminar ‘Nuremberg and Transitional Justice: Civilising Inﬂuence or Institutionalised Vengeance?’ of the Asia Paciﬁc Centre for Military Law, at Canberra, November 2005. I wish to express my gratitude to Professor Tim McCormack who gave generous support without which the research would not have been undertaken. I am very grateful to John Braithwaite, ANU, for presenting it to the audience, and for his helpful comments; to Oliver Krieg, who kindly provided surveys from the archives of Emnid, Bielefeld; and to Lena Kruckenberg, Bielefeld and Keele Universities, who assisted in the research.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 13-35.

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governments started a long and drawn-out process to compensate the victims of genocide, war crimes and mass atrocities that is still going on. At the end of the 1950s, a more systematic prosecution of war criminals and perpetrators of genocide was resumed by the Federal Republic of Germany that is now coming to an end. Since the 1990s, German governments and industry have started a process of compensating for forced labour in Germany during the war, and also a process of restitution of stolen and looted artwork to the families of the owners. This has by no means been an uncontroversial process, neither at home nor abroad, neither in national nor international discourse. However, the vast majority of Germans today agree that Germans perpetrated the most horrendous crime known in history, and accept the historical responsibility of Germany for the Holocaust. The European experience certainly gives reason for being, if not too optimistic, then at least not overly pessimistic about the future of regions rife with conﬂict and war. Europe’s history during the last ﬁve decades instils optimism for the chances of reconciliation, and the capability of individuals, communities and peoples to come to terms with their past and to rebuild their future. However, this process took two generations, more than half a century, and was all but fast, smooth and straightforward. This process started with a landmark and over-towering event that cast its shadow far into the 21st century. Until today, the Nuremberg Trial is engraved in European collective memory as a constitutional moment of retributive justice, which simultaneously (and somehow paradoxically) might have opened up the route for reconciliation. How does the Nuremberg Trial, before the International Military Tribunal (IMT), ﬁgure in the European narrative of peace and successful reconciliation? What was its speciﬁc contribution to the post-war European experience of reconciliation and peace? More importantly, if at all, how did this ‘monumental spectacle’ contribute to educating and profoundly changing the attitudes and values of the Germans, who as a people were deeply implicated in atrocities, war crimes and genocide, both as perpetrators and bystanders? How did the Nuremberg Trial contribute to the post-conﬂict situation in defeated Germany and the European countries which had suﬀered from the crimes that were to be adjudicated in Nuremberg? Is there something to learn from the overall ‘success story’ of Europe and the role of such tribunals like the IMT for international eﬀorts of peace-making and reconciliation in post-conﬂict situations all over the globe? In the course of the last 60 years the Nuremberg Trial has emerged as the powerful representation of the ‘real’ initiation of international criminal justice, and has since then become its icon and most successful model. All successor institutions of international criminal justice are based on it in one way or the other, and all refer to the Nuremberg Trial as their founding moment. However, the more recent tribunals like the International Criminal Tribunal for the former 1

Mark Osiel, Mass Atrocities. Collective Memory and the Law (1997) 3.

2 The Nuremberg Tribunal and German Society

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Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) have met ever increasing scepticism over whether they can deliver their pronounced task to do justice and thus to contribute to peace and reconciliation, not to speak of more encompassing tasks like state and democracy building. Recent research on the ICTY by John Hagan and his colleagues shows that the diﬀerent ethnic communities in the former Yugoslavia have increasingly withdrawn their support for the ICTY, aﬀecting, in particular, the legitimacy of international justice in the local context. It seems that presently international criminal justice needs to be sensitive to localised legal (and democratic) norms in order to elicit and command acceptance and trust, and to instil the feeling in the population that the moral order has to and can be restored. If international criminal justice today requires a ﬁrm grounding in the local context, and acceptance by groups of victims and perpetrators alike, was this also true for the Nuremberg Trial and the speciﬁc situation in which it was conducted? What kind of support could they muster in post-war Germany, and how were they reassessed in the long run? There are two profoundly conﬂicting views of how reconciliation and recovery can be achieved in a post-war or post-conﬂict situation, and actually were achieved in Europe. Both assign decisively diﬀerent roles to criminal justice in the process. Tony Judt argues that ‘without … collective amnesia Europe’s astonishing post-war recovery would not have been possible’. Collective amnesia allows victims as well as perpetrators and all those whose past does not easily ﬁt into either of these categories to forge new identities, to leave the past behind and reshape their memories, thus making reconciliation and immediate peace-building an easier task. In contrast, others contend that collective memory, not amnesia is the cornerstone of long-term reconciliation and peace keeping. Only if guilt is acknowledged, the truth uncovered and perpetrators made accountable in one way or the other, can long-term reconciliation and peace building be achieved. The European and German post-war experience does not lend itself to either of these conﬂicting perspectives but instead suggests that collective amnesia as well as collective memories and their recuperation each had a role in the process that oscillated and alternated between these two extremes. Whilst collective amnesia was a deﬁning feature of the later post-war years and the 1950s, not only in Germany but all over Europe, since the early 1960s collective memories were slowly and painfully retrieved in a new engagement with the past. They have 

3 4

John Hagan and Sanja Kutnjak Ivkovic, ‘War Crimes, Democracy and the Rule of Law in Belgrade, the Former Yugoslavia and Beyond’ (2006) 605 Democracy, Crime and Justice: The Annals of the American Academy of Political and Social Science 130; Sanja Kutnjak Ivkovic and John Hagan, ‘The Politics of Punishment and the Siege of Sarajevo: Toward a Conﬂict Theory of Perceived International (In)Justice’ (2006) 40 Law and Society Review 369. Tony Judt, Postwar: A History of Europe Since 1945 (2005) 61. See, eg, Susanne Karstedt (ed), Legal Institutions and Collective Memories (forthcoming 2008); Thomas Scheﬀ, Bloody Revenge: Emotions, Nationalism and War (1994).

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Susanne Karstedt

been consistently recovered in a process in which criminal trials now being conducted locally and nationally, had a most prominent role. From then onwards the Nuremberg Trial as the ultimate and deﬁning model was evoked again and again in local and national justice until ﬁnally at the end of the century its successors emerged on the international scene. Accordingly, the role and perception of the Nuremberg Trial ‘on the ground’ and locally changed with the re-conﬁguration of local and national, as well as international justice. International tribunals as well as local criminal trials have a decisive role in generating both collective amnesia and collective memories. They derive this role from the fact that they are intended as ‘monumental spectacles’ which draw the line between an unspeakable past and the future. As such they are designed to educate the public, to disseminate the truth and to collect judicial and historical evidence on what happened. In fact it is their purpose to send a strong message to the local populations of perpetrators and victims alike. They promote collective amnesia in that they draw ﬁnal strokes and ‘close the books’ by deﬁning guilt and punishing the perpetrators. Punishing the few implies that they exempt the many bystanders or even those who were implicated in minor perpetrations from admitting to their share of guilt in mass atrocities. By closing the ﬁles they lay the ground for ensuing amnesties, including adjudicated perpetrators. However, the setting of the criminal trial equally lends itself to shaping collective memories for the future. The setting of a trial is designed to send strong messages and images about guilt and morality that leave an imprint on collective memories. In dealing with the atrocities of the past, trials function as historical archives by collecting and preserving evidence. Legal truths as uncovered by legal procedures render a speciﬁc credibility that other procedures cannot muster. The legal form and procedural legality provide morally powerful instruments for assigning criminal liability to individuals and responsibility to states. The sword of Justitia, it seems, is double-edged in tribunals like the IMT and its successors: they are seen at the roots of collective amnesia, and equally as seedbeds of collective memories. Given the importance presently assigned to local support for international justice, I will trace the perceptions and assessment of the Nuremberg Trial by the German public (West Germany) through three stages covering a period of about 30 years. The ﬁrst stage is the immediate post-war period during and after the Nuremberg Trial. It was the uniqueness of the Nuremberg Trial that contributed to its immediate success with the German population immediately after the war. It was unique both in terms of how it was conducted, and in terms of the post-conﬂict situation in which it took place. However, these speciﬁc characteristics actually contributed to its oblivion during 5

Christine Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ (2001) 95 American Journal of International Law 335; Susanne Karstedt, ‘Introduction: Legal Institutions and Collective Memories’ in Susanne Karstedt (ed), Legal Institutions and Collective Memories (forthcoming 2008).

2 The Nuremberg Tribunal and German Society

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the ﬁrst post-war decade. Starting in the 1960s, its impact as a landmark event was slowly revived in what can be called the longue durée of recovering the truth and constructing the moral narrative of the Holocaust. It was in particular the Eichmann Trial in Israel, and the Auschwitz and Majdanek Trials in Germany that brought the Nuremberg Trial back into German collective memory, and decisively shaped its image and deﬁned its importance for German identity today. My analysis of the ﬁrst phase is based on the results from the numerous surveys that were conducted in the zone occupied by the Americans (mainly the south and south-west of Germany and Bremen in the north). The Oﬃce of the Military Government of the United States (OMGUS) was responsible for the research on German public opinion and frequently conducted surveys on a wide range of topics between 1945–49. The Americans in particular were anxious to ﬁnd out how the Germans perceived and reacted to the quite audacious legal experiment of the IMT, the prosecution of war crimes and the denaziﬁcation procedures, and starting in 1945 they devoted a sequence of surveys to these topics. Survey data on the Eichmann and Auschwitz Trials, as well as general attitudes towards the Nazi regime, were collected from published and archival reports of the major public opinion and market research institutes (Allensbach, DIVO, Emnid) covering the period from the 1950s–90s in Western Germany, the then Federal Republic of Germany. II The Nuremberg Tribunal and the German Public 1945–49 The IMT was indeed conducted as a ‘monumental spectacle’ of truth and justice with the clear objective not only to bring the perpetrators to justice but to educate the German public. Telford Taylor, US chief of councel for War crimes, expressed these educational objectives in his opening speech in one of the follow-up trials in Nuremberg. His statement makes perfectly clear that as justice becomes impossible to achieve, truth becomes the foremost objective. This implies two types of truth, truth as ‘recovery’ of facts, and truth as ‘clariﬁcation’, ie as moral education and moral narrative. 6 7 8 9

10 11

See also Judt, above n 3. Attorney General of Israel v Eichmann, 36 ILR 277 ( Jm D.C. 1961) (S.Ct. 1962) (‘Eichmann Trial’). Frankfurt Jury Court, Case 50/4 Ks 2/63 (‘Auschwitz Trial’); District Court LG Duesseldorf 8KS 1/75 (‘Majdanek Trial’). Anna J. Merritt and Richard L. Merritt, Public Opinion in Occupied Germany (1970); Susanne Karstedt, ‘Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedure and Justice’ (1998) 20 Law and Policy 15. For an in-depth analysis, see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 9. Stanley Cohen, ‘Unspeakable Memories and Commensurable Laws’ in Susanne Karstedt (ed), Legal Institutions and Collective Memories (forthcoming 2008).

18

Susanne Karstedt The mere punishment of the defendants … can never redress the terrible injuries the Nazis visited on these unfortunate people. For them it is far more important that these incredible events be established by clear and public proof, so that no one can doubt that they were fact and not fable: and that this Court … stamp these acts, and the ideas which engendered them, as barbarous and criminal.

The Nuremberg Trial was unique in many ways and its environment diﬀered from post-conﬂict situations as we experience them today, setting it apart from its successors in decisive ways. First, the Allied Forces conducted the investigation and prosecution without any involvement of Germans except for the defence and as witnesses. This always made it vulnerable to accusations of being victors’ justice. Second, the defendants represented a carefully selected group from party, military and administrative elites in order to demonstrate the implication of the state, party and military machinery. The Nuremberg Trial was designed to achieve symbolic justice for all victims by punishing a small number of members of the highest leadership echelon. Third – and this sets the Nuremberg Trial apart from contemporary international tribunals – there were no victims present, not even representatives who could speak on their behalf. Most of the victims had perished in the Holocaust and the war, their families had ﬂed to other continents and countries, and those who had survived either lived abroad or desperately tried to get home. Consequently, the Nuremberg Trial was a trial that only gave voice to the perpetrators, and most of the few witnesses were deeply implicated as perpetrators awaiting their own trials in other countries. Similarly, the audience addressed by the Nuremberg Trial nearly exclusively comprised the people of the perpetrators, and excluded the people of the victims. With this situation in mind, the proceedings of the IMT had been deliberately based on documentary evidence. This evidence spoke with a terrifying and powerful voice of ‘unspeakable truths’, however, it was the voice of the perpetrators, and not that of the victims. In the ‘audience’ of the Trial the Germans were as perpetrators ‘amongst themselves’, and they could avoid any confrontations with victims in their everyday life. This post-conﬂict situation decisively diﬀered from those in the former Yugoslavia, South Africa, East Timor and Rwanda, and the diﬀerence can hardly be overestimated. It took nearly 20 years until the German public would be confronted with the voice of victims in their own country, in the Auschwitz Trial. Both this and the Eichmann Trial in Israel can be deemed as a watershed experience for the German public, mostly for the younger generation not directly implicated in the atrocities. Finally, the Nuremberg Trial was only one of the numerous trials that were conducted accross Europe, where the crimes had actually taken place (eg the commander of Auschwitz, Höss was tried in Poland and executed on the site of the 12

US v Karl Brandt et al, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council No 10 (1947) Vol I (‘The Medical Case’).

2 The Nuremberg Tribunal and German Society

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camp). In addition, all Allies conducted a series of war crime trials in Germany, where their own soldiers had been victims of war crimes as prisoners of war. The IMT itself had been conceived as the ﬁrst of a series of trials to be conducted by the Allied Forces, which in the end were conducted only by the Americans. The Nuremberg Trial laid the foundation for, and was followed by, a sweeping process of denaziﬁcation, which implicated all Germans. The Nuremberg Trial was without doubt the most outstanding and visible amongst the trials, and the one that deﬁned the whole process. However, public opinion on, and support for, the Nuremberg Trial was situated in the more complex post-conﬂict situation, which contributed in itself to how the Nuremberg Trial was perceived by the Germans and shaped their collective memories and national identity for the years to come. A Was the IMT Seen as Victor’s Justice? The surveys did not address this question directly, but several indicators of procedural justice and ratings of the ﬁnal verdicts can be used to answer this question. According to these indicators, the vast majority – between 80 per cent and 75 per cent – of Germans rated the Trial as fair from the beginning and did not signiﬁcantly change their minds. Already at the start of the Trial, 70 per cent agreed that all defendants were guilty. The majority (60 per cent) rated none of the ﬁnal verdicts as ‘too harsh’ and 55 per cent found them ‘just’. The German public obviously found ‘victors’ justice’ just and fair, and supported the way it was done as well as the ﬁnal outcome.

13

14

Poland v Ubersturmbannführer Rudolf Franz Ferdinand Höss (Warsaw, 11-29 March 1947) Case No 38 in United Nations War Crimes Commissions, Law Reports of Trials of War Criminals (1948) Vol VII, 11. For a detailed account, see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 9.

Susanne Karstedt

20

Figure 1: Conduct of the Nürnberg Trial ‘Do you think the Nürnberg Trial is being conducted justly’? 100 %

80

60

▀ no opinion ▀ no ▀ yes

40

20

0 Oct. 1946

Aug. 1946

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Source: OMGUS Report No. 60, Trends in German Public Opinion (April 1947) As we have no direct evidence of how it was perceived that the Allies and not the Germans conducted the Trial, we have to rely on evidence from surveys on the denaziﬁcation procedures, which started in 1946. Where the Nuremberg Trial had sent the message that there was an elite guilty of the most atrocious crimes, denaziﬁcation brought the message of involvement and guilt far closer to home, and implicated ordinary Germans. Presumably for these reasons, denaziﬁcation received much lower and decreasing fairness ratings than the Nuremberg Trial. There was, however, overwhelming support for a leading and at least supervisory role of the Americans in these procedures, which were now mainly left to the Germans under supervision by the Americans. Only 13 per cent agreed that it was an advantage that they were conducted by Germans, and 40 per cent supported control by the Americans, which the law actually provided for. Amongst those who objected to the newly established denaziﬁcation procedures, only a minority of nine per cent wanted them to be conducted by the Germans alone, and the majority wanted them to be either exclusively conducted by the Americans (37 per cent), or by Americans with consultation from the Germans (63 per cent). 15 16

Ibid. Ibid.

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This leaves little doubt that ‘victor’s justice’ was accepted and even preferred. Public opinion might have been shaped by feelings similar to those that were expressed in hindsight by Jutta Limbach, former President (Chief Justice) of the Federal Constitutional Court 60 years later. She argued that with the IMT the Allies had relieved the emerging and still weak democratic forces from the ‘highly explosive task’ of prosecuting the former Nazi leadership. ‘Thus they [the Allies] withdrew a highly politicised and contentious issue, namely on the basis of which law a people can prosecute and bring to trial its own leadership and “state murderers”, from a dangerous political debate’. This view was allegedly shared by the ﬁrst Chancellor of the Federal Republic of Germany, Konrad Adenauer; reportedly, he secretly asked US High Commissioner General McCloy to proceed with the execution of the death sentences for war criminals so that the German Government ‘did not need to do it’. As much as this might have helped to establish democracy in the post-conﬂict situation, it might also have contributed to the fact that Germans felt relieved from the responsibility for the prosecution of the atrocities in many ways, and to the ensuing collective amnesia. These feelings presumably were responsible for the very slow start to further prosecutions for war crimes and genocide in Germany in the late 1950s. B Receiving the Message: Truth as Recovery and Clariﬁcation Notwithstanding their intention to re-educate the Germans and the role they had assigned to the IMT in this process, the Allies took a cautious approach in setting it up as a ‘monumental spectacle’. Fearing that the defendants would use the Trial as a platform for Nazi propaganda and to present themselves as martyrs, they carefully selected media representatives, and only a handful of German journalists were admitted. With newspapers being distributed only two or three times a week, public information was restricted to a considerable degree, and cannot be compared to the level of media coverage such international tribunals receive today. As I will show these fears were fully unjustiﬁed, and despite these restrictions the message was received by the public. In deﬁance of these restrictions, the Nuremberg Trial attracted a huge amount of interest among the German public and could keep that high level of interest nearly throughout its duration until a year later. Between 65 and 80 per cent of Germans had read about the Nuremberg Trial, and a similar proportion rated the newspaper reports about war crimes and crimes against humanity as trustworthy. Knowledge about war crimes was clearly spread by the Trial, and increased during its course from 67 to 85 per cent. Germans learned in particular 17 18

Matthias Arning, ‘Erbschaft dieser ganz ﬁnsteren Zeit’, Frankfurter Rundschau (Frankfurt, Germany). Ulrich Herbert, Best. Biographische Studien über Radikalismus, Weltanschauung und Vernunft 1903-1989 (1996).

Susanne Karstedt

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about the death and concentration camps outside Germany, and knowledge of these increased from 29 to 57 per cent in the course of the Nuremberg Trial. It is hard to assess whether the newspaper reports also encouraged eye witnesses to talk to family members and conﬁrm these reports. A recent study on the formation and transmission of collective memories in German families suggests that this was not the case. Figure 2: Information about trials, knowledge about war crimes and assessment on trials 100 %

○

conduct: just readership: yes ■ reliability: trustworthy ▲

80

85%

67% 60

40

20 Knowledge about war crimes from trials

Oct. 1946

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Source: OMGUS Report No. 60, Trends in German Public Opinion (April 1947), OMGUS Report No. 16, German Attitudes Toward the Nuremberg Trials (August 1946) 1. The Nuremberg Trial provided both the truth as ‘recovery’ of facts and as moral clariﬁcation. Sixty-eight per cent agreed that crimes against humanity were committed by the Germans. Eighty-ﬁve per cent now thought it wrong ‘to force foreign workers to work in German factories’, one of the crimes nearly every German had witnessed and experienced. Ninety-four per cent agreed that war criminals should be brought to justice. Charges of aggressive war against most of the defendants at the Nuremberg Trial were, however, only supported by a pro19 20

Harald Welzer, Sabine Moller and Karoline Tschuggnall, Opa war kein Nazi. Nationalsozialismus und Holocaust im Familiengedächtnis (2002). Adapted and translated from Susanne Karstedt, ‘Die doppelte Vergangenheitsbewa eltigung der Deutschen: Die Verfahren im Urteil der Oeﬀentlichkeit nach 1945 und 1989’ (1996) 17 Zeitschrift fuer Rechtssoziologie 58.

2 The Nuremberg Tribunal and German Society

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portion of the population between 47 and 67 per cent during the course of the Trial. Public opinion was highly divided on charges against agencies of the Nazi Party, the state and the military. A number of these bodies had been deﬁned as criminal organisations in the Nuremberg Charter and the organisations and their leadership were brought to justice in the Nuremberg Trial and followup trials. Charges against the Gestapo, the SS, the Reich Cabinet and the Leadership Corps of the Nazi Party found most widespread support amongst the German public, because these organisations were held responsible for the disaster. However, the public wanted to exempt the SA, the so-called Storm Troopers which after 1934 had become a mass organisation with millions of members mainly engaged in sports, marches and festivities. Similarly, the public did not want to include the Army, its High Command or the General Staﬀ, because most adults were involved in the Army in one way or the other. Though never for a majority, the Nuremberg Trial instilled a sense of collective guilt in the Germans. When the Trial had come to an end in December 1946, after the ﬁnal verdicts and the executions, 30 per cent of Germans were willing to accept such a collective guilt and moral responsibility for the war and its atrocities, which is the highest proportion ever recorded.

21

22

23

Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279, art 9 (‘Nurember Charter’). Not all of these organisations deﬁned as ‘criminal’ were indicted by the Nuremberg Tribunal, but some of them, like the Foreign Oﬃce and the Ministry of Home Aﬀairs, were indicted in the follow-up trials conducted at Nuremberg under the auspices of the Americans. However, the deﬁnition of these organisations as criminal laid the ground for the denaziﬁcation procedures because membership in one of these organisations was suﬃcient to entail sanctions. For details, see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 9. The SA (Storm Troopers) had originally been founded as a security guard of the Party, and before Hitler seized power in 1933 the organisation had been involved in street violence and anti-Semitic actions. In 1934 the SA was violently removed from power and became one of the mass organisations of the totalitarian state. In contrast to its successor organisation, the SS, it was not involved as an organisation in atrocities after that date, with the exception of the 1938 pogrom against the Jewish population.

Susanne Karstedt

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Figure 3: Assessment of the trials, knowledge about war crimes, and acceptance of war guilt 100 % ♦ German population guilty □ conduct: just

85%

80 67% 60

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20 Knowledge about war crimes from trials

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Source: OMGUS Report No. 60, Trends in German Public Opinion (April 1947), OMGUS Report No. 16, German Attitudes Toward the Nuremberg Trials (August 1946) 1. The moral message of the Nuremberg Trial, however, was by no way unambiguous, and the proceedings of the IMT also supported a sense of victimisation amongst the German public. Ninety-one per cent agreed that ‘Hitler and his government were criminals and misled the German people’. Several characteristics of the Nuremberg Trial made it easy for the Germans to perceive of themselves as victims. First, only representatives from the highest echelons were on trial, thus leading the public to put all the blame for the crimes on the elites. Second, the IMT itself had revealed the plans of the Nazis to implement scorched earth policies in Germany at the end of the war, thus conﬁrming the belief that the Germans had been held victims of their own leadership. Finally, all voices of the actual victims were silenced and excluded, clearly setting the IMT at Nuremberg apart from the International Criminal Court in The Hague, which gives the victims a recognised participation and voice in the proceedings. 24 25 26

Adapted and translated from Karstedt, ‘Die doppelte Vergangenheitsbewaeltigung der Deutschen’, above n 20. For a detailed account see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 9. Interview with Hans-Peter Kaul, Judge of the International Criminal Court, ‘Das Recht der Opfer: Welchen Einﬂuss haben die Nürnberger Prozesse auf das heutige

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C Which Unique Features Made the Nuremberg Trial a Success with the Contemporary German Public? It comes as a paradox that the ambiguity of the message of the Nuremberg Trial might have contributed to its widespread support, and also to the adoption of democracy and reconciliation. In a much less straightforward way than it would be morally desirable, the IMT clearly instigated a public re-evaluation of the Hitler dictatorship and the Nazi regime. This is evident in the responses to the question: which lessons had been learned from the IMT? The largest group (30 per cent) named the dangers of dictatorship and the necessity of maintaining peace. The Nuremberg Trial in particular succeeded in dissolving allegiances with the Nazi leadership and state machinery. This was achieved in a number of ways. The fact that only a small number of representatives of the highest echelons were put to trial and were highly visible as criminals, allowed the German public to put all blame for the disaster on this small group, and they could feel themselves exonerated. In addition, the Germans were by themselves as the people of perpetrators, with nearly no victims present. Thus, taking the role of the victim and of those who had been misled, oﬀered itself as an easy way out of guilt and collective responsibility. It comes as a paradox that with the IMT the victorious Allies provided the Germans with the opportunity to take vicarious revenge on the Nazi leadership. Even if originally adopted for the wrong reasons, the dissolution of allegiance with the Nazi regime and ideology was never reverted for the vast majority of Germans in the years to come. A major contribution to the success of the IMT was the fact that Germans accepted and embraced victors’ justice. This did not equally apply to all victors; the Americans were trusted most in conducting such trials in a fair way, whilst mistrust of Russians was higher as is indicated by a decrease of fairness ratings of the IMT procedures when the Russians took over the lead in the prosecution in February/March 1946 (see ﬁgure 1). The fact that the Nuremberg Tribunal did not include Germans at all was presumably not seen as a shortcoming, but as an asset. This is an extremely encouraging message for contemporary tribunals, international justice, international courts or mixed courts, as well as for the inclusion of international supervisors or judges in national courts in post-conﬂict situations. The IMT has proven that international criminal justice can work and is accepted on the ground because it relieves the post-conﬂict situation and its ﬂagging institutions from a contentious and highly explosive task. III

Collective Amnesia 1949–60

The IMT itself, the series of simultaneous and follow-up trials, as well as the denaziﬁcation procedures in Germany, demonstrated that the criminal justice Menschenrecht?’, Kulturinterview (Deutschland Radio), 20 July 2005.

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model had emerged as the main instrument of the Allies in the post-war situation in Germany, as well as in other European countries after episodes of ‘wild justice’. It is an often neglected and perhaps unduly censured fact that amnesties were an integral, though unplanned part of the model, and quite sweeping amnesties already started during the occupation. In this process the Russians took a lead in their zone, while the Americans were most reluctant. However, young people were soon exempt from denaziﬁcation procedures, and further amnesties were introduced ad hoc when it had become obvious that denaziﬁcation was a nearly impossible task. The denaziﬁcation courts themselves were extremely generous in classifying people as ‘followers’ or even as ‘exonerated’, which entailed no or minor consequences and amounted to a kind of covert amnesty. Thus the amnesties demonstrated the failures of the procedures more than they were seen as legitimate in themselves. The mixture of harsh justice and ad hoc amnesties shaped public opinion and assessment of the Nuremberg Trial for the decade to come, and also impacted on criminal justice policies and the prosecution of war crimes and genocide in Germany. After the foundation of the Federal Republic of Germany in 1949, the mood of the public turned to closing the books and putting the past to rest. First Chancellor Konrad Adenauer expressed this mood when publicly asking for a halt of further scrutinising the past of high-ranking oﬃcials and civil servants, but simultaneously embarking on a policy of reconciliation with the West and re-compensation for Israel and the Jewish population. This encouraged networks of former high-ranking Nazi oﬃcials and SS oﬃcers to promote blanket amnesties and a general pardon, which was not realised because of the adamant opposition of the Americans and Adenauer himself. However, those who had been ousted from oﬃce by denaziﬁcation, were allowed to resume their oﬃces (with the exception of high-ranking SS oﬃcers) or claim their pensions by a Bill passed in Parliament in the early 1950s. This amounted to a blanket amnesty for all those who had undergone denaziﬁcation procedures. Other amnesties ensured indem27 28

29

30

Klaus-Dieter Henke and Hans Wolter (eds), Politische Saeuberung in Europa (1991); Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (2004). For a detailed account see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 9; Lutz Niethammer, Entnaziﬁzierung in Bayern. Saeuberung und Rehabilitierung unter amerikanischer Besatzung (1972). The Federal Republic of Germany could not prosecute for genocide, since this crime was included in the penal code only in 1955, after Germany had become a signatory, in 1954, to the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). Therefore, perpetrators had to be indicted for murder; this was the reason why the statute of limitation for murder was ﬁnally abolished in 1979. See German Penal Code (Strafgesetzbuch, StGB), 13 November 1998, ss 220a (Genocide), 78 (Period of Limitation) (English text available at ). Herbert, above n 18, 501.

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nity for violence and killings at the very end of the war if the acts had been committed in the belief that they had been ordered as a duty, which again amounted to a blanket amnesty for atrocities and war crimes. Even in the 1960s, legal provisions amounting to a stealthy amnesty for atrocities were slipped in under the cover of other laws. Most of the war criminals who had been sentenced before 1949, were released after serving only a fraction of their sentences with the exception of most of those who had been tried before the Nuremberg Tribunal. Not surprisingly, German politicians and criminal justice oﬃcials were very reluctant to resume the prosecution of war criminals and those who had been involved in the Holocaust. In 1956, a major trial of the members of SS Task Forces and Police Reserve Battalions indicted for war crimes and genocide in Poland and Russia went by without notice from the public, the media and politicians. Amnesties were more or less completed by the mid 1950s, not only in Germany but also in the European countries that had been occupied by the Nazi regime. They reﬂected the general mood of collective amnesia that seemed to take over. Polls from the late 1940s and throughout the 1950s that were conducted by West German survey institutes give evidence of this thorough swing in public opinion with regard to the trials and the lessons to be drawn from them. In 31 32 33

34

Joachim Perels, Das juristische Erbe des ‘Dritten Reiches’ (1999) 207. Ibid 211. Einsatzgruppe C Albert Harl, ZStl 207 AR-Z 15/58; Einsatzgruppe D H.S., ZStL 213 AR 1902/66. This was the trial, on which major recent works on the Holocaust are based, like Christopher Browning, Ordinary Men: Police Battalion 101 and the Final Solution in Poland (1992); Daniel J. Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (1996); Welzer, Moller and Tschuggnall, above n 19. This demonstrates how important such trials are for the collective memory in the long run. It has been argued that the positive ratings of the Nuremberg Trial from 1945–49 result from responses being heavily biased by social desirability and by what respondents thought the Allies expected. This was exacerbated by the fact that the Germans had lived for 12 years under a totalitarian regime. The Americans themselves tested their polls for social desirability and found little impact: see Karstedt, ‘Coming to Terms with the Past in Germany’, above n 19. I think that the evidence corroborates the conclusion that the surveys give a correct representation of public opinion from 1945–49. First, diﬀerent procedures were rated signiﬁcantly diﬀerently, and assessments changed considerably over time, tending towards a more negative rating in the case of denaziﬁcation. Second, eyewitness reports, in particular from journalists, conﬁrm the general mood towards the IMT as expressed in the surveys: see Karstedt, ‘Die doppelte Vergangenheitsbewaeltigung der Deutschen’, above n 20). Third, in light of this, the fact that from 1950 onwards reported public opinion changed in line with a general and Europe-wide tendency does not lend itself to the conclusion that actually there was no change, only less social desirability. Similarly, the swing in public opinion in the 1960s back to attitudes more supportive of criminal prosecution is also in line with decisive events, a general change in the political and cultural environment, and a new generation entering social and political life.

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September 1952, those who thought that it was unjust to keep the Nuremberg defendants (Dönitz, Schirach, Hess, Speer) in prison, were outnumbering those who thought it justiﬁed in all cases. However, a year earlier in 1951, when asked which they deemed the biggest mistake of the Allied forces in Germany during the occupation only a minority of 9 per cent named the trials against war criminals, but another 14 per cent named the ‘defamation and unjustiﬁed accusations against the Germans’. In sum, about a quarter of the population in hindsight disapproved of the trials and the denaziﬁcation procedures, however the overwhelming majority did not count it among the major ﬂaws of occupational policies. In 1953, the majority (78 per cent) felt that they were not even ‘morally implicated’ (which was a much less strong accusation than that of collective guilt) in the genocide of the Jewish population of Europe. Fifty-ﬁve per cent thought that German soldiers could not be reproached for any wrongdoing in the war. In 1954, about two-thirds thought that the number of victims in the Holocaust, for which the survey question had provided an estimate of about ﬁve million, was either a little bit or strongly exaggerated, and only a third deemed it correct or too small Changes in opinion on denaziﬁcation showed a slight increase in positive ratings between 1948–53, however a considerable decrease in the group who deemed it necessary, but wrongly conducted (with the highest increase in the group that admitted to no opinion). Nonetheless, the dissolution of allegiance with the Nazi regime and its leaders produced by the Nuremberg Trial still held, and the public had a low opinion of the inner circle of Nazi leaders (Hitler, Goering, Goebbels, Himmler), but was divided on other leaders. In the mid 1950s the message taken away from the Nuremberg Trial had materialised in a collective consciousness that attributed solely to Hitler and his inner circle all responsibilities for the crimes of the Nazi regime. However, in 1960, public opinion was opposed to giving high oﬃce to committed Nazis, and to those who had been highly implicated in preparing the Holocaust or in collaborating with the Gestapo. The strength of the message of the IMT is further evident in a 1958 poll, which asked the public if war crimi35 36 37 38 39 40 41 42

Elisabeth Noelle and Peter E. Neumann (eds), Jahrbuch der oeﬀentlichen Meinung 1947-1955 (1956) 202. Ibid 140. Emnid Institut fuer Marktforschung und Marktbeobachtung, Sind wir Demokraten? (1949). Noelle and Neumann (1956), above n 35, 137. Emnid, Zum Problem des Antisemitismus in der Bunderepublik (September/October 1954). Noelle and Neumann (1956), above n 35, 142. Ibid 135. Elisabeth Noelle and Peter E. Neumann (eds), Jahrbuch der oeﬀentlichen Meinung 1958-1964 (1965) 223-4.

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nals should still be prosecuted and punished. A majority of 54 per cent opted for punishment in contrast to 34 per cent who were in favour of closing the books on the past. In addition, Adenauer’s future policy of restitution and recompensation to Israel and the Jewish population could count on support by a majority: in 1949, 20 per cent found the claims fully, and 45 per cent partially, justiﬁed. It is hard to believe that the public would have come to such a judgment without the Nuremberg Trial. It is important to note that even during the period of collective amnesia the better educated and those in higher positions or in the professions were generally more supportive of prosecution as well as of reconciliation. These groups were signiﬁcantly more inclined to accept a kind of moral guilt for the Holocaust; they more often thought the number of Holocaust victims to be correct; they were more supportive of recompensation and they were opposed to diﬀerent treatment of citizens ‘of diﬀerent race’. This tendency became consistently stronger in the following decade. It somehow deﬁes the notion that the elites of the young democracy were still fully adhering to Nazi ideology, but to the contrary, it points to the importance of emerging and new elites in the process of doing justice for the past and promoting reconciliation. It is only partially true that the 1950s was a period of collective amnesia. It certainly was a period of amnesties, which in a way contributed to reconciliation and to the strengthening of the young democracy in Germany. However, some of the messages of the IMT were never lost, such as the thorough de-legitimisation of the Nazi elite, and that war criminals have to be brought to trial. This message had been mainly accepted by the elites, and they transmitted it to the decades to follow. IV

Regaining Collective Memories 1960–80: The Impact of Major Trials

At the beginning of the 1960s, a process of regaining collective memories started that has not yet come to an end. The process was driven by three important trials that thoroughly and forever changed the way Germans could look back at their past: the 1961 Eichmann Trial in Jerusalem; and the 1963–65 Auschwitz, and 1975– 81 Majdanek Trials in Germany. The signiﬁcance of the trials was mostly due to the fact that they made the victims visible and their voices heard, a decisive difference to the IMT and all other follow-up trials at Nuremberg. All trials evoked anew the unique setting, procedures and achievements of the Nuremberg Trial and put it ﬁrmly back into the public consciousness. Preparations for resuming the prosecution of war criminals and those involved in mass killings had started in 1958 with the inauguration of the Central 43 44 45

Ibid 221. Emnid, above n 39. Ibid 8-10.

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Oﬃce for the Investigation of National Socialist Crimes (Zentrale Stelle der Landesjustizverwaltungen zur Aufklaerung nationalsozialistischer Verbrechen), which was very much owed to the relentless eﬀorts of a handful of individuals. It had become evident in the 1956–58 Trial of the so-called SS Task Forces (Einsatzgruppen), who were mainly responsible for the genocide in the East, that many of the most atrocious crimes had not been brought to justice and that a concerted eﬀort to do so was necessary. At the same time other organisations sprang up worldwide with the purpose of bringing Nazi perpetrators to justice and of putting pressure on Germany, not the least in the communist German Democratic Republic. The circumstances of the Eichmann Trial in Jerusalem certainly evoked the model of the Nuremberg Tribunal and a Gallup poll in Great Britain, the US, Switzerland and Germany (West) showed that the IMT had left its mark. About one-third in all countries opted for extradition to an international tribunal, which was not a realistic option at that time. Germany (32 per cent) did not diﬀer in this from the US or Great Britain (32 per cent and 31 per cent respectively, Switzerland 36 per cent), however Germany clearly deviated from the other countries because this was if not the majority, the most common opinion. Twenty-ﬁve per cent of Germans preferred a trial in Germany in contrast to the majority in the other countries who supported the trial taking place in Israel. Another poll shows that preference for Germany as the site of the trial had two very diﬀerent reasons on which public opinion was rather divided: on the one hand, this would demonstrate that Germany was willing to punish the perpetrators (54 per cent), on the other hand, it would be less feasible to exploit the trial for ‘anti-German propaganda’ (45 per cent). Indeed, German public opinion did not welcome the fact that the trial reminded the world about the ‘horrors of national socialist concentration camps’, while a majority in the other countries welcomed this, and Germans found the ﬁnal confrontation with the victims’ voices hard to bear. Fifty-three per cent preferred that all was forgotten, and 51 per cent feared that Eichmann would symbolise Germany in the future and hurt its reputation – which was not unjustiﬁed. A majority (72 per cent) were in favour of prosecution and punishment, and also of severe sentences, either the death penalty or life imprisonment. The Eichmann Trial gave the victims of the Holocaust a voice and identity. However, the Auschwitz Trial in Frankfurt from 1963–65 was the ‘key event’ and watershed experience for German society, which for some time over-shad46 47 48 49 50

Emnid-Informationen, Weltmeinungen zum Eichmann-Prozess (17 June 1961). Regina Schmidt and Egon Becker, Reaktionen auf politische Vorgänge (1967) 113. Emnid-Informationen, above n 46. Noelle and Neumann (1965), above n 42, 227, 228, 225. Wolfgang Benz, ‘Ein Prozess, der die Republik veränderte’, Die Zeit (Hamburg, Germany), 20 August 2005.

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owed the Nuremberg Trial. It illuminated the horror of the death camps and the Holocaust in all graphic detail, the victims had a real presence in Germany for the ﬁrst time, and media coverage was extensive. It became a deﬁning moment for the identity of the younger generation, who were not directly involved, and it allegedly shaped the students’ movement in Germany. The presence of victims was one of the decisive diﬀerences between the Nuremberg Trial and the Auschwitz Trial; the other was that the defendants were not members of an elite group but mass murderers of a very low rank. Only 20 of the more than one thousand guards and oﬃcials who had served in Auschwitz were on trial. As one of the victim witnesses ironically put it, ‘the rest has dissolved in the population’. Contemporary polls do not fully support the signiﬁcance later attributed to the Trial. Six months into the Trial, only 60 per cent of the German public had heard of it, which was in contrast to 90 per cent who heard of the Eichmann Trial. Like in the Nuremberg Trial, people however were aware of the atrocities brought to justice. Just a majority (53 per cent) supported the Trial and found it ‘right’; amongst these, one-third named the recovery of truth as their main reason, two-thirds supported the Trial because ‘those responsible for the mass murder in Auschwitz should be adjudicated and punished’. However, 40 per cent were against the Trial because ‘after so many years these things should not be brought up again’. In comparison, only 15 per cent had supported this view in the Eichmann Trial three years earlier. The actual impact on the collective consciousness and identity of Germans can be gauged from the age, education and social status of those who supported the Eichmann and Auschwitz Trials and who were opposed to closing the books on the past. These were the younger, urban, well-educated people, civil servants or professionals. In 1961, the proportion of those who accepted ‘some kind’ of moral guilt for the ‘annihilation of the Jews’ was highest amongst those with highest educational levels. It is, however, not surprising that business and industry leaders were mostly opposed to the Auschwitz Trial, since for the ﬁrst time it revealed the full extent of the involvement of industry and business in the genocide of the Jews. Like during the previous decade, attitudes in support of the trials of perpetrators of war crimes and crimes against humanity were most frequent among contemporary and future elites of Germany. In the case of the Eichmann and Auschwitz Trials the impact of a new generation was obvious: the youngest 51 52 53 54 55 56 57

Ibid. Alphons Silbermann and Manfred Stoﬀers, Auschwitz: Nie davon gehört? (2000). DIVO (1964): DIVO-Pressedienst, 1-2 July 1964. Ibid 8. Ibid 12. With regard to the Eichmann Trial, see Schmidt and Becker, above n 47, 128. With regard to the Auschwitz Trial, see DIVO 1964, above n 53, 11. Noelle and Neumann (1965), above n 42, 229.

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age groups were deeply impressed and in many ways were shaped by both Trials. Support for the prosecution and punishment of Nazi perpetrators by these future elite groups was decisive since they had, or were going to have, a considerable impact on public opinion, and the process was certainly driven by the adoption of more liberal attitudes among these age groups. V

Lessons to Be Learned from the Nuremberg Tribunal: The Slow Pace of Civilising Impact

When Germans (West) were asked in 1995 which events had been a dramatic turning point in German history 24 per cent named the Nuremberg Trial, which ranked it 23rd of 40 events. In 1996, 44 per cent said that National Socialism set the history of Germany apart from other countries, and nearly half of these explicitly mentioned the atrocities and the Holocaust committed by the Nazi regime. The Nuremberg Trial had left its mark on German consciousness and identity, and its model was evoked again and again in the prosecution of Nazi and other state perpetrators in the West and the East. In 1992, a near-majority of the citizens of former communist German Democratic Republic opted for a ‘special tribunal … like the Nuremberg Trial’ for the ‘state criminals’ of the former German Democratic Republic. It is hard to imagine that Germany would have started and intensiﬁed the investigation and prosecution of Nazi criminals without the landmark model of the Nuremberg Trial and the follow-up trials. Certainly, the decade from 1950–60 was dominated by various amnesties that actually pardoned a considerable number of those who had been involved in war crimes and mass killings. However, also during this decade the groundwork was laid for the investigation, prosecution and punishment of the perpetrators that has now come to an end. During the 1960s and 1970s, a highly divided German public and political class engaged in a debate on the abolishment of the statute of limitation for murder, which ﬁnally was achieved in 1979 and allowed for the further investigation and prosecution of thousands of cases until today. In sum, since 1945 about 6500 perpetrators were punished in the area of western Germany, out of about 90 000 investigations. Many of the perpetrators received a pardon or were released before they had served their sentences. In particular, many of the high-ranking 58 59

DIVO 1964, above n 53. Elisabeth Noelle and Renate Koecher (eds), Allensbacher Jahrbuch der Demoskopie 1993-1997 (1997) 531, 504. 60 Karstedt, ‘Die doppelte Vergangenheitsbewaeltigung der Deutschen’, above n 20, 59. 61 In more than 80 000 cases no sentences were obtained, because the perpetrators had not survived the war; their individual responsibility could not be proven; they had already been sentenced in other countries; or they had ﬂed the country: Adalbert Rueckerl, NS-Verbrechen vor Gericht (2nd ed, 1984) 307.

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defendants pleaded that they were unﬁt to stand trial which they were granted if not in an unjustiﬁed way, then at least more often than usual. Nonetheless, in hindsight, the prosecution of the perpetrators of war crimes and genocide cannot be rated as a failure, and this would not have been achieved without the model of the Nuremberg Tribunal. The prosecutions had revealed a truth that could never be denied again by the majority of the population, and in particular they prepared future elites for shouldering the moral burden. The trials that were conducted in the 1960s and 1970s kept the memories of the Nuremberg Trial and its message alive, and fuelled a continuous moral debate that slowly changed and (re)shaped collective memories and national identity. Though there is no direct evidence, it is plausible that the policies of reconciliation and recompensation, which started in the early 1950s, were partially driven by the motive to avoid further prosecution and to alleviate international pressures on Germany to prosecute its perpetrators. In fact such pressures were always present. The Allies, in particular the Americans, closely observed all plans for amnesties, and prohibited at least the planned general amnesty. The Eichmann and Auschwitz Trials were closely watched and welcomed by the international community, and international pressure proved to be powerful in the ﬁnal consent by the German government and industry to compensate for forced labour at the end of the millennium. The Nuremberg Trial was a landmark both for the international community as well as for German society. The civilising inﬂuence of the Nuremberg Trial was simultaneously direct and instantaneous, but it also took several decades and developed at a slow pace. As institutionalised revenge, it was successful in a paradoxical way, as it provided the Germans with the opportunity to vicariously take revenge on their leaders through the victorious Allies. However, this presumably contributed to the wide-spread acceptance of the Tribunal, which might have had a positive impact in the long run. This instantaneous impact was overridden by the long-term and slowly developing civilising inﬂuence that needed to be supported by further trials and continuous debate. However, for about two decades the German public was clearly divided on these issues, as today the public is in South Africa or in former Yugoslavia. Before drawing some lessons from the Nuremberg Trial and the European ‘success story’ for contemporary post-conﬂict situations, we need brieﬂy to remind ourselves of the unique situation in which the Nuremberg Trial took place. The 62 63 64

65

Herbert, above n 18, 517. Ibid 500. Gunnar Theissen, ‘Common Past, Divided Truth: The Truth and Reconciliation Commission in South African Public Opinion’ in Susanne Karstedt (ed), Legal Institutions and Collective Memories (forthcoming 2008). Hagan and Kutnjak Ivkovic, ‘War Crimes, Democracy and the Rule of Law in Belgrade, the Former Yugoslavia and Beyond’, above n 2.

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perpetrators had been thoroughly defeated and disempowered. Perpetrators and victims were not confronting each other as groups, and actually victims were not present at all. In addition, a strong international force was in place in order to re-establish democracy. This of course considerably diﬀers from contemporary post-conﬂict situations. With this in mind, it seems to be possible to draw the following lessons: – International courts as well as international supervision of proceedings are accepted and even welcomed by the public. In the eyes of the public they provide a safeguard against undue inﬂuence and vested interests in local justice, and consequently victor’s justice seems to have speciﬁc advantages. – International courts and international participation can relieve the emerging democratic forces from imminent contentious issues and conﬂicts, and defer these to a period when democratic forces are more stable, as happened in Germany from the 1960s. – International tribunals like the Nuremberg Tribunal are extraordinarily important in recovering and clarifying the truth, and changing perceptions of identities, in the short as well as in the long run. – The Nuremberg Trial was conducted in a perpetrators’ environment, and allowed the perpetrators to feel as victims. Today, victims are present and have a voice. This contributes to more unambiguous moral messages and clariﬁcation. – Amnesties were neither planned as part of the Nuremberg Trial nor of the follow-up trials or denaziﬁcation procedures, but developed on an ad hoc basis in response to procedural and overload problems, or internal political pressures. This impacted upon the legitimacy of the Nuremberg Trial and other trials, and distorted the message of the trials. Amnesties therefore need to be part of legal and criminal justice procedures from the start, and criminal procedures have to be assessed for their proper capacities and potential to fulﬁl the task. – The recovery and clariﬁcation of the truth is a long process, as is the process of doing justice. Emerging and democratic elites are decisive in supporting investigations and trials, they are more inclined to accept a moral responsibility, and they are important multipliers and gatekeepers in changing values and judgments of the public in the long run. This includes the younger generation, and the children of those who were directly involved. The engagement with, and support of, these elites is vital for the civilising inﬂuence of international justice.

66

See, eg, ‘Hitler’s Legacy: An Interview with Historian Norbert Frei’ in Der Spiegel: The Germans: Sixty Years After the War (2005, Special ed) 44-8; Theissen, above n 74.

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Erich Kästner, a famous writer best known for his children’s books, was one of the German observers admitted to the Nuremberg Trial. Sixty years ago, on 22 November 1945, he wrote: Now war, pogrom, persecution, mass killing and torture are sitting in the dock. Larger than life and invisible, they are sitting beside the human beings who are charged. Those responsible will be called to account. Will it succeed? And: It has not only to succeed this time, but in all future cases.

67

Erich Kästner, Gesammelte Schriften fuer Erwachsene. Band 8: Vermischte Beitraege III (1969) 33 [trans of Susanne Karstedt].

Part Two Nuremberg and the Importance of Criminal Responsibility

Chapter 3 The Importance of a Retributive Approach to Justice Graham T. Blewitt AM

The theme of this publication invites us to look at the legacy of the Nuremberg Trial and to consider whether that legacy has resulted in a civilising inﬂuence or has merely institutionalised vengeance. My own experiences working in the ﬁeld of international criminal law since 1988 have led me to come down ﬁrmly on the side of the former, namely the Nuremberg Trial and the developments of international criminal law in more recent times has clearly had a civilising inﬂuence. This chapter argues that victims and survivors of crimes against humanity, and similar violations of international humanitarian law, are more likely to forgive and allow reconciliation to occur, without recourse to acts of revenge, if justice is achieved. Recent attempts to extend the legacy of Nuremberg, through the creation of various ad hoc international criminal tribunals and most recently the permanent International Criminal Court (ICC), has resulted in international criminal law no longer being merely an academic topic to be studied in universities and law schools around the world; it is now ﬁnally a body of law that is enforceable. Through these eﬀorts to give teeth to international criminal law, there is at last a real deterrent present at the international level that may give pause to future political and military leaders who would embrace genocide and crimes against humanity as a means of implementing their policies. The creation of a permanent deterrent at the international level, coupled with mechanisms that enable reconciliation – particularly after conﬂicts arising from cycles of violence that have spanned decades or centuries – demonstrate how the legacy of Nuremberg has had civilising consequences. To show the importance of the retributive approach I will turn to the topic of reconciliation. All victims expect, and in my view are entitled to see, that the persons most responsible for the crimes against them, their families and loved ones, are brought to justice. If justice is not achieved on their behalf, then their feelings of grievance and their desire for revenge could lead to them taking the law into their own hands to achieve justice, or what they perceive in their eyes as justice – an eye for an eye!

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 39-46.

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One very recent demonstration of this saw unresolved injustices from World War Two spilling over into the conﬂicts in the Balkans during the 1990s. It was my experience when investigating Nazi war crimes here in Australia, as a member of the Special Investigations Unit (SIU) from 1988–92, that the unfulﬁlled quest for justice on the part of surviving victims of World War Two crimes was a strong motivating factor for those victims to ﬁnd their own justice. Australia began investigating Nazi war crimes as late as the 1980s. Following the end of World War Two, there were literally millions of refugees and displaced persons in Western Europe. Australia was one of the many countries that accepted tens of thousands of these displaced persons, who migrated to this country looking for a new life. Unwittingly, amongst their number were Nazi collaborators who were either unable to return to their homeland, or chose not to, because they feared prosecution (or persecution) for war crimes. Many of the migrants who arrived in Australia during the late 1940s and throughout the 1950s were victims of war crimes, who recognised their persecutors also living here in Australia. These victims reported the presence of these war criminals as early as 1947, but nothing was done by the authorities. One of the stated reasons for such inaction on the part of the authorities was that following the devastation and destruction experienced during the war, the Australian Government took the view that it was time to forgive and forget and to move on, to build a new nation. In Australia’s case, it was a question of ‘populate or perish’. Notwithstanding, the Government’s desire to ignore the problem and to ‘close the chapter once and for all on the question of Nazi war crimes’, the voices of the victims would not remain silent. After four decades of inaction, their call for justice was loud enough to be heard. We are privileged, in this publication, to have a chapter by Mark Aarons. Aarons was an investigative journalist working for the ABC who in the early to mid 1980s undertook extensive investigations which established that there were indeed high-proﬁle Nazi war criminals living here in Australia. In 1986 Aarons’ ﬁndings were broadcast throughout Australia, in his ABC radio documentary series ‘Nazis in Australia’. The public reaction to the radio series was suﬃcient to cause the Hawke Government to conduct investigations into Aarons’ ﬁndings.

1 2 3 4 5

See, eg, Geoﬀrey Robertson, Crimes against Humanity: The Struggle for Global Justice (1999) 286. Mark Aarons, War Criminals Welcome: Australia, A Sanctuary for Fugitive War Criminals Since 1945 (2001). Attorney-General’s Department, Special Investigations Unit, Report of the Investigations of War Criminals in Australia (1993) 11. Ibid 15. Ibid 14-5.

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On 28 November 1986 the Menzies Report conﬁrmed these allegations, which led the Hawke Government to take the unprecedented step of establishing the SIU. The function of the SIU was to investigate allegations and, if suﬃcient evidence existed, to submit prosecution briefs to the Director of Public Prosecutions (DPP). At the same time, the Government amended the War Crimes Act 1945 (Cth) to enable prosecutions by the Attorney-General or the DPP to take place in Australia, under Australian law, as if the crimes had been committed in this country. Unfortunately, the legislation was restricted to prosecuting crimes committed in Europe and only during the period of World War Two (1 September 1939 – 8 May 1945). The work of the SIU, from 11 May 1987 – 30 June 1992, partly involved investigations into allegations relating to crimes committed in the former Yugoslavia during World War Two. Our investigators located survivors of these crimes living in Australia. A number of them were still very aggrieved that persons who were responsible for the deaths of their fathers, brothers, uncles and other relatives during the war had not been brought to justice. They held members of rival ethnic groups responsible as participants in the crimes. It became apparent to these victims towards the end of the 1980s and early 1990s that a conﬂict was likely to break out in the Balkans, following the political void after the death of Tito in 1980. They told our investigators that they would send their own sons, who were born in Australia and who were in their early 20s, to the Balkans to participate in the ﬁghting and to take vengeance for the crimes committed against their relatives during World War Two. Regrettably, it would appear that many young Australian men, of both Croatian and Serbian descent, went to the former Yugoslavia in the early 1990s, joined various paramilitary groups, and participated in some of the bloodiest atrocities committed during the conﬂict. These paramilitaries were involved in mass killings, mass rape and countless beatings and torture of military personnel and innocent civilians, whose only crime was that they belonged to a diﬀerent ethnic group. After participating in these terrible killings and other atrocities, these young Australian citizens returned to Australia, with blood on their hands, to resume their otherwise normal lives, but having achieved, in their eyes and in

 7 8 9 10 11

A. Menzies, Review of Material relating to the Entry of Suspected War Criminals into Australia () (‘Menzies Report’). Attorney-General’s Department, Special Investigations Unit, Annual Report (1989) 3. See War Crimes (Amendment) Act 1988 (Cth). War Crimes Act 1945 (Cth) ss 5, 12. War Crimes Act 1945 (Cth) s 9(1). Attorney-General’s Department, Report of the Investigations of War Criminals in Australia, above n 4, 40.

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the eyes of their families, justice and vengeance for the crimes committed decades in the past. It is shameful indeed that Australian citizens would have acted in this way. Nevertheless, it does highlight the problem that unless justice is obtained for the victims of war crimes, the sense of injustice is likely to feed future crimes, and certainly prevents an end to cycles of violence. It is worth pausing to note some of the important lessons that emerge from the Nazi war crimes experience in Australia. The SIU investigated in excess of 800 allegations that persons responsible for Nazi war crimes came to this country at the end of the World War Two. The SIU established that about 400 of these individuals did arrive in this country and over half that number were already deceased. In respect of the remaining 200 cases, the SIU was able to establish that the allegations were most likely true in about 40 cases. However, given the passage of time and the availability of evidence, the SIU was only able to gather suﬃcient evidence against four individuals to warrant them being put on trial. These four individuals were Ivan Polyukhovich (allegedly played a major role in the mass killings of Jews in Sernicki, Ukraine between 1 August 1941 – 31 May 1943); Mikolay Berezovsky (allegedly participated in the killing of 102 Jews in Gnivan, Ukraine); Heinrich Wagner (allegedly involved in the murder of 104 Jews in Izraylovska in mid 1942 and the murder of 19 children); and Karlis Ozlos (allegedly a member of the Arajs Kommando which ordered and carried out mass shootings of tens of thousands of Jews in an around Minsk, Byelorussia in 1942 and 1943). Only one of these cases made it as far as a trial. In January 1990 Polyukhovich was arrested in South Australia and charged with the murder of approximately 850 people in the village of Sriniki. After various delays, in July 1992 Polyukhovich 12 13 14 15 16 17

Ibid 45. Attorney-General’s Department, Annual Report, above n 7, 1. Attorney-General’s Department, Report of the Investigations of War Criminals in Australia, above n 3, 45. Ibid 55-61. Aarons, above n 2, 485. Committal proceedings were supposed to commence in the Adelaide Magistrate’s Court on 30 July 1990 but were delayed because the defendant was shot and seriously injured the day before. Following the shooting the defence raised the issue of Polyukhovich’s ﬁtness to be tried. The preliminary hearings were interrupted because in April 1990 the defence brought proceedings in the High Court of Australia challenging the validity of the 1988 amendments to the War Crimes Act 1945 (Cth). In August 1991 the High Court upheld the validity of the amendments. See Polyukhovich v Commonwealth (1991) 172 CLR 501. The South Australia ﬁtness proceedings were stayed until the High Court determined the challenge to the legislation. In October 1991 committal proceedings against Polyukhovich commenced in the Adelaide Magistrates Court. In June 1992 the Magistrate committed Polyukhovich for trial on two counts of war crimes to the Supreme Court of South Australia. See Attorney-

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was charged with two counts of war crimes. These were serious crimes within the meaning of s 6 of the War Crimes Act 1945 (Cth). In May 1993 the jury found Polyukhovich not guilty on both counts. Proceedings were also brought against Berezowski. He was charged on 5 September 1991 with one count under the War Crimes Act 1945 (Cth). In the committal proceedings against Berezkowski the Magistrate discharged him. On the same day Wagner was charged with three counts under the War Crimes Act 1945 (Cth) and the Magistrate found suﬃcient evidence to commit him for trial in the Supreme Court of South Australia. The DPP, however, decided not to proceed with the prosecution because of the accused’s failing health and ﬁled a nolle prosequi on 9 December 1993. The fourth alleged war criminal, Ozlos, was investigated by the SIU in the 1980s. Unfortunately, the case was abandoned by the Keating Government in 1992 because of the Government’s decision to terminate the SIU. Notwithstanding these results, we were aware that there were many Nazi war criminals then living in Australia who could not sleep at night, and who were waiting for the knock on the door from the SIU investigators. The work of the SIU established that it was possible to investigate war crimes 50 years after the event in countries on the opposite side of the world to where the crimes were committed. This sends the message to war criminals that they should always fear prosecution, regardless of where they go or hide and regardless of how much time elapses. With the fear of the tap on the shoulder, world leaders should think twice if they commit or allow war crimes to be committed. I will now turn to some aspects of the work of the International Criminal Tribunal for the former Yugoslavia (ICTY). Whilst undertaking investigations with the Tribunal I found that there were countless occasions where crimes of violence were committed which had deep-seated motives arising from events of World War Two, and conﬂicts from centuries past. The level of violence in the conﬂict in the former Yugoslavia during the 1990s was almost incomprehensible. Its intensity was exhibited in the hatred amongst the diﬀerent ethnic groups and the fear that they themselves were going to be victimised at the hands of their

18 19 20 21 22 23

General’s Department, Report on the Operation of the War Crimes Act 1945 to June 1991 (1991) 2-5; David Bevan, A Case to Answer: The Story of Australia’s First European War Crimes Prosecutions (1994). Attorney-General’s Department, Report on the Operation of the War Crimes Act 1945 to June 1993 (1993) 9. Ibid 5-6. Attorney-General’s Department, Report on the Operation of the War Crimes Act 1945 to June 1994 (1994) 3. Attorney-General’s Department, Report of the Investigations of War Criminals in Australia, above n 3, 55. Aarons, above n 2, 50-1. Attorney-General’s Department, Report of the Investigations of War Criminals in Australia, above n 3, 575.

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perceived enemy. The nature of the conﬂict saw friend against friend and neighbour against neighbour. It led to many horriﬁc stories, such as a neighbour holding his neighbour captive, forcing him to watch the rape and sexual assault of the captive’s wife and daughters, then to watch them being killed, and then only at the end of these horrors the captive himself would be killed in the most brutal manner. This can hardly be called a war. The United Nations Security Council recognised that the conﬂict in the former Yugoslavia was a threat to international peace and security. In 1993 the Security Council took the unprecedented step of establishing the ICTY, exercising its powers under Chapter VII of the UN Charter, as a measure to preserve international peace and security. It did so with the expectation of preventing the seeds being sown for a future conﬂict by bringing to justice those individuals who were most responsible for the atrocities in the former Yugoslavia. It was hoped that this would ensure an end to the cycles of violence in the Balkans. The ICTY therefore decided to concentrate primarily on the leaders, that is to say the military, political and civil leaders who were responsible for developing the policies that involved the commission of violations of international humanitarian law or, if that was not their original intention, to bring to justice and to punish those leaders who did nothing to prevent their subordinates from participating in such atrocities. It was very clear to us at the start that there would be thousands of perpetrators and that the ICTY would never be able to bring to justice all of those responsible for serious violations of international humanitarian law. By bringing the leaders and the most senior perpetrators to justice, however, this would leave open the possibility that individuals at more junior levels of responsibility could be dealt with by other means. One possibility was that such persons would be investigated and prosecuted at the national level. It was for these reasons that the ICTY, with the assistance and encouragement of the international community, urged the reform of the national judicial systems. With the major political leaders out of oﬃce and being tried in The Hague, this made it possible to encourage the countries of the former Yugoslavia to take the initiative in bringing lower-level war criminals to justice. Upon my departure from the ICTY in 2004 I found it very encouraging to see state-level war crimes courts being established in Bosnia and Herzegovina, as well as in Serbia and in Croatia. I was even more encouraged to see that during 24 25 26

See SC Res 808 (1993), UN Doc S/RES/808 (1993), 22 February 1993; SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993. See SC Res 1503 (2003), UN Doc S/RES/1503 (2003), 28 August 2003; SC Res 1534 (2004), UN Doc S/RES/1534 (2004), 25 March 2004. The War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina was the ﬁrst permanent and specialised state-level organ designed to deal with grave breaches of international humanitarian law.

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the latter part of 2005 signiﬁcant war crimes trials had taken place in Sarajevo, Belgrade and Zagreb in relation to relatively high-level war crimes perpetrators. For example, three persons were convicted of war crimes by the Rijeka County Court, 15 persons were convicted before the War Crimes Chamber of the Belgrade District Court and trial proceedings are ongoing against six persons before the War Crimes Chamber of the Belgrade District Court. The ICTY has also been prepared to hand some of its own cases back to these national courts, to be prosecuted under the watchful eye of the Tribunal. In 2005 the ICTY transferred two accused to Bosnia and Herzegovina and two accused to Croatian national courts. The partnership formed between the ICTY and the national courts of the former Yugoslavia is a very positive development in ending impunity for war crimes and bringing to justice those persons who were responsible for the worst atrocities. This should go a long way to ensure that future conﬂicts in the Balkans will not arise out of a failure to punish those responsible for war crimes committed during the conﬂicts of the 1990s. The International Criminal Tribunal for Rwanda (ICTR) is achieving similar results. Following the success of the ICTY and the ICTR, the international community has had the conﬁdence to create the permanent ICC. It is to be hoped that as this Court becomes more operational it will provide an eﬀective permanent deterrent to those who believe it is possible to commit atrocities with impunity. The mere existence of courts with an investigative capacity, or the existence of enforceable international criminal law, will never bring a complete end to widespread atrocities. One only has to examine what happens in any society, where there are criminal laws to prevent criminal behaviour and courts to punish those found guilty of breaching the law. In Australia the existence of a comprehensive corpus of state and federal criminal law and of a well-resourced police force and criminal justice system to enforce and adjudicate those laws does not prevent the commission of serious crimes such as murder, robbery, rape and every other crime under the sun. But without such laws and without courts to enforce the law, there would be total anarchy and no one would be safe to walk the streets. The existence of these laws and courts does act as a deterrent, and does prevent the commission of crime. The same is true at the international level. 27

28

29

See, eg, Timothy L.H. McCormack, ‘Their Atrocities and Our Misdemeanours: The Reticence of States to Try Their “Own Nationals” for International Crimes’ in Mark Lattimer and Philippe Sands (eds), Justice for Crimes against Humanity (2003) 12734; Correspondents’ Reports for various Balkan countries in Yearbook of International Humanitarian Law. See International Criminal Tribunal for the former Yugoslavia, United Nations, Partnership and Transition between the ICTY and National Courts . Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

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Let me give you one very practical illustration of where international criminal law and an international court have had a deterrent eﬀect. Following the conﬂicts in Kosovo during 1998 and 1999, ethnic tensions built up in Macedonia, when so-called ethnic Albanian rebels sought to achieve some level of independence within Macedonia. It became apparent to us in the ICTY that a potential violent conﬂict was about to erupt, leading to the possibility that violations of international humanitarian law would follow. The Prosecutor of the ICTY and I immediately went to Macedonia to remind the authorities there that the jurisdiction of the ICTY was still current and that it covered the entire territory of the former Yugoslavia, which included Macedonia. We pointed out strongly to the Macedonian authorities that if conﬂict did break out and if crimes falling within the jurisdiction of the ICTY were committed, we would investigate such crimes and would prosecute any individuals responsible for such violations, including oﬃcials who took no action to prevent or to stop such crimes from being committed. We delivered the same message to the ethnic Albanian rebels. On our return to Macedonia several weeks later, it was pleasing for us to be informed by the Macedonian Justice Minister, that following a particular incident, where ethnic Albanian rebels were holding a village hostage, the Government ordered the chief of the military to enter the village and to restore law and order. We were informed that the military chief responded by saying that if he made a mistake whilst carrying out these orders then he would most likely end up in The Hague. He was then informed that he should not make any mistakes and to act within the law. This was one of the most heartening experiences that I had encountered during my period of time at the ICTY and demonstrated to me that the work of the ICTY was having an impact and was in fact achieving the original desired deterrent eﬀect. In conclusion, I am ﬁrmly of the view that the Nuremberg process and its legacy have contributed to the development of the human race, by achieving another step in becoming more civilised, and thus reaching a higher level in our development as a species. For reasons discussed here I do not ﬁnd the retributive approach to violations of international humanitarian law incompatible with a restorative approach to justice but rather complementary to it.

Chapter 4 Investigating International Crimes: A Review of International Law Enforcement Strategies Expediency v Eﬀectiveness John H. Ralston and Sarah Finnin

This paper seeks to raise questions about the objectives or goals of international criminal justice, and whether recent trends are inhibiting the ability of investigators and prosecutors to achieve those objectives or goals through the application of carefully considered prosecutorial policies. It considers whether investigators and prosecutors are being allowed suﬃcient independence to fulﬁl their mandates eﬃciently and eﬀectively, or whether international prosecutions are being hindered by eﬀorts designed to promote expedience. I

Prosecuting International Crimes

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Judgment of the International Military Tribunal at Nuremberg

While international law has, in the past, been primarily concerned with the harmful acts of nation states, the emergence of international criminal law as a distinct branch of international law since the Nuremberg Trial has been accompanied by a shift towards holding individuals responsible for mass atrocities. The attribution of individual criminal responsibility for mass atrocities by international courts and tribunals represents an extraordinary and unparalleled exercise in the enforcement of international law. International crimes that come before such courts and tribunals will constitute the gravest of oﬀences, and will typically involve hundreds of perpetrators and an even higher number of victims

1

United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (1947) Vol 1, Judgment, 223.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 47-68.

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and witnesses. The crimes will often have occurred during an armed conﬂict or in situations where law and order has broken down. Furthermore, the individual criminal acts which occur in this context can not be treated as isolated or sporadic events, as they often represent a concerted eﬀort that extends over a number of years or across an entire region. As Allison Danner and Jenny Martinez describe, the type of crime that comes before such courts and tribunals diﬀers signiﬁcantly from ordinary domestic crimes. International criminal law addresses crimes of a gravity and scope that dwarf most domestic prosecutions. Even the most wide-ranging conspiracy prosecution involving a sprawling narcotics ring cannot match the scale of destruction and legal complexity encompassed by the typical international criminal trial.

As a signiﬁcant proportion of the population may be somehow implicated in the atrocities, individual responsibility for international crimes will therefore manifest itself in a variety of ways and to varying degrees. The international criminal justice system requires, however, that responsibility for atrocities be allocated or calibrated amongst those individuals involved; individuals who have: – orchestrated mass crimes (eg military or political leaders); – perpetrated mass crimes directly (eg foot soldiers or prison guards); – incited violence (eg media or religious leaders); or – supported the crimes of the regime through passive acquiescence. An international tribunal established in the wake of widespread atrocities will thus have jurisdiction over potentially thousands of cases (particularly in situations where the domestic criminal justice system is no longer functioning at all, as was the case in the former Yugoslavia). Yet the international criminal justice system is characterised by ﬁnite ﬁnancial and human resources, making the trial of all individuals suspected of committing atrocities a practical impossibility. While this is true for domestic and international criminal justice systems alike, the problem of resources is magniﬁed in the international criminal law setting as

2

3

For example, the Rwandan genocide has been estimated to involve thousands of perpetrators. In 2000, a Special Representative of the United Nations Commission on Human Rights reported that around 120 000 genocide suspects were still being detained (many without charge) in Rwandan jails: Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative, Mr. Michel Moussalli, UN Doc E/CN.4/2000/41, 25 February 2000, paras 92-7. Allison Marston Danner and Jenny S. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’ (2004) Vanderbilt Public Law Research Paper No 0409; Stanford Public Law Working Paper No 87, 19 available at .

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institutions need to be established from scratch and both local and international personnel are employed. A The Role of Prosecutorial Discretion The combination of the international system’s particular capacity limitations and its commitment to individual criminal responsibility – which requires that the court or tribunal ﬁx liability on key individuals for their deliberate wrongdoing, rather than groups for their collective wrongdoing – means that international prosecutors must, as a matter of necessity, be highly selective in committing resources to investigating and prosecuting particular cases. They must isolate a handful of individuals considered most responsible for crimes committed by a multitude of persons. In order to meet this task, international prosecutors, like their domestic counterparts, must develop strategies for focusing their resources on prosecutions they consider to be most important. The exercise of prosecutorial discretion covers both phases of international criminal procedure: the investigation and the prosecution. In each of these phases, the prosecutor is called upon to set the priorities of both the object of the investigations and the subject of the prosecutions. The instrument establishing the court or tribunal (whether it be a Security Council Resolution or a treaty) will therefore give prosecutors broad discretion to develop strategies to target oﬀenders and oﬀences in a way that the prosecutor believes will best serve the court or tribunal’s mandate. The need to carefully choose one’s battles heightens the stakes of international criminal proceedings, and the decision to pursue the prosecution of a particular individual becomes an intrinsically political act, with signiﬁcant consequences for the region. Prosecutors have, therefore, an important role to play with respect to the way in which an international tribunal addresses its mandate. The exercise of discretion in pursuit of the tribunal’s mandate is, however, an extremely complex and daunting task, given the unique objectives of international criminal justice. While domestic justice systems focus on the traditional objectives of criminal law (ie retribution, prevention, rehabilitation and deterrence), the international system is made to serve a more elaborate purpose. For example, the Security Council stipulated that a major purpose of the international criminal tribunals for the former Yugoslavia and Rwanda was to contribute to the restoration and maintenance of peace and the rule of law in those regions. The lofty objectives of these international tribunals make the exercise of discretion by prosecutors all the more challenging. 4

See SC Res 808 (1993), UN Doc S/RES/808 (1993), 22 February 1993, Preamble (‘Convinced that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal … would contribute to the restoration and maintenance of peace’); SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994, Preamble (‘Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitar-

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While some states and international organisations have expressed uneasiness at the vast powers given to prosecutors in interpreting and executing a tribunal’s mandate, there are good reasons for relying on an independent prosecutor to determine how best to perform this duty. Strategies developed by prosecutors to guide the exercise of their discretion allow for a range of factors to be taken into consideration, in recognition of the complexity of the assessment that must be made. These factors will include not only the standard criteria applied in domestic criminal justice systems – such as suﬃciency of evidence, prospects of conviction, availability of defences, admissibility of evidence, reliability of witnesses, the seriousness of the oﬀence, the prevalence of the alleged oﬀence – but also those factors which arise from the unique role played by the international tribunal or court. Translating the broadly deﬁned mandate of the tribunal into a workable law enforcement strategy requires somewhat political choices as to the purpose of international criminal justice in the aftermath of mass atrocities. International criminal justice plays an important expressive and symbolic function in the aftermath of armed conﬂict and mass atrocities. It also plays an important part in broader eﬀorts of transitional justice, reconciliation and peace building. The enforcement of criminal law and punishment of oﬀenders by the international community has a powerful moralising eﬀect in an environment characterised by impunity, and can have signiﬁcant practical outcomes for the population. While the ability of international criminal courts and tribunals to achieve these lofty objectives should not be overstated, they should be allowed to inform prosecutorial strategy. In addition, the availability of other forums for criminal prosecution (eg domestic courts) or alternative processes (such as truth and reconciliation commissions or human rights bodies) will also be an important consideration. B

Eﬀorts to Limit Prosecutorial Discretion

Despite the eﬀorts of prosecutors to focus their resources, the time taken to ﬁnalise prosecutions and the costs of running the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have led to considerable criticism. According to Ralph Zacklin, the former UN Assistant Secretary-General for Legal Aﬀairs, [t]he verdict is now largely in. The ad hoc Tribunals have been too costly, too ineﬃcient and too ineﬀective. As mechanisms for dealing with justice in postconﬂict societies, they exemplify an approach that is no longer politically or ﬁnancially viable.

5

ian law … would contribute to the process of national reconciliation and to the restoration and maintenance of peace’). Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541, 545.

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Such criticisms led to calls to narrow the scope given to prosecutors in more recent international tribunals with respect to the exercise of their discretion in developing strategies to focus limited prosecutorial resources. Rather than rely on an independent prosecutor to determine how best to use those limited resources to achieve a tribunal’s mandate, restrictions on the personal jurisdiction of the tribunals were incorporated into the relevant constitutive documents through textual formulas. Thus, those states and/or institutions establishing international criminal tribunals or courts have attempted to usurp the role of the independent prosecutor in setting and applying prosecutorial strategies by limiting the mandate of those bodies to certain types of oﬀenders. Initially, the jurisdiction of the ad hoc Tribunals was delimited by concentrating on those responsible for the most serious crimes; jurisdiction was not limited to individuals in positions of authority, or limited by any reference to their degree of culpability. By 2004, however, the focus had moved away from the gravity of the crime, to the gravity of the responsibility. The formulation of the jurisdictional mandate of tribunals and courts moved from ‘those responsible’ (ie with no restriction based on the degree of responsibility or the nature of the alleged involvement), to ‘those most responsible’, to ‘those bearing the greatest responsibility’, and then to ‘the most senior leaders bearing the most responsibility’. David Crane, the ﬁrst Prosecutor of the Special Court for Sierra Leone, gives an interesting view of what these various terminologies mean: The operative word is ‘greatest’. It is this adjective that makes the work of the Court achievable in a manageable period of time. By inserting this word the numbers of potential indictees that could be indicted are less than two dozen. Change the word to ‘most’ responsible and the number of indictees raises dramatically to 50–100 persons with a minimum of ten years needed to fairly try them. Drop the adjective before responsibility and the number is unmanageable, the time indeﬁnite.

6

7

For similar criticisms to that made by Ralph Zacklin, see, eg, Hearing before the Committee on International Relations, United States House of Representatives, UN Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice?, 107th Cong. 20 (28 February 2002) (testimony of Pierre-Richard Prosper, US Ambassador-at-Large for War Crimes Issues) (‘… in both Tribunals, the process, at times, has been costly, has lacked eﬃciency, has been too slow, and has been too removed from the everyday experience of the people and the victims.’). David M. Crane, Prosecutor for the Special Court for Sierra Leone, ‘Dancing with the Devil: Prosecuting West Africa’s Warlords: Current Lessons Learned and Challenges’ (Paper presented at the Colloquium of Prosecutors of International Criminal Tribunals, Arusha, Tanzania, 25–27 November 2004).

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The United States Ambassador-at-Large for War Crimes Issues, Pierre-Richard Prosper, interpreted their meaning in 2001 as follows: The Security Council clearly envisioned the fundamental responsibility of domestic courts for adjudicating some of these serious violations. … It is clear that the intention of the Security Council was for the tribunals to prosecute the upper echelons of the organizations that committed the atrocities leaving the balance to the states. The Tribunals should therefore focus on those most responsible as originally envisioned.

However, these comments are more a reﬂection of where international justice had moved to, rather than a statement of the Security Council’s intentions in 1993. A look at the language of the constitutive documents for the ICTY and ICTR does not reveal any such intention at the time they were passed. Thus, the changes in the formulation of the language establishing the international criminal tribunals and courts have narrowed prosecutorial scope in an eﬀort to reduce the cost of international justice. But is this an appropriate response to criticisms that international justice is too expensive? An examination of prosecutorial strategies of the various tribunals and courts suggests that this response has only reduced the eﬀectiveness of the tribunals and courts, rather than making them more eﬃcient. II

Prosecutorial Strategies

This part examines the prosecutorial strategies of the two ad hoc Tribunals, and then follows the recent eﬀorts at limiting prosecutorial direction. In considering the mandates and experiences of the diﬀerent international courts and tribunals in focusing their resources through prosecutorial strategies, criticisms of those bodies based on cost-eﬃciency and eﬀorts to limit the scope of prosecutions can be evaluated more eﬀectively. Questions will be raised as to the impact recent eﬀorts have had on the ability of prosecutors to achieve their mandates. A The Ad Hoc Tribunals 1

The Strategy Developed by the ICTY

The ICTY was established by Security Council Resolution 827 in 1993, which stated that the Tribunal would be established

8 9

Pierre-Richard Prosper, US Ambassador-at-Large for War Crimes Issues (Address delivered at The Peace Palace, The Hague, Netherlands, 19 December 2001). SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993.

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for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia …

Resolution 827, in setting the mandate for the ICTY, does not refer to the level or position of possible oﬀenders. It focuses on ‘serious violations’ – in other words, the gravity of the oﬀences. Anyone, regardless of their political status or level of command responsibility, can be prosecuted. Furthermore, Resolution 827 does not refer to, or seem to envision, any fundamental intention for domestic courts to adjudicate some of these serious violations. Indeed, the local judicial system had fundamentally broken down and was viewed at the time as being incapable of dealing with serious violations of international humanitarian law. This was the basis for the primacy provisions of the ICTY. Thus, it can be seen that the Security Council and the Secretary-General had provided ICTY investigators and prosecutors with very little guidance on how the Tribunal should go about fulﬁlling its mandate with the resources put at their disposal. The Oﬃce of the Prosecutor was left to develop policies or criteria for determining who would be investigated and prosecuted, in response to their limited resources. The ICTY strategy focussed on several aspects: – those bearing most responsibility, including those in leadership positions, for serious violations of international humanitarian law; – notorious oﬀenders; and – persons responsible for egregious sexual violence. The strategy also combined targeting leaders while dismantling structures that supported them. It was clear that the manifestation of violence was not solely the responsibility of the leaders. Those leaders relied heavily on the willingness of various oﬃcials and individuals at the village, municipality and regional levels to implement their policies of violence. The reaction at these levels was not spontaneous; it was planned and calculated. To allow these local level leaders and/or 10

11

Ibid para 2. See also Statute of the International Criminal Tribunal for the former Yugoslavia, art 1, annexed to SC Res 827 (1993), UN Doc S/RES/827 (1993) (adopted 25 May 1993, as amended 19 May 2003) (‘ICTY Statute’) (‘The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 …’). ICTY Statute, above n 10, art 9(2) states: The ICTY shall have primacy over national Courts. At any stage of the procedure the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.

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warlords to remain in place after the cessation of hostilities would mean that territory gained through ethnic cleansing would be held, and the return of former inhabitants would be impossible. The ICTY has indicted a total of 161 people. Those indicted include political and military leaders from each of the ethnic groups and states: Croats, Croatian Serbs, Bosnian Serbs, Bosnian Croats, Bosniacs, Serbians, and Kosovar Albanians. They include notorious oﬀenders, such as Serbian paramilitary commander Željko Ražnjatović aka ‘Arkan’, and Goran Jelesić aka ‘the Serbian Adolf ’. Individuals from various other levels of society have also been indicted, bearing in mind the strategy outlined above. The results of the strategy employed by the Tribunal – and whether the indictment of local-level ﬁgures has in fact been eﬀective – is demonstrated by a closer examination of these cases. Organised crime posed a signiﬁcant obstacle to the development of a peaceful Bosnia and Herzegovina. The removal of Mladen Naletilić (Tuta) and Vinko Martinović (Štela), both alleged organised crime ﬁgures in Herzegovina (sentenced on 31 March 2003 to 18 and 20 years’ imprisonment respectively, after indictment and transfer to the ICTY) assisted in combating this problem. Both were responsible for extremely grave oﬀences; neither was part of the oﬃcial hierarchy. Simo Drljača, the then Chief of Police in Prijedor, was indicted along with local political leaders Milomir Stakić and Milan Kovačević. These three had presided over some of the most severe ethnic cleansing in Bosnia and Herzegovina – in the Prijedor region. Drljača and his police colleagues were responsible for much of the implementation of the ethnic cleansing policy. Almost all of the 49 351 non-Serbs in the area suﬀered, thousands were killed or imprisoned. Almost no non-Serbs remained in the area after October 1992. After the cessation of hostilities Drljača continued to rule the area. It was not a welcome place for those wanting to return, or for international observers for that matter. Even his police colleagues commented they had to pay him bribes for promotion. This changed when Drljača died after opening ﬁre on NATO troops endeavouring to detain him (on the ICTY’s warrant). The United Nations High Commissioner for Refugees (UNHCR) estimates up to 27 000 people have returned to Prijedor, something highly unlikely had Drljača remained in control. 12 13 14 15 16 17

See International Criminal Tribunal for the former Yugoslavia, Thirteenth Annual Report: 2006, UN Doc A/61/271–S/2006/666 (21 August 2006) 4. Prosecutor v Željko Ražnjatović (Indictment), Case No IT-97-27 (23 September 1997). Prosecutor v Goran Jelesić (Indictment), Case No IT-95-10 (21 July 1995). Prosecutor v Mladen Naletilić and Vinko Martinović (Indictment), Case No IT-98-34 (21 December 1998). Prosecutor v Milomir Stakić (Indictment), Case No IT-97-24 (13 March 1997). Prosecutor v Milan Kovačević and Simo Drljača (Indictment), Case No IT-97-24 (13 March 1997).

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Milorad Krnojelac, Janko Janjić, Dragan Gagović and others were indicted for murder, rape and torture committed in the process of the ethnic cleansing of Foča. None of the 21 000 non-Serbs remained in the Foča municipality after mid July 1992. Apart from Krnojelac, none of those indicted were ‘senior leaders’. They were, however, notorious and responsible for serious violations of international humanitarian law. Their indictment and subsequent arrest or surrender removed them from control of the area. Until that time few refugees considered it safe to return to Foča. Since then UNHCR reports that up to 5000 non-Serbs have returned to the area. In June 1992, Milan Lukić, Sredoje Lukić and Mitar Vasiljević killed approximately 135 Bosnian Muslim civilians in the Višegrad municipality by locking them inside two houses and setting the houses on ﬁre. They remained in Višegrad after the war and only ﬂed after Vasiljević was arrested. Until that stage there had been few returns to the area. Almost 22 000 non-Serbs had ﬂed the municipality. By 2005 UNHCR reported that up to 5000 had returned. Ivica Rajić, soldier, gang leader and black marketer, was indicted in 1995 for forcing civilians out of their homes, robbing them, sexually assaulting Muslim women and wilfully killing at least 31 Muslim men, women and children. Long after his indictment in 1995 Rajić could be found in local cafés at nearby Kiseljak. He is reported to have continued black market activities and was a signiﬁcant impediment to the peace process. He only left after NATO forces started detaining indictees in 1997. The point in raising these particular cases is that none of these men could be classed as senior leaders; they were indicted because of the gravity of their oﬀences. None would have been indicted according to the 2004 formula – nor would they have been prosecuted locally. Yet in each case, their indictment and arrest has eﬀectively contributed to the dismantling of criminal enterprises and has removed signiﬁcant impediments to peace and resettlement. 2

The Strategy Developed by the ICTR

As the ICTY was becoming operational, genocide was being committed in Rwanda. The international community – which had failed to heed the calls for help from individuals such as General Roméo Dallaire, Force Commander of the UN Assistance Mission in Rwanda (UNAMIR) – committed itself to bringing those responsible to justice. So in November 1994, the ICTR was established 18 19

20

Prosecutor v Milorad Krnojelac (Indictment), Case No IT-97-25 (17 June 1997); Prosecutor v Dragan Gagović et al (Indictment), Case No IT-96-23 (26 June 1996). Prosecutor v Milan Lukić and Sredoje Lukić (Indictment), Case No IT-98-32/1 (26 October 1998); Prosecutor v Mitar Vasiljević (Indictment), Case No IT-98-32 (26 October 1998). Prosecutor v Ivica Rajić (Indictment), Case No IT-95-14/1 (29 August 1995).

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by Security Council Resolution 955. Adopting the ICTY model, the ICTR was mandated to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 …

The emphasis was again on the gravity of the oﬀence, with an added emphasis on genocide. No reference was made to the position of the oﬀender within a government or other hierarchy, nor was there a reference to the level of responsibility. There was little other guidance for prosecutors. A review of indictments issued by the ICTR suggests a wider strategy than focusing on leaders was adopted. Their cases focussed on: – political leaders, including Kambanda (the former Prime Minister who pleaded guilty to genocide), Ministers and bourgmestres; – military and gendarmerie commanders; – the media; – key ﬁgures from aﬀected prefectures, such as Butare; and – other cases based on the gravity of conduct of individuals, including that of a Catholic priest. This strategy is supported by the ICTR website, which reports that [t]he judgments delivered so far involve one Prime Minister, four Ministers, one Prefect, ﬁve Bourgmestres, and several others holding leadership positions during the events in 1994. The Media case is the ﬁrst judgement since the conviction of Julius Streicher at Nuremberg in which the role of the media has been examined in the context of international criminal justice.

21 22 23 24 25 26 27

SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994, para 1. Prosecutor v Jean Kambanda (Indictment), Case No ICTR-97-23 (28 October 1997). Prosecutor v Théoneste Bagosora et al, Case No ICTR-98-41 (‘Military I’); Prosecutor v Augustine Ndindiliyimana et al, Case No ICTR-00-56 (‘Military II’). See, eg, Prosecutor v Jean-Bosco Barayagwiza et al, Case No ICTR-99-52 (‘Media Case’). See, eg, Prosecutor v Pauline Nyiramasuhuko et al, Case No ICTR-98-42 (‘Butare’). Prosecutor v Athanase Seromba (Trial Judgment), Case No ICTR-2001-66 (13 December 2006). International Criminal Tribunal for Rwanda, The Tribunal at a Glance, Fact Sheet No 1 (2005) para 8, available at <www.ictr.org>.

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The gravity of oﬀences, together with prosecutions in each of the prefectures, seems to have been the major consideration. The geographical aspect of the prosecutions, and the media aspect, while considered by the Prosecutor of the ICTR as being extremely important to justice, accountability and peace, would probably fall outside the 2004 formula. B Recently Established Courts and Tribunals The negotiations to establish additional courts and tribunals since 2000 have been overshadowed by pervasive cost-related considerations, which have greatly inﬂuenced the types of mechanisms or institutions which have emerged. As Secretary-General Koﬁ Annan explained, [p]artly in reaction to the high costs of the original tribunals, the ﬁnancial mechanisms of the mixed tribunals for Sierra Leone and for Cambodia have been based entirely on voluntary contributions.

1

The Strategy Developed by the Special Court for Sierra Leone

In 2000, seven years after the ICTY was established by the Security Council, negotiations began for the establishment of the Special Court for Sierra Leone. In January 2002, an Agreement was signed between the Government of Sierra Leone and the United Nations. Under the Agreement, the Special Court would constitute an institution separate from both the UN and the Sierra Leonean criminal court system, with its expenses being borne by voluntary contributions from the international community. The Special Court began its operations in July 2002. Interestingly, we saw the wording of the mandate evolve to reﬂect an emphasis on the person, as well as the gravity of the oﬀences under the jurisdiction of the Court. Security Council Resolution 1315 (pursuant to which the Agreement establishing the Special Court was made) sets out that the Special Court shall … have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including

28 29

Report of the Secretary-General, The Rule of Law and Transitional Justice in Conﬂict and Post-Conﬂict Societies, UN Doc S/2004/616, 23 August 2004, para 43. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed 16 January 2002 (‘UN– Sierra Leone Agreement’), reproduced in Appendix II to Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, UN Doc S/2002/246, 8 March 2002, Annex (‘Mission Report’).

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Zacklin tempered this somewhat: In terms of those who bear the greatest responsibility for the crimes, in our report we will be suggesting a slightly diﬀerent variation of this formula. That would be ‘those most responsible.’ The reason for this is that we feel that the formula ‘greatest responsibility’ probably pitches the personal jurisdiction very narrowly and probably too high to capture all of those who bear some degree of command or leadership responsibility [and] may have committed crimes. And so we will be proposing in our report that the personal jurisdiction should extend to those [who] are most responsible. This is intended to cover those who were in leadership positions, either politically or militarily.

This line was followed by Secretary-General Koﬁ Annan, who pointed out that [w]hile those ‘most responsible’ obviously include the political or military leadership, others in command authority down the chain of command may also be regarded ‘most responsible’ judging by the severity of the crime or its massive scale. ‘Most responsible’, therefore, denotes both a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime.

They envisaged this would mean 20 to 30 people. The person is emphasised in two ways, ﬁrstly, those bearing greatest responsibility and secondly, those who threaten the establishment of peace. This second element is extremely important, but has it been implemented? Or has it been overshadowed by funding limitations and a focus on those bearing greatest responsibility? The strategy of the Special Court for Sierra Leone has been to try only those who are believed to bear the ‘greatest responsibility’. Reviewing their indictments, this comes to 13 people – one head of state, and leaders of each of the three former warring factions – a handful of leaders only. The ﬁrst two trials began in mid 2004; the ﬁrst concerned three alleged leaders of the Civil Defence Forces 30

31

32

SC Res 1315 (2000), UN Doc S/RES/1315 (2000), 14 August 2000 (emphases added). See also Statute of the Special Court for Sierra Leone, 16 January 2002, annexed to UN–Sierra Leone Agreement, above n 29, art 1. Ralph Zacklin, UN Assistant Secretary-General, Oﬃce of Legal Aﬀairs, Press Brieﬁng in Advance of the Publication of the UN Report on the Special Court for Sierra Leone (New York, 25 September 2000) (emphases omitted) available at . Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc S/2000/915 (4 October 2000), para 30.

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(CDF), and the second concerned three alleged members of the Revolutionary United Front (RUF). A third trial began in March 2005 concerning three alleged former members of the Armed Forces Revolutionary Council (AFRC). The trial against Charles Taylor, the former President of the Republic of Liberia, has recently commenced after he was taken into custody by the Special Court on 29 March 2006, and transferred to The Hague for trial on 20 June 2006. Former AFRC leader Johnny Paul Koroma remains at large, and the indictments against Foday Saybana Sankoh and Sam Bockarie were withdrawn in December 2003 as a result of their deaths. According to the projections set out in the Update to the Completion Strategy, the judicial activities of the Special Court will be ﬁnalised by the end of 2009. The so-called impunity gap is to be addressed by local prosecutions and the Truth and Reconciliation Commission. At the time of its establishment, the lifespan of the Special Court was expected to be at least three years. The Secretary-General initially estimated that the Special Court would cost a total of us$114.6 million over its three years of operation. However, donor states were not prepared to ﬁnance the Special Court to this extent, so the initial three-year estimate was lowered to approximately us$57 million over three years. The Special Court has since operated on a budget of us$19.2 million in its ﬁrst year of operation; us$29.9 million in its second; and us$25.5 million in its third. The budget for the second half of 2006 was set at us$16.9 million, and leading up to completion, the budget is set at us$36 million, us$33 million, and us$20 million for 2007, 2008 and 2009 respectively. The higher projected budgets for 2007 and 2008 reﬂects the serious budgetary consequences of the conduct of the Charles Taylor trial in The Hague, which has required the establishment of a second oﬃce in addition to that in the seat of the Court in Freetown, and the increased security measures required for such a high-proﬁle case. This brings the total operational costs of the Special Court to approximately us$180 million over its entire lifespan. 33 34 35 36

37 38

39

Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Consolidated Indictment), Case No SCSL-04-14, 4 February 2004. Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Consolidated Indictment), Case No SCSL-04-15, 2 August 2006. Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Consolidated Indictment), Case No SCSL-04-16, 18 February 2005. Prosecutor v Charles Ghankay Taylor (Indictment), Case No SCSL-03-01, 7 March 2003; Prosecutor v Charles Ghankay Taylor (Amended Indictment), Case No SCSL-0301, 16 March 2006. Prosecutor v Johnny Paul Koroma (Indictment), Case No SCSL-03-03, 7 March 2003. Prosecutor v Foday Saybana Sankoh (Withdrawal of Indictment), Case No SCSL-0302, 8 December 2003; Prosecutor v Sam Bockarie (Withdrawal of Indictment), Case No SCSL-03-04, 8 December 2003. Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc S/2001/40, 12 January 2001, para 12.

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2

The Strategy Developed for East Timor and Kosovo

The cost of international criminal justice continued to inﬂuence the debate over possible justice mechanisms in the cases of East Timor and Kosovo. Unlike the case of Sierra Leone, voluntary contributions to an international tribunal or court were not considered to be an option. Instead, internationalised courts were established as part of the larger UN peace missions operating in those countries. The funding for these courts was therefore derived from the general UN peacekeeping budget. Compared to the ad hoc Tribunals (and even the Special Court for Sierra Leone), these endeavours have proved to be very cheap. As Professor Cesare Romano has put it, in East Timor and Kosovo ‘the logic seems to be “a little prosecution is better than nothing”’. In East Timor there have been two initiatives to deal with the perpetrators of widespread violence surrounding the 1999 referendum. The ﬁrst was a Serious Crimes Process initiated in 2000 by the United Nations Transitional Administration in East Timor (UNTAET). UNTAET’s mandate required it to bring to justice ‘those responsible’ for the violence. A Serious Crimes Unit (SCU) was established in Dili under the Deputy General Prosecutor for Serious Crimes (DGPSC) to conduct investigations and prosecutions relevant to crimes against humanity and other serious crimes committed in East Timor. The trials were to be conducted before Special Panels for Serious Crimes (SPSC) at the Dili District Court. The second initiative, the Ad Hoc Human Rights Court for 40

41 42 43

44

The material on East Timor is drawn from Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 (May 2005), UN Doc S/2005/458 (15 July 2005) (‘Report of the Commission of Experts’). Cesare P.R. Romano, ‘The Price of International Justice’ (2005) 4 Law and Practice of International Courts and Tribunals 281. SC Res 1272 (1999), UN Doc S/RES/1272 (1999), 25 October 1999. In June 2000, UNTAET set up the Public Prosecution Service for East Timor. Within the Oﬃce of the General Prosecutor, which was based in Dili, a department was established with exclusive authority to investigate and prosecute serious criminal oﬀences – namely genocide, war crimes, and crimes against humanity (as well as murder, sexual oﬀences and torture committed between 1 January and 25 October 1999) (‘serious crimes’). The department was headed by the Deputy General Prosecutor for Serious Crimes, who was supported by a unit of UN staﬀ (the SCU). See Regulation 2000/16 on the Organization of the Public Prosecution Service in East Timor, UNTAET/REG/2000/16, 6 June 2000. In March 2000, UNTAET established District Courts and a Court of Appeal: Regulation 2000/11 on the Organization of the Courts in East Timor, UNTAET/ REG/2000/11, 6 March 2000. The Dili District Court was given exclusive jurisdiction to deal with serious crimes: at ss 10.1, 10.2. The Regulation provided that Special Panels could be established within the Dili District Court and the Court of Appeal to try serious criminal oﬀences, which was done in June 2000. In both Courts, the Panels consisted of two international judges and one East Timorese judge, and

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Timor Leste, was established in Indonesia to try individuals responsible for, inter alia, crimes against humanity and genocide committed in East Timor in April and September 1999. These two forums allowed parallel domestic prosecutions to take place in Jakarta and Dili. The ﬁrst indictments were issued by the SCU in December 2000. Those initial indictments dealt mainly with East Timorese militia members who were already being detained in East Timor. Given the Unit’s time and resource limitations, by August 2001 a coherent prosecutorial strategy was emerging with a focus on 10 priority cases. They related to: – the Liquiça Church attack of 6 April; – the murders in Dili District of 17 April (including those at the house of Manuel Carrascalão); – the Cailaco killings of April and Maliana Police Station attacks of 2–8 September; – the Los Palos Case involving crimes committed between 21 April and 25 September; – the Lolotoe Case of 2 May to 16 September; – the Suai Church massacre of 6 September; – the attack on Bishop Belo’s compound and the Dili Diocese of 6 September; – the Passabe and Makaleb massacres of 8–10 September and October; – the Indonesian National Army (TNI) Battalion 745 Case for deportations, persecutions, killing of UNAMET staﬀ and atrocities carried out between April and September; and – other sexual violence cases carried out in various districts between March and September. These cases were selected on the basis of the number and type of victims, the seriousness of the crimes committed and their political signiﬁcance, and the availability of evidence. A total of 202 individuals were charged with crimes against humanity in those 10 case indictments. Of those, 183 were at large in Indonesia, and the District Court was unable to secure their presence for trial in East Timor. Thus, the trials that took place were of mainly low-level East Timorese militia members, rather than Indonesian military and political leaders. In addition to those 10 priority cases, in February 2002 the SCU prioritised resources to investigate those at the leadership level. This led to the indictment for crimes against humanity of the former Indonesian Minister of Defence and

45

applied both international law and the law of East Timor. See Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Oﬀences, UNTAET/REG/2000/15, 6 June 2000, ss 3, 22.1 (‘UNTAET Regulation 2000/15’). See Presidential Decree No 53/2001, 23 April 2001; Presidential Decree 96/2001, 1 August 2001.

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TNI Commander, General Wiranto; six high-ranking TNI commanders; and the former Governor of East Timor. The serious crimes process continued to function after East Timor became an independent state. Investigations were completed by the end of November 2004, and the mandate of the SCU ended in May 2005. The SCU had indicted 391 individuals, in 95 separate indictments (339 of whom remain at large, outside the jurisdiction). Indictees included: – 37 Indonesian military oﬃcers from the TNI; – four Indonesian police chiefs; – 60 Timorese TNI oﬃcers and soldiers; – the former civilian Governor of East Timor; and – ﬁve former District Administrators. The eﬀorts of the Serious Crimes Process, however, were seriously undermined by the lack of commitment shown by the UN and the broader international community. For example, the Special Crimes Process, which was funded by UNTAET, had an annual budget of a mere us$6.3 million in 2001. Similarly, the Process suffered from severe staﬃng diﬃculties (particularly with respect to judges). A UN Commission of Experts concluded that the serious crimes process has not yet achieved full accountability to those who bear the greatest responsibility for serious violations of human rights committed in East Timor in 1999.

Similarly, the Petition for an International Tribunal on East Timor stated: [t]he judicial system in East Timor has also failed to deliver justice to date. Investigations by the [SCU] have been unacceptably slow. The [SCU] initially concentrated on a select few cases and major atrocities, such as that committed at the Suai church compound on 6 September 1999 where dozens were murdered, have not been properly investigated. There are persistent reports that the [SCU’s] work is severely hampered by problems relating to a lack of resources, management conﬂicts, poor communications, the lack of clear policy guidelines and reluctance to expose the systematic nature of the 1999 violence. There are also allegations of political interference in the judicial process.

With regard to the Ad Hoc Human Rights Court, from the list of about 22 suspects, the Attorney-General indicted 18 individuals from the military and the 46 47 48

Public Prosecutor v Wiranto and seven others, Special Panels Case No 5/2003 (‘Wiranto Indictment’). Report of the Commission of Experts, aboven 40, para 10. Available at .

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police who were directly in command in East Timor at the material time, as well as two civilian government oﬃcials and a militia leader. The highest-ranking oﬃcer charged was a regional military commander for East Timor. The trials of all 18 defendants have been concluded and all defendants but one have been acquitted, either at trial or on appeal. The United Nations Mission in Kosovo (UNMIK) took a similar approach. As the Organization for Security and Co-operation in Europe (OSCE) Mission in Kosovo explains: From June 1999, UNMIK had the responsibility to create a competent, independent and impartial judiciary in which people from all the ethnic communities felt represented. This was not an easy task immediately following an ethnic conﬂict where community distrust was widespread.

The low level of participation of minority community members – particularly Kosovo Serbs – left a mono-ethnic judiciary to deal with highly charged ethnically motivated crimes, including war crimes. This led to calls for the establishment of a ‘Kosovo War and Ethnic Crimes Court’ (KWECC), however the project was abandoned in September 2000, partly due to fundraising issues. The alternative was the introduction of ‘ethnically neutral judges and prosecutors’ into the domestic criminal justice system to deal with cases involving war crimes or inter-ethnic violence more generally. The ﬁrst international judge and prosecutor were appointed in February 2000 to deal with cases arising out of ethnic clashes in Mitrovicë. The program was soon expanded to cover the whole territory of Kosovo when Kosovo Serb prisoners went on a hunger strike to protest against prolonged detention, and demanded that their cases be heard by international judges. Rather than being assigned as part of a separate international justice system, these international judges and prosecutors were fully integrated into the Kosovo judiciary alongside their local colleagues. However, concerns persisted that the number of international judges and prosecutors was insuﬃcient to deal with perceived or real judicial bias. UNMIK therefore promulgated Regulation 2000/64 in December 2000, which provided 49 50 51 52 53

54

OSCE, Department of Human Rights and Rule of Law, Legal System Monitoring Section, Kosovo: Review of the Criminal Justice System 1999–2005 (March 2006) 40. Ibid. Ibid. Regulation 2000/06 on the Appointment and Removal from Oﬃce of International Judges and International Prosecutors, UNMIK/REG/2000/06, 15 February 2000. Regulation 2000/34 amending Regulation 2000/16 on the Appointment and Removal from Oﬃce of International Judges and International Prosecutors, UNMIK/REG/2000/34, 27 May 2000. See also OSCE, above n 49, 41. See, eg, OSCE, above n 49, 41 (‘Cases involving allegations of war crimes, serious ethnically motivated crimes or other politically charged oﬀences must be prosecuted by

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for panels comprised of three judges (at least two of which had to be international judges) to adjudicate cases (known as ‘Regulation 64 Panels in the Courts of Kosovo’). The Special Representative of the UN Secretary-General for Kosovo (SRSG) was empowered to assign a case to a Regulation 64 Panel when it was considered to be ‘necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice’. The Regulation did not, however, specify the role that the internationalised Panels were intended to play. The work of the Panels increased signiﬁcantly over the next two years. While the international judges were only involved in 23 cases in 2000, UNMIK reported that the Panels participated in 118 cases in 2001 and over 200 cases in 2002. By the end of 2005, international prosecutors had prosecuted 502 cases, and since the enactment of Regulation 2000/64, all war crimes cases had been heard by the internationalised Panels. According to the OSCE, ‘[a]lthough the programme could have been more eﬀective, it has been a vital component in dealing with inter-ethnic crimes and, more recently, organised crime in the post conﬂict environment.’ Gregory Naarden and Jeﬀrey Locke, both of whom directly participated in these eﬀorts of UNMIK, have stated that UNMIK’s initial strategy ‘lacked an overall vision for eﬀectively ﬁghting crime over the course of the peace-building process’. Furthermore, they noted that: The haphazard manner in which [the international prosecutors] were introduced into Kosovo limited their ability to prosecute those who posed an immediate threat to peace building. Implementing the much-needed more structured approach to crime ﬁghting required an analysis of the circumstances facing the [international prosecutors]: the types of crime that were destabilizing the peacebuilding process in Kosovo, and the capacity of Kosovar law enforcement institutions to investigate these crimes.

However, they report that by March 2003, international prosecutors had been brought into a single hierarchical structure, headed by a chief international prosecutor. The new structure allowed senior justice oﬃcials to identify criminals who threatened the peace-building process, direct and set priorities for investigations

55 56 57 58

international prosecutors and presided over by a single international judge or a panel with a majority of international judges.’). Regulation 2000/64 on the Assignment of International Judges/Prosecutors and/or Change of Venue, UNMIK/REG/2000/64, 15 December 2000 (‘Regulation 2000/64’). Ibid s 1.1. OSCE, above n 49, 42. Ibid.

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into these individuals, and establish institutional capacity to ﬁght destabilizing crime aggressively in the future.

An analysis by the International Center for Transitional Justice has described the prosecutorial strategy as follows: the [international judges and prosecutors] initially focused on indictments of war crimes against Serbs, partly because of the large number of Serbs in detention when internationals arrived. … [They] also took on war crimes cases against Kosovar Albanians, most notably the Llapi case, which involved high-proﬁle former [Kosovo Liberation Army] leaders. However, gradually the focus shifted from cases deemed inappropriate for local judges and prosecutors to cases that local judges and prosecutors did not want to try because of security concerns or other political pressures. The [international judges’ and prosecutors’] primary focus is now organized crime and corruption cases. As one [international prosecutor] noted, these categories of cases are often interrelated, because criminal power structures, including organized crime, are also involved in terrorism and interethnic violence. … The [international judges and prosecutors] have also handled a number of cases involving UN personnel.

3

The Strategy Being Developed at the ICC

The founders of the International Criminal Court (ICC) at the Rome Conference seemed to pick up Zacklin’s points by the inclusion of the word ‘most’, or did they? Article 1 of the Rome Statute sets out that the ICC … shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this statute, and shall be complementary to the national criminal jurisdictions.

It talks about the most serious crimes, or the gravity of the crimes, rather than the individual’s position. The ICC Prosecutor Luis Moreno-Ocampo has interpreted this as follows:

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Gregory L. Naarden and Jeﬀrey B. Locke, ‘Peacekeeping and Prosecutorial Policy: Lessons from Kosovo’ (2004) 99 American Journal of International Law 727, 727. 60 International Center for Transitional Justice, Lessons from the Deployment of International Judges and Prosecutors in Kosovo (March 2006) 19.  Rome Statute of the International Criminal Court, opened for signature  July ,  UNTS  (entered into force  July ) (‘Rome Statute’).

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John H. Ralston and Sarah Finnin In a global system, litigation must be focused. Therefore, only those who bear the greatest responsibility should be prosecuted. A system has been developed to address this. It begins with an analysis of only the gravest crimes and then progresses. Then the groups committing the gravest crimes are identiﬁed. This is followed by an identiﬁcation of those who are the most dangerous in these groups.

The ICC in its ﬁrst case has indicted ﬁve military leaders of the Lord’s Resistance Army (LRA). They are described as being the persons most responsible. Other cases, including allegations against the government forces (UPDF) have not been the subject of indictment as the alleged conduct is not of the same gravity as the oﬀences of the LRA. Human Rights Watch reports that because any prosecutions conducted by the ICC will be limited to only a few oﬀenders, the Ugandan government must still pursue prosecutions of those violating Ugandan and international law, including crimes committed by the UPDF and LRA forces prior to July 2002.

4

The Strategy Being Developed for the Khmer Rouge Trials

In 1997, Cambodia sought the assistance of the UN in establishing a framework for the prosecution of those responsible for the atrocities committed by the Khmer Rouge. After lengthy negotiations, an Agreement was reached between the UN and the Government of Cambodia in July 2000. Pursuant to that Agreement, the Extraordinary Chambers in the Courts of Cambodia (ECCC) were established in 2004. In setting up the Extraordinary Chambers, those negotiating the agreement between the United Nations and the Cambodian Government, aware of the expense of the ICTY and ICTR, and the funding problems which beset the SCSL, decided to take no risks on a cost blow out. The formulation used to limit the scope of prosecutions was ‘the most senior leaders and those who were most responsible’. The scope of the Khmer Rouge trials was therefore limited both

62

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‘Part III: Keynote by ICC Chief Prosecutor Mr. Luis Moreno Ocampo’ in Report of the Proceedings of the Colloquium of Prosecutors of International Criminal Tribunals (Arusha, Tanzania, 25–27 November 2004) (emphasis added). Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda (2005). See Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (2001, amended in 2004), reproduced in Ang Vong, Minister of Justice (ed), Guide to Cambodian Criminal Law: Pre-Trial Phase (2005) 91. Article 2 sets out that:

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A Review of International Law Enforcement Strategies

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with regard to the gravity of the oﬀence and also by limiting ‘persons’ not only to leaders, but to the ‘most senior leaders’. As the Secretariat of the Task Force for the Khmer Rouge Trials has explained, the Cambodian government and the UN decided that the court should limit prosecutions to the senior leaders … who planned or gave orders, as well as those most responsible for committing serious crimes. It is expected that only a small number of people will fall within this limit and be tried by the Extraordinary Chambers.

The Secretariat explained further that ‘[l]ow level and middle-ranking Khmer Rouge members who are not most responsible for serious crimes will not be prosecuted’ as many are now ‘re-integrated into our society.’ Nor will there be ‘posthumous’ trials of those leaders who have since died. The ﬁrst trials are expected to take place in 2007, and the Extraordinary Chambers are expected to complete their mandate within three years. It is estimated that the cost of running the Extraordinary Chambers will be around us$60 million over three years (ie us$20 million per year). Jurisdiction is tied to the 1975-79 period, and given that the law is aimed at a restricted group, it is unlikely that there will be many trials before the Extraordinary Chambers. III

Conclusion

The pursuit of individual criminal responsibility for serious violations of international humanitarian law can be eﬀective in dismantling criminal enterprise and creating the conditions for peace and reconciliation. Contrary to critics’ claims, the results of the ad hoc tribunals and courts in the 1990s have had considerable eﬀect. In 1998 the UN General Assembly commissioned a detailed study into the eﬀectiveness and eﬃciency of the ICTY and the ICTR. While rec-

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Extraordinary Chambers shall be established in the existing court structure, namely the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognised by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. Secretariat of the Task Force for the Khmer Rouge Trials, An Introduction to the Khmer Rouge Trials (2nd ed, 2006). Ibid 6. Ibid 8. Ibid 18. GA Res 53/212, UN Doc A/RES/53/212, 18 December 1998; Report of the Expert Group to Conduct a Review of the Eﬀective Operation and Functioning of the International

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ommending a range of improvements, overall they found that they were operating with eﬃciency and eﬀectiveness. Further, the removal of Slobodan Milošević and Radovan Karadžić from power in Yugoslavia, and Kambanda and Bagosora in Rwanda, is a tribute to the eﬀectiveness of the ad hoc Tribunals. However, having regard to the emerging strategies outlined above, and comments about ‘International Justice Fatigue’, it seems unlikely that there will be international support for more than a few indictments in the future. Will this be suﬃcient to dismantle the criminal elements of the regime in Sudan, particularly Darfur, for example? Will it be suﬃcient to remove signiﬁcant impediments to peace and resettlement? Or is the budget more important? Some interesting comparisons have been made recently between the costs of international justice, and the costs of certain domestic prosecutions. For example, Professor Romano cites the Lockerbie trial (a trial involving two suspects and lasting for one year), whose ﬁnal bill is believed to be around us$80 million. Similarly, the Oklahoma City bombing investigation and subsequent trial cost us$82.5 million. Professor Romano also draws attention to the wider context in which some of these international courts and tribunals operate. For example, from 1992 to 1998, the international community spent between us$49-70 billion to end the conﬂict in the former Yugoslavia; the cost of the UN Mission in Sierra Leone was over us$2 billion; the cost of UNMIK over its ﬁrst four years of operation was us$1.5 billion; and the cost of UNTAET reached us$1.6 billion in mid 2003. He concludes, ‘[t]he budgets of international and internationalized criminal courts are just a fraction of what has been spent to end those conﬂicts.’ Recent approaches to limiting the personal jurisdiction of international courts and tribunals with reference to the types of perpetrators that can be apprehended fails to recognise the intricate nature of the prosecutor’s task and prevents a complex weighing of factors from taking place. This will only jeopardise the eﬀectiveness of the international criminal justice endeavour. The experiences of the diﬀerent mechanisms outlined above seem to indicate that a more nuanced approach than simply limiting personal jurisdiction is required. The development of coherent prosecutorial guidelines or strategies ensures the independence of investigators and preserves prosecutorial discretion, while allowing enough room for a more detailed approach than simply targeting those leaders who ‘bear most responsibility’.

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Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (11 November 1999) reproduced in UN Doc A/54/634, 22 November 1999. Romano, above n 41, 304.

Chapter 5 Justice Betrayed: Post-1945 Responses to Genocide Mark Aarons

I

Introduction

On 21 November 1945, in his opening statement to the International Military Tribunal in Nuremberg (IMT) in the case against the principal Nazi defendants, Justice Robert Jackson, Chief of Counsel for the United States, summarised the purpose of this unprecedented event in international law: The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, ﬂushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most signiﬁcant tributes that Power has ever paid to Reason.

Well before their victory in World War Two, the Allies had discussed what form of justice (or retribution) should be meted out to the Nazis upon their eventual defeat. Indeed, on 1 November 1943 – when victory still seemed very uncertain – the main Allied powers (Britain, the United States and the Soviet Union) had issued the Moscow Declaration, promising that the guilty among the Nazis and their collaborators would be pursued ‘to the uttermost ends of the earth’. Once apprehended, they would either be returned to the countries where they had committed their crimes or be dealt with by the Allies if they were part of the 1

2

United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (1947) Vol 2, 2nd day, 99. See also Robert Jackson, The Nürnberg Case (ﬁrst published 1947, 1971 ed). President Roosevelt of the United States, Prime Minister Churchill of the United Kingdom, and Premier Stalin of the Soviet Union, ‘Statement on Atrocities’ (Moscow, 1 November 1943) in United Nations Information Organisation (1945) 35. The other nation which participated in the Trial before the International Military Tribunal, France, was not present when the Declaration was made.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 69-97.

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senior German leadership and their crimes had no speciﬁc geographic location (having been committed in more than one country or consisting of the formulation and direction of policy that resulted in the commission of the crimes). Not everyone among the victorious nations favoured justice, with some advocating the commonly accepted approach of victors of that period: exacting arbitrary punishment and retribution on the civilian population of the vanquished through the imposition of reparations and forced labour to repair the harm done to the victors. British Prime Minister Winston Churchill would have preferred this approach, advocating that senior Nazis should be shot out of hand with no semblance of due process, whereas Soviet leader Joseph Stalin rather liked the idea of a trial that would indict the regime of his fellow dictatorial mass killer. The Allies ultimately decided upon what was at that time a unique experiment in international law. This would provide the Nazi leadership with what they had systematically denied their victims over the previous 12 years: a scrupulously conducted trial, detailing the case against them and substantiating it with volumes of documents and numerous witnesses, to which the defendants could mount a rigorous defence. Thus, Justice Jackson’s summation of the case against the senior Nazis seemed like a decisive break with the ethos of retribution that had traditionally characterised the behaviour of victors towards the vanquished. In this way, a new international framework for dealing with war crimes, crimes against humanity and crimes against peace would be created and a lasting precedent established. The eﬀect would be a warning to would-be tyrants and mass killers: the post-war international community would not tolerate the repetition of the Nazis’ crimes in occupied Europe and of their Japanese allies in China and South-East Asia. In the six decades since the Moscow Declaration, the failure of the Allies’ promise is demonstrated by a depressingly long list of war crimes and crimes against humanity that have not been prevented and, in many cases, have gone unpunished. While none has been on the scale of the Nazis’ racially and politically inspired crimes against Jews and other minority groups, prisoners of war, political dissidents and other civilians, or has sought to eliminate entire ethnic groups as an end in itself, the basic characteristics have been replicated time and again with the same horriﬁc consequences. 3 4

5

Ibid. See generally Mark Aarons, Sanctuary! Nazi Fugitives in Australia (1989) 45; Ann Tusa and John Tusa, The Nuremberg Trial (1984) 23–4. See, eg, Public Record Oﬃce, PREM 4/100/10, note by the Prime Minister, 1 November 1943, 1–4. The British views are well documented in B.F. Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (1982). See also Geoﬀrey Robertson, Crimes against Humanity: The Struggle for Global Justice (1999) 198. See Tusa and Tusa, above n 3, 23–4. See also Richard Overy, ‘The Nuremberg Trials: International Law in the Making’ in Philippe Sands (ed), From Nuremberg to The Hague: The Future of International Criminal Justice (2003) 1, 4–6.

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A survey of the second half of the 20th century in fact demonstrates the abject failure of the post-war community to deliver on Nuremberg’s promise to end once and for all the culture of impunity for mass crimes committed by states through their oﬃcials. Mass repressions and killings occurred throughout the communist world during the Soviet era: political purges and show trials featured throughout Eastern Europe under Stalin, including the infamous Soviet gulag; Mao Zedong’s purges in China in the early 1950s were followed by the Cultural Revolution in the 1960s and the massacre at Tiananmen Square at the end of the 1980s; and in Cambodia in the 1970s the Khmer Rouge murdered up to two million of their own people. These atrocities have been matched by those committed by Western backed or sponsored dictators or regimes, including the Indonesian occupation of East Timor; the ‘disappearances’ in Guatemala in the 1960s; and the torture and disappearances under General Pinochet in Chile, which were extended in Operation Condor by other military governments in South America (including Uruguay, El Salvador and Argentina). In addition, the 20th century has seen the suﬀering of civilians caused by the use of napalm in the Vietnam War; by apartheid in South Africa; and by Saddam Hussein’s regime in Iraq. And most recently, the international community has witnessed atrocities committed in Somalia by feudal warlords such as General Aideed; ethnic cleansing in Bosnia, Croatia and Kosovo; genocides in Rwanda and Darfur; as well as raging civil wars in many other countries. The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 established a fundamental moral framework in which to judge such mass crimes and a platform from which to develop further international human rights law and international humanitarian law. All too often, however, it has only been paid lip-service in practice, even though both domestic and international laws dealing with such crimes have indeed developed dramatically in the last six decades (notably through a series of conventions, such as

6

7

An excellent survey of many of these mass crimes can be found in Robert Gellately and Ben Kiernan (eds), The Specter of Genocide: Mass Murder in Historical Perspective (2003). See also Robertson, above n 4. GA Res 217A (III), UN Doc A/RES/217A (III), 10 December 1948.

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those dealing with genocide, wartime conduct, torture and hostage taking). Enforcement, investigation and judicial instruments have, however, lagged signiﬁcantly behind the ethical and legal framework. Indeed, it is noteworthy that only in the cases of the Rwandan genocide, the armed conﬂict in the former Yugoslavia, and the conﬂict in Sierra Leone have properly constituted investigatory mechanisms and international tribunals been established to pursue justice, in each case somewhat imperfectly. In 1998, the international community adopted the Rome Statute, which created the framework to establish the International Criminal Court (ICC). This historic step (which became a reality when the required 60 nations ratiﬁed the Statute in 2002) in eﬀect institutionalised the framework for international criminal justice, although it, too, is far from perfect, as will be discussed later in this chapter. Another striking feature of post-war developments is the repetition of the inter-

8

9

10

11

12

13

See, eg, Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). See, eg, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘Additional Protocol II’). See, eg, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘Convention against Torture’). See, eg, International Convention on the Taking of Hostages, opened for signature 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983) (‘Convention on the Taking of Hostages’). See generally Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (1997); Omer Bartov, Atina Grossmann and Mary Nolan (eds), Crimes of War: Guilt and Denial in the Twentieth Century (2002); Robertson, above n 4. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).

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national community’s errors, shortcomings and amoral policies that characterised Allied policy before, during and immediately after the Nazi era. II

Nuremberg Lessons

When most people think of Nuremberg they recall dramatic legal proceedings in which senior Nazis were tried by the Allies, most were found guilty, many hanged and the rest sent to prison for a very long time. That is, if they think about Nuremberg at all. That is the way most of us are taught about the Trial and that is the lasting impression: justice was done against some of the worst mass murderers in the history of modern civilisations. Others have labelled Nuremberg ‘victors’ justice,’ sometimes in an eﬀort to exculpate the Nazi leadership, compare the Allied victors to the criminal Nazi leadership and thereby revise history to portray the Nazis as ordinary nationalists who just wished the best for their people like other responsible leaders. Some have even proposed that many Allied leaders should have been tried for war crimes, too, citing the ﬁre-bombing of Dresden on 13 February 1945, the bombing of other German cities and the use of the atomic bomb on Hiroshima and Nagasaki on 6 and 9 August 1945, as examples of calculated criminal actions. Indeed, the proposition that Nuremberg was merely ‘victors’ justice’ has become more prevalent in recent years, curiously taking hold even in otherwise serious and scholarly works. Whilst the category of crimes known as ‘crimes against humanity’ was unknown prior to World War Two, the elements of such crimes are also those that constitute murder, torture, rape and other atrocities that are universally proscribed. It is perhaps hardly surprising, however, that the lofty intentions of the Moscow Declaration and the moral purpose so clearly enunciated by Justice Jackson at Nuremberg should have come to so little. After all, the Governments which ostensibly adopted these highly principled positions were hardly the paragons of virtue that they aggressively represented themselves to be to a war-weary world in the throes of euphoria at the end of the worst conﬂagration in history. Anne Applebaum, in her groundbreaking book Gulag: A History of the Soviet Camps, examines the history of the Soviet Union’s sprawling network of concentration camps known as the gulag. Applebaum is one such scholar who applies the term ‘victors’ justice’ to Nuremberg. In her view, the presence of Soviet judges on the IMT was something of an oddity, especially as these men ‘knew perfectly well that their own side was responsible for mass murder too’, including the notorious Soviet murders of Polish prisoners of war in Katyn Forest that had been uncovered only a few months before the Moscow Declaration. More fun14 15 16

McCormack and Simpson, above n 12, 5. See, eg, Anne Applebaum, Gulag: A History of the Soviet Camps (2003) 507. Ibid.

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damentally, however, her work demonstrates that Stalin’s system of mass repression and mass killings was operating without check at the very time the Allies signed the Moscow Declaration. Indeed, the number of innocent people swept into the gulag was actually on the increase by the time Nuremberg got underway and would in fact peak in the immediate period prior to Stalin’s death on 5 March 1953. The wave of mass repression unleashed by the Soviet Union’s occupation of most of Central and Eastern Europe was the main justiﬁcation used by the three Western partners of the wartime anti-Nazi alliance for the amoral recruitment of many of Hitler’s mass killers into the anti-communist cause after 1945. Whatever the excuses, history records that in the immediate post-war period Britain, France and the United States put numerous war criminals on the payroll of their intelligence services in obscene and largely futile operations to reverse the results of the war. Well before the Nuremberg Trial of the major Nazi leaders got under way, whole detachments of Nazi collaborators from the occupied territories of Central Europe (Yugoslavia, Hungary, Czechoslovakia, Romania etc) and Eastern Europe (Ukraine, Byelorussia, the Baltic states, Russia etc) had been rounded up and recruited by the West. Although many were known to have volunteered for service in the various police battalions that carried out the mass shootings of Jews, Romanies and others in their homelands and some had served as guards in concentration and death camps, they were utilised over the following years in various intelligence operations. Such operations included Operation Shrapnel by the British secret intelligence service and the American spy agency’s Pica network (oﬃcially named Project Huntington). They were mainly used as anti-communist guerrillas in their former homelands and as intelligence agents to assist Western operations to topple Stalin’s iron grip in the region. In this they were spectacularly unsuccessful, due in large measure to extremely eﬀective communist intelligence operations to penetrate the Nazi networks and Western intelligence, as well as Vatican intelligence which was assisting the operations. At the same time, Western intelligence also conducted intricate operations to hide accused war criminals from the Allied teams who were hunting them in order to bring them to justice. These same Western oﬃcials also collaborated with the Vatican to smuggle many of these mass killers to freedom in Argentina 17 18 19 20 21 22

Ibid. Mark Aarons, War Criminals Welcome: Australia, A Sanctuary for Fugitive War Criminals Since 1945 (2001) 134. Ibid 133-78. Ibid. Mark Aarons and John Loftus, Unholy Trinity: The Vatican, The Nazis and the Swiss Banks (revised ed, 1998) 265. Aarons, War Criminals Welcome, above n 18.

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and other South American nations and to illegally hide their true histories from Western immigration teams. As a result, each of the Western nations that launched signiﬁcant humanitarian immigration programs to relieve the misery of the millions of refugees in post-war Western Europe also welcomed large numbers of Nazi mass killers as citizens. Many were then promptly put on the payroll of the domestic counter-intelligence services in their adopted homelands. For the next 35 years, the Governments of the United States, Canada, Britain, Australia and New Zealand lied about the Nazis they had knowingly allowed to settle in their cities and towns. It was only when declassiﬁed intelligence and diplomatic ﬁles began to appear in the mid-to-late 1970s and 1980s and the media turned the spotlight on this nasty, dark corner of Western history that the truth ﬁnally emerged. As a result, belated eﬀorts were then undertaken to bring such people to justice, often with only superﬁcial success. Ironically, the United States – one of the prime instigators of the Cold War operations to recruit Nazi mass killers – was also the most successful in dealing with its Nazi war crimes problem. The success was due mainly to its use of immigration and denaturalisation laws following the Holtzman Amendment on 30 October 1978, rather than trying criminal cases. Canada at ﬁrst adopted the latter course with no success. This was demonstrated in R v Finta and R v Pawlowski. Since 1995 Canada switched to the former method, turning to the Criminal Code of Canada, the Citzenship Act, and the Immigration Act, all of which were amended in 1987. Regrettably this too had limited results. Britain managed one successful criminal case in R v Sawoniuk. Australia began with resolve to try alleged war criminals in its own courts and then the Government entirely abandoned the eﬀort as soon as the going got tough, leaving it as the only Western nation that delivered absolutely no justice to the hundreds of Nazis who settled there in the 1940s and 1950s. Even France, 23 24 25

26 27 28 29 30 31

32 33

Aarons and Loftus, Unholy Trinity, above n 21, 88. See, eg, Aarons, War Criminals Welcome, above n 18. In 1978 Congress amended the Immigration and Nationality Act, Pub L No 82-414, 66 Stat 163 (1952), codiﬁed as amended at 8 USC §§ 1101-1537 (2000), to exclude Nazi war criminals from all forms of immigration relief: Holtzman Amendment, Pub L No 95-549, 92 Stat 2065 (1978). [1994] 1 SCR 701. (1992) 13 CR (4th) 228 (Ont Ct Justice, General Division). RSC 1985, c c-46. RSC 1985, c c-29. SC 1994, c 31. Sharon A. Williams, ‘Laudable Principles Lacking Application: The Prosecution of War Criminals in Canada’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 151, 159-63. Ibid 151-70. [2000] 2 Cr App R 220.

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Italy and Franjo Tudjman’s Croatia showed more persistence in dealing with war crimes than Australia. This sad history of betrayal was perhaps inevitable in light of the confrontation that developed between communism and capitalism, between mass repression and democracy. As the Cold War sharpened, tensions between the former Allies in the second half of the 1940s, the eﬀort to bring Nazis to justice wound slowly down and then ground to a complete halt in the early 1950s. At this time, Western eﬀorts at denaziﬁcation in Germany and trials of accused war criminals descended into farce, as the building of West Germany was found to be impossible without pardoning and releasing many convicted mass killers. Eventually, the task was handed to the West Germans. The Germans have kept investigations going until today and have even recorded some important convictions. They have, however, shown much greater diligence and determination in trying collaborators who had mistreated their fellow German prisoners of war in Stalin’s gulag after the war. Indeed, in many instances Nazi investigations in West Germany were stymied by the fact that ex-Nazis occupied key positions in both the investigative and prosecution oﬃces, although this was by no means universal.

34

35

36 37

There are numerous books and reports detailing this history. See, eg, Aarons and Loftus, Unholy Trinity, above n 21; John Loftus, The Belarus Secret (1982); Aarons, War Criminals Welcome, above n 18; Sol Littman, War Criminal on Trial: Rauca of Kaunas (1998); Stephen Dorril, MI6: Inside the Covert World of Her Majesty’s Secret Intelligence Service (2000); David Cesarini, Justice Delayed: How Britain Became a Refuge for Nazi War Criminals (1992); Charles Ashman and Robert J. Wagman, The Nazi Hunters: The Shocking True Story of the Continuing Search for Nazi War Criminals (1988); Uki Goñi, The Real Odessa: How Perón Brought the Nazi War Criminals to Argentina (2003); Tom Bower, The Pledge Betrayed: America and Britain and the Denaziﬁcation of Post-War Germany (1982); Tom Bower, Klaus Barbie: Butcher of Lyons (1984); Tom Bower, The Paperclip Conspiracy: The Battle for the Spoils and Secrets of Nazi Germany (1987); Tom Bower, The Red Web: MI6 and the KGB Master Coup (1989); E.H. Cookridge, Gehlen: Spy of the Century (1972); Magnus Linklater, Isabel Hilton and Neal Ascherson, The Fourth Reich (1984); Christopher Simpson, Blowback (1988); United States, Comptroller General, Nazis and Axis Collaborators Were Used to Further US AntiCommunist Objectives in Europe: Some Immigrated to the United States (1985); Alti Rodal, Nazi War Criminals in Canada: The Historical and Policy Setting from the 1940s to the Present (1986). See, eg, I.A. Lediakh, ‘The Application of the Nuremberg Principles by Other Military Tribunals and National Courts’ in George Ginsburgs and V.V. Kundriavstev (eds), The Nuremberg Trial and International Law (1999) 263, 280. See, eg, Axel Marschik, ‘The Politics of Prosecution: European Approaches to War Crimes’ in McCormack and Simpson, above n 12, 65, 75. The famed Nazi-hunter, Simon Wiesenthal, experienced the West German justice system’s rather spotty record ﬁrst-hand during the 1960s. He records some of the difﬁculties and frustration in his book The Murderers Among Us (1967), and in Justice Not Vengeance (1990). On the trial of German prisoners of war, see Frank Biess, ‘Between Amnesty and Anti-Communism: The West German Kameradenschinder Trials,

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This abject failure to deal with known perpetrators who were easily at hand has been repeated time and again since 1945 in dealing with other mass killers. Indeed, there are numerous echoes of the Nazi era in post-1945 crimes against humanity, genocide, wars of aggression and war crimes. In analysing these, it is hard not to conclude that the international community – and the individual governments of which it consists – has learned very little from the Holocaust; at least very little of practical value. Although major progress has been made in developing both an ethical and legal framework over the last six decades to deal with these crimes, concrete eﬀorts to utilise this framework have been few and far between. International tribunals with both investigatory and prosecution powers were established for Rwanda, Sierra Leone and the former Yugoslavia (Bosnia, Croatia and Kosovo) in the 1990s and the permanent ICC came into formal existence in the early part of the new millennium. The framework to prosecute the remaining Khmer Rouge criminals was only ﬁnally agreed between Cambodia and the international community in 2007 because of Cambodia’s insistence that only its courts could try them. As this chapter was being ﬁnalised in May 2007 it seemed as though the ﬁnal impediments to the prosecution of the remaining senior Khmer Rouge oﬃcials have been overcome and belated justice may get underway in the near future. On the other hand, no action has been taken by the international community in many other cases, most notably in the instance of Indonesia’s major criminal actions in East Timor between 1975–99. III

Holocaust Lessons

There are a number of ways in which the shortcomings of the international community’s response to the Holocaust have been repeated in the following six decades. Although the areas dealt with here are not deﬁnitive, they indicate the inadequacies of the world’s responses to modern crimes against humanity. The main themes analysed here are: 1. What was known by the international community about the crimes, and when was it known? 2. What action was taken by the international community at the time the crimes were being committed to prevent their continuation? 3. What was done by the international community to apprehend the major criminals, investigate their crimes and bring them to justice in the immediate aftermath of the crime? 4. What was done by both the international community and individual governments to continue to track down, investigate and punish middle and lower

38

1948-1960’ in Omer Bartov, Atina Grossmann and Mary Nolan (eds), Crimes of War: Guilt and Denial in the Twentieth Century (2002). Gallately and Kiernan, above n 6.

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By analysing these themes it is possible to judge the eﬀectiveness of practical measures to ensure justice is dispensed in accordance with international and domestic laws designed to deal with the scourge of genocide and other crimes against humanity. The immediate post-war discussion about the Holocaust tended to focus on the administrative and technological eﬃciency of the Nazi state in planning and carrying out the vast enterprise of locating, concentrating and killing its millions of victims. It took several years before detailed attention was turned to an examination of the culpability of the rest of the world in standing by while the Nazis ﬁrst of all established the basic scheme of mass killing inside its own borders and then exported it to occupied Europe. In the last 35 years several groundbreaking studies have been published to answer the question of ‘who knew what and when’ about the Holocaust. Richard Breitman’s work, in particular, has demonstrated that Britain (and later its American ally) were fully aware of the details of the Nazis’ mass killings from the very beginning of the German invasion of the Soviet Union (Operation Barbarossa) on 22 June 1941 (indeed, even earlier, following the invasion of Poland on 1 September 1939). The British decrypts of German police radio traﬃc recorded almost every detail of the Judenaktionen (the mass killings of Jews) carried out by the Einsatzgruppen (the mobile killing units) which accompanied the German Army into Russia, the Ukraine, Byelorussia and the Baltic states. No publicity of these mass crimes on the Eastern front was undertaken, however. From Britain’s point of view, to do so would have revealed the secret of its decryption of the Nazis’ radio codes and destroyed the tactical advantage gained from this breakthrough; a lame excuse that has been repeated in similar circumstances by the technicians of electronic intelligence gathering, as will be seen. Moreover, nothing could have been done to stop these atrocities, in which hundreds of thousands of Jews, Romanies and communists were rounded up, taken to mass graves and shot. Britain was ﬁghting alone on the Western front (America only entered the war ﬁve months later) and the Soviets were on the retreat on every sector of the Eastern front. The industrialisation of mass killing in the gas chambers of Auschwitz, Treblinka, Sobibor, Belzec, Chelmno and other camps did, however, present 39

40 41

Walter Laqueur, The Terrible Secret (1981), Arthur D. Morse, While Six Million Died: A Chronicle of American Apathy (1983); Bernard Wasserstein, Britain and the Jews of Europe (1979); Martin Gilbert, Auschwitz and the Allies (1981). Richard Breitman, Oﬃcial Secrets: What the Nazis Planned, What the British and Americans Knew (1998). Ibid.

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a diﬀerent situation. The opportunities to at least disrupt these crimes existed from an early stage, indeed technically from as early as the second half of 1942, when privately even the most cynical and anti-Semitic Allied oﬃcials could no longer dismiss the accounts of the gas chambers. By 19 March 1944, when Hitler launched his last major operation to transport Hungary’s Jews to Auschwitz and certain death, the technical means existed to bomb the railway bridges en route and to destroy the gas chambers and crematoria. By then, the Allies had such superiority of technology and production that decisive action would surely have saved several hundred thousand innocent men, women and children from the horrors of Zyklon B. Indeed, the synthetic rubber factory at Auschwitz (known as Auschwitz III or Monowitz), for example, was bombed several times by the Allies, while the apparatus of mass murder in the adjoining facilities at Birkenau (Auschwitz II) was never targeted. The debate between the US War Refugee Board and the US War Department summed up the indiﬀerence and amorality of Allied policy towards the Holocaust. As the requests for action and persistent refusals went back and forth one man came to epitomise the stubborn oﬃcial line that war strategies were more important than saving lives. John J. McCloy, Assistant Secretary of War, was not a bigot, merely a banker, whose memos – which concluded that no bombs would be wasted on the killing machine at Auschwitz – read like an accountant’s balance sheet. Instead of American planes being deployed to stop mass gassings, they were directed elsewhere to destroy routine industrial targets. In the early 1950s, McCloy was the Commissioner of the US Zone of Occupied Germany who ordered the release of senior Nazis imprisoned in the war crimes trials. These included the commanding oﬃcers of notorious mass killing units, in some cases decades before their prison sentences were to expire. For example, in 1951 he pardoned key Nazi criminals including Alfred Krupp and Friedrich Flick. McCloy personiﬁed the continuity between inaction to prevent the crimes and the betrayal of the victims’ entitlement to justice against the perpetrators. Sadly, these same shortcomings can be observed in a number of mass crimes carried out in the post-war era. The case of Indonesia – and its genocidal ventures into East Timor (1975–99) and West Papua (from 1962) – is a good example. Similar themes could be drawn from the Khmer Rouge’s crimes in Cambodia (1975–79), the Balkan wars of the 1990s, the Soviet invasion of Afghanistan (1979– 42 43 44

45

Martin Gilbert, above n 39. See, eg, Letter by John McCloy, Assistant Secretary of War to John W. Pehle, Director, War Refugee Board, 18 November 1944. Accounts of McCloy’s career can be found in John Loftus and Mark Aarons, The Secret War Against the Jews: How Western Espionage Betrayed the Jewish People (1994); Arthur D. Morse, While Six Million Died (1968) 129. Morse, above n 44, 140.

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89), the Hutus’ mass killings of the Tutsis in Rwanda (1994), Pinochet’s mass repression in Chile (1973–90), and the ongoing slaughter of African Sudanese in Darfur by their Arab-dominated Government. Communism in Indonesia was a signiﬁcant force under Dutch colonialism and during Japan’s occupation of the archipelago from 1942–45. After the nationalists drove out the Dutch and Indonesia became independent on 27 December 1949, the already powerful Communist Party (PKI) grew rapidly. Over the next 15 years the PKI periodically exercised a degree of inﬂuence in the administration of President Sukarno, the leader of the anti-colonial ﬁght. American fears of the growth of a militant (and sometimes unstable) Indonesian nationalism under communist inﬂuence led to a series of US intelligence programs aimed at Sukarno’s overthrow and the defeat of communist power. By the mid 1950s, a number of covert operations were undertaken, working especially closely with militant Muslim groups. These involved creating US-inﬂuenced political parties and trade unions and ultimately, in 1958, a failed uprising known as the ‘Outer Islands Rebellion’. For the next seven years, massive US eﬀorts went into building up the anti-communist opposition, especially within the Armed Forces, but communist inﬂuence and power continued to increase. American operations demonised both Sukarno’s supporters and more particularly the communists, and were especially designed to arouse the increasingly militant Muslim student and youth groups. These eﬀorts eventually were successful on 1 October 1965, but only at the price of an orgy of mass killing that continues to scar Indonesian society. There is still considerable uncertainty about the events that precipitated the overthrow of Sukarno by a group of military oﬃcers led by General Suharto, who soon afterwards assumed the Presidency. Whatever the truth about an attempted communist coup d’etat, the Suharto-led army faction seized power and then carried out a series of mass killings throughout the country. Over the following months the killing campaign spread right through the archipelago, down to even the smallest villages, and left between 500,000 and one million dead and thousands more imprisoned under extraordinarily inhumane conditions in a network of concentration camps and prisons. The broad details of the mass killings – which were conducted with considerable cruelty, often including the dismemberment of living victims – were known to the world in real time. Indeed, reports by one of the CIA’s labour union specialists, Harry Goldberg, left little doubt at the time that the Americans not 46 47

Gallately and Kiernan, above n 6. Accounts of this can be found in Mark Aarons, ‘Intelligence Networks in SouthEast Asia’ in Kenneth J. McLeod and Ernst Utrecht, The ASEAN Papers (1979); David Ransom, ‘The Berkeley Maﬁa and the Indonesian Massacre’ in Ramparts (October 1970) Vol 9(1), 38; British Indonesia Committee, Repression and Exploitation in Indonesia (1974); Malcolm Caldwell (ed), Ten Years’ Military Terror in Indonesia (1975).

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only knew about the killings, but approved and even encouraged them. More recently, declassiﬁed intelligence records have established that encouragement went well beyond generalised support. In fact, the CIA actually compiled detailed lists of those it deemed dangerous and supplied them to Suharto’s forces who ensured that those so named were eliminated in the mass killing operations. One top secret CIA report summed up the bloodbath that went on for the next ﬁve months in this way: In terms of numbers killed, the anti-PKI massacres in Indonesia rank as one of the worst mass murders of the twentieth century, along with the Soviet purges of the 1930s, the Nazi mass murders during the Second World War, and the Maoist bloodbath of the early 1950s. In this regard, the Indonesian coup is certainly one of the most signiﬁcant events of the twentieth century, far more signiﬁcant than many other events that have received much greater publicity.

Needless to say, not only was the Western world entirely indiﬀerent to any notion of justice for the perpetrators of these crimes, but actually made them heroes. Suharto was treated as an honoured statesman and leader. His senior oﬃcers – many of whom had carried out the killings – were welcomed to military training schools and joint military operations in the West (especially in America and Australia) and vigorous defences were mounted of the necessity of the operations that had resulted in hundreds of thousands of deaths. Marshall Green, the US Ambassador in Jakarta at the time and long seen as one of the principal oﬃcials involved in encouraging the slaughter, has defended Suharto. Senior Western politicians such as former Australian Prime Minister Paul Keating have argued that Suharto had done South-East Asia a great favour by establishing his ‘New Order’ regime and eliminating the communist threat. Although hardly a family was left untouched in some direct or indirect way by the wave of mass killings, Indonesians were prevented from even discussing them until Suharto’s fall in May 1998 after more than 30 years of corrupt and brutal rule. While there has been some public discussion in the following years, 48

49

50

For the original report of the CIA’s role in compiling the names of prominent communists to be executed, see: Kathy Kadane, ‘Ex-Agents Say CIA Compiled Death Lists for Indonesians’, San Francisco Examiner (San Francisco, US), 20 May 1990; Kathy Kadane, ‘US Oﬃcials’ Lists Aided Indonesian Bloodbath in ’60s’, Washington Post (Washington DC, US), 21 May 1990. Further details can be obtained on the website of the National Security Archive . Central Intelligence Agency, Directorate of Intelligence, ‘Intelligence Report: Indonesia 1965, the Coup that Backﬁred’ (Washington, 1968), quoted in Tariq Ali, The Clash of Fundamentalisms (2002), citing Adam Schwartz, A Nation in Waiting (1999). Leslie Dwyer and Degung Santikarma ‘When the World Turned to Chaos: 1965 and Its Aftermath in Bali, Indonesia’ in Gallately and Kiernan, above n 6, 291.

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the events of 1965 and 1966 remain in a strange limbo within Indonesian society even today, leaving the massacres as a running sore infecting the health and development of the country. It was not surprising that a regime born in such bloodshed would in turn reproduce its basic character. The case of East Timor became the best known internationally during the UN-sponsored independence referendum on 30 August 1999, although the worst period of Indonesian mass killings and mass repression started on 7 December 1975 when Indonesia illegally invaded and then purportedly annexed the country. East Timor had been a sleepy, largely forgotten corner of the Portuguese Empire for almost 500 years. The western half had been part of the Dutch East Indies (except for a small enclave administered by the Portuguese). In the often illogical way in which European states decolonised their African, Asian and Latin American empires, West Timor had been incorporated into the Javanese-dominated archipelagic state of Indonesia in 1949. East Timor, however, remained a Portuguese colony. The situation remained relatively stable for the next 25 years until the fall of the Western-backed Caetano fascist dictatorship in Lisbon on 25 April 1974. Nationalism then bloomed rapidly in East Timor and some local factions took on a noticeably left-wing hue. The dominant force soon emerged as the Revolutionary Front of Independent East Timor (Fretilin). By the beginning of 1975, the Suharto regime was engaged in a subversive covert operation (Komodo, or Dragon), the aim of which was to destabilise local politics, subvert the decolonisation process and ultimately to incorporate the territory into Indonesia, by force if necessary. That operation was a clear violation of international law, which since at least 1945 has prohibited the acquisition of territory by force. Although international

51 52

53

Ibid 289-91. There are a number of accounts of Indonesia’s invasion and occupation of East Timor, including Mark Aarons and Robert Domm, East Timor: A Western Made Tragedy (1992); Mark Aarons, Correspondence in Quarterly Essay, (2001) 3; Carmel Budiardjo and Liem Soei Liong, The War Against East Timor (1984); Jill Jolliﬀe, East Timor: Nationalism and Colonialism (1978); Arnold Kohen and John Taylor, An Act of Genocide: Indonesia’s Invasion of East Timor (1979); John Taylor, ‘“Encirclement and Annihilation”: The Indonesian Occupation of East Timor’ in Gallately and Kiernan, above n 6; Michele Turner, Telling: East Timor Personal Testimonies 1942-1992 (1992); James Dunn, Timor: A People Betrayed (1983); Jose Ramos-Horta, Funu: The Unﬁnished Saga of East Timor (1987); Torben Retbøll (ed), East Timor: The Struggle Continues (1984); Noam Chomsky and Edward S. Herman, The Washington Connection and Third World Fascism: The Political Economy of Human Rights, Volume One (1980); John Martinkus, A Dirty Little War: An Eyewitness Account of East Timor’s Descent into Hell, 1997-2000 (2001). Charter of the United Nations art 2(4).

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law has not yet deﬁnitively formulated the elements of the crime of aggression, Operation Komodo and Indonesia’s subsequent actions in East Timor arguably constitute a ‘conspiracy to wage aggressive war’ and ‘crimes against peace’ in the sense ultimately established at Nuremberg. To achieve their territorial goal, Indonesian intelligence instigated a civil war in East Timor in August 1975, utilising the more conservative nationalist faction that was rapidly losing support among East Timorese. When Fretilin quickly won that battle, Indonesia stepped up its plans for invasion. In this Suharto was aided by the West, especially by Australian Prime Minister Gough Whitlam and by US President Gerald Ford in Washington. Indeed, on the eve of the December 1975 full-scale invasion (which was preceded by mini-incursions along the border with West Timor) Ford and US Secretary of State Henry Kissinger were on an oﬃcial visit to Jakarta. As they departed for Washington, their last message to Suharto was overt approval to proceed with what was to become one of the worst crimes against humanity in modern history. The Western-armed and trained Indonesian Army was expected to meet so little resistance that Ford and Kissinger were unconcerned that US weapons would be used – in deﬁance of congressional guidelines – in an illegal forcible incorporation of a European colony that was only partway through decolonisation. To the amazement of the Western world, the Fretilin-led units – armed with NATO-standard weapons taken from the Portuguese garrison and adopting classic hit-and-run tactics – gave the Indonesians a lesson in guerrilla warfare from which they would never fully recover. After taking the capital, Dili, with relative ease (although accompanied by several notorious mass killings) it took weeks for the Indonesians’ heavy armoured units to move even a few kilometres into the interior. As they did so, they carried out brutal mass killings against innocent civilians, many of whom initially believed they would be safe in their homes and villages. Naturally, this led to even more of the population retreating to the safety of the guerrillas’ strongholds in the rugged mountains. From these bases, Fretilin deﬁed the might of the Indonesian Army for the next three years and inﬂicted heavy casualties that humiliated Suharto and his generals. Jakarta’s response was to carry out even worse mass killings. The invaders rounded up thousands of civilians – mostly peasants who had previously lived on 54 55

56 57 58

Rome Statute, above n 13, art 5(2). See also Carrie McDougall’s chapter in this volume. See Charter of the International Military Tribunal, art 6, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279, art 6 (‘Nuremberg Charter’). See, eg, Taylor, above n 52, 177-8. The secret US documents on this can be obtained by visiting the website of the National Security Archive . Budiardjo and Soei Liong, above n 53, 15-36.

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their traditional lands – and erected a network of concentration camps in which starvation, torture and arbitrary executions were commonplace. For three years, Fretilin controlled most of the territory and much of the population, brieﬂy collapsing only when President Carter departed from his public commitment to human rights and supplied Suharto with sophisticated planes that dropped agent orange, napalm and phosphorous bombs on Fretilin’s guerrilla strongholds. This highly technological campaign was followed by concerted counter-insurgency operations that eventually resulted in the temporary collapse of the resistance at the end of 1978. During these three years, around one-third of the pre-war population was either killed by the Indonesian Army or died as a direct result of its deliberate policy of mass starvation and as a consequence of Indonesian military operations, a statistic comparable with the mortality rates of European Jewry under the Nazi regime. In the following 20 years, mass repression in East Timor was an everyday event. Indonesian military operations against the guerrillas in the mountains often utilised civilians as shields, which resulted in signiﬁcant casualties, although the guerrillas escaped more often than not. Indonesian occupation was characterised by regular mass killings, the uprooting of the civilian population and forced transfer to ‘protected hamlets’ (concentration camps), systematic cultural genocide, commonplace use of torture and executions of political prisoners and the rape and forced prostitution of women and young girls (especially to serve senior Indonesian Army oﬃcers). The world, however, is largely conscious of only two of these events. This is because the country was shrouded from outside scrutiny for much of the period, ﬁrst through an eﬀective Indonesian blockade of the country for the initial 15 years and then by careful stage-management and control of foreign visitors. The ﬁrst of these two events was the Dili massacre of 12 November 1991. The massacre of hundreds of East Timorese civilians by the Indonesian military in the Santa Cruz cemetery came to the world’s attention because it was ﬁlmed by a visiting TV crew for Yorkshire Television in Britain who were secretly making a documentary. Scenes of this mass killing were beamed around the world and aroused public opinion in favour of the East Timorese. Similar mass killings had been occurring since day one of the invasion, but this was a turning point because it was recorded for all to see. The second event that made East Timor an international issue was the Army-instigated and organised rampage of mass killings, forced deportations 59

The most extensive account of Indonesian crimes in East Timor can be found in the Report of East Timor’s Commission for Reception, Truth and Reconciliation (2006), also known as ‘Chega’. For a discussion of this Report, see the chapter by Annemarie Devereux and Lia Kent in this volume. 60 Max Stahl was ﬁlming his award-winning documentary ‘In Cold Blood’: see, eg, East Timor and Indonesian Action Network .

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and wanton destruction that followed the overwhelming vote for independence in August 1999. For many days, the heavily intimidated reporters and ﬁlm crews of the world media beamed out pictures of mass carnage. Some of the violence was even directed against UN workers who had been authorised to conduct the referendum and the civilians they were protecting. This brazen campaign of violence, often carried out by paramilitary units at the direction of the Indonesian Army, went on until the world ﬁnally insisted that the Indonesians withdraw and be replaced by an international peacekeeping force. At the end of its brutal rule, the Indonesian Army provided a veriﬁable and accurate picture of life for the East Timorese over the previous 24 years. The international community, however, knew what was happening throughout those years. Rather than publicising it, the evidence was covered up and the Suharto regime was regularly praised as a loyal Western ally in South-East Asia. Like the British intercepts of the mass killings carried out by the mobile SS and police units on the Eastern front in 1941, news of murderous campaigns in East Timor had secretly reached the world in real time via Australian signals intelligence intercepts received in Darwin, some 650 kilometres to the south of the action. Like the British intercepts, the electronic intelligence was shared with Australia’s closest allies, especially America and Britain, under formal arrangements for the sharing of signals intelligence among the Western alliance. Like the British intercepts of Nazi radio traﬃc, news of the mass killings was suppressed on the spurious grounds that to reveal Western knowledge would expose Australia’s mastery of the Indonesian radio codes. Attempts by supporters of East Timor to get the news out were, however, repressed by the Australian Government which closed down Fretilin’s oﬃcial two-way radio contact and broke up several clandestine operations to preserve contact through illegal radio stations. Over the entire period of Indonesian occupation (1975–99) the major Western nations not only suppressed the intelligence they had collected on the mass killings and mass repression, they actively aided and abetted the Suharto regime. For example, Patrick Daniel Moynihan has openly bragged about his role as US Ambassador to the UN in 1976 when he carried out Kissinger’s instructions to undermine eﬀorts to condemn the illegal Indonesian occupation and force withdrawal to allow decolonisation to proceed. In the following years, not only American politicians and diplomats but also those of Britain, Australia and other Western alliance members knowingly lied about the situation in East 61

62

The role of Australia’s Defence Signals Directorate (DSD) in intercepting Indonesian military radio traﬃc and breaking its codes has been reported widely. See especially Des Ball and Hamish McDonald, Death in Balibo, Lies in Canberra: Blood on Whose Hands? (2000); Jill Jolliﬀe, Cover-Up: The Inside Story of the Balibo Five (2001). Several former DSD and Australian Army oﬃcers have conﬁrmed to this author that a detailed account of Indonesian mass killings and other atrocities in East Timor was amassed by these intercepts over the entire period of the occupation. Daniel Patrick Moynihan, A Dangerous Place (1979).

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Timor. They minimised the evidence obtained by supporters of the resistance and adroitly manoeuvred to keep the whole question oﬀ the agenda of international forums. Throughout these years of repression in East Timor, Indonesia was continuously in breach of the fundamental right to self-determination. This was especially the case as Portuguese East Timor had the right of a colony to freely determine its political status in a plebiscite. Additionally, the people of East Timor had the right of any similar nation subject to military occupation by a foreign power to an act of free choice to determine the true wishes of the people without duress. The right to self-determination of the East Timorese was aﬃrmed by the International Court of Justice in 1995. The Court went further and asserted that the obligation to respect that right was binding upon all states, not just Indonesia. Despite this, the Western world not only campaigned diplomatically for the Indonesians and against the East Timorese, in one case (Australia) formal de jure recognition was extended to Indonesia’s illegal incorporation of the country as its 27th province. This was in the face of UN General Assembly Resolution 3485 and Security Council Resolution 384 (1975), which had called upon Indonesia to withdraw its forces from East Timor and upon all states to allow the East Timorese people to decide their own future in accordance with the principle of self-determination. Other members of the Western alliance provided at least de facto recognition. These actions were in breach of the international community’s obligations to ensure the peaceful decolonisation of Portuguese East Timor and not only rewarded Indonesian aggression but made these countries eﬀectively complicit in the war crimes and crimes against humanity carried out by the occupying forces. The complicity of the international community only got worse, however, when in 1999, after Suharto had fallen amid mass demonstrations of his own people, Indonesia ﬁnally agreed to a plebiscite to determine the wishes of the 63 64

Taylor, above n 56, 178-80. See, eg, Charter of the United Nations, art 1(2); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 1(3) (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3, art 1(1) (entered into force 3 January 1976). 65 (Portugal v Australia) [1995] ICJ Rep 90. 66 Ibid 103.  GA Res  (XXX), UN Doc A/RES/ (XXX),  December ; SC Res  (), UN Doc S/RES/ (),  December . 68 Taylor, above n 56, 185. 69 Jessica Howard, ‘Invoking State Responsibility for Aiding the Commission of International Crimes: Australia, the United States and the Question of East Timor’ (2001) 2 Melbourne Journal of International Law 1.

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East Timorese. Although conducted under the auspices of the UN, the occupying army was allowed to stay in place and eﬀectively intimidate the population in the months before the vote on 30 August 1999. During this period, the Indonesian Army organised and armed a number of vicious paramilitary units who kidnapped, tortured and murdered pro-independence activists, killed priests and nuns who were protecting the civilian population and attempted vote rigging on a huge scale. This was to no avail, as the East Timorese voted by a majority of 79 per cent for independence, prompting the outbreak of organised violence as discussed earlier. Subsequent investigations by the international community left no doubt that the crimes committed before, during and after the plebiscite had been co-ordinated, organised and ordered by the Indonesian Army from the highest levels, starting with the Defense Minister, General Wiranto. The militias, despite vehement Indonesian denials to the contrary, were nothing more than pliant tools operating at the whim and direction of Wiranto and his commanders all the way down the line to the various district commanders on the ground. Yet virtually nothing has been done by the international community to ensure that the criminals have been brought to justice. Although it is clear that a number of those who ordered and carried out the 25-year campaign of crimes against humanity and genocide are available to be investigated and prosecuted, the international community has systematically failed to act. The case for an international tribunal for East Timor operating on a similar legal basis as those established for the former Yugoslavia, Sierra Leone and Rwanda is unassailable. Yet there is no appetite by the permanent members of the UN Security Council for this course. The Western members (United States, Britain and France) found the opposition of many of Indonesia’s Asian allies (China actually threatened to veto any Resolution to establish a tribunal) a useful smokescreen behind which to hide their determination to prevent action. Instead, the Indonesians were given the opportunity to bring the criminals to justice themselves. Trials began in March 2002 but quickly descended into farce, even more than West Germany’s did in the 1950s and 1960s. Eighteen military oﬃcers and militia members were indicted and 12 of them were acquitted. Six rank-and-ﬁle death squad members were convicted and given token sentences (between 3-10 years) while their commanders remain immune. There was no indictment against General Wiranto, the former Commander of the Indonesian Armed Forces. The corruption of Indonesian justice was demonstrated clearly 70 71

72

Taylor, above n 57 180-1. See the Report of East Timor’s Commission for Reception, Truth and Reconciliation, above n 59, for a detailed account of the control of the militias by the most senior oﬃcers of the Indonesian Army. See, eg, Sylvia de Bertondan, ‘East Timor: Trials and Tribulations’ in Cesare P.R. Romano, Andre Nollkaemper and Jann K. Kleﬀner, Internationalized Criminal Courts

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by General Wiranto’s emergence as a serious contender in the 2004 Indonesian Presidential election. This betrayal of justice by the international community has been compounded by its virtual silence at the repetition of the East Timor crimes since 1999. Many of the same Army and paramilitary commanders responsible for those crimes have re-emerged as the organisers and perpetrators of new mass killings elsewhere in the archipelago. These include, most notably, the vicious war against separatist Muslim rebels and their civilian supporters in Aceh (only resolved with an ‘autonomy’ agreement after the December 2004 tsunami devastated the island, making military operations virtually impossible) and the ongoing mass repression against the brave but isolated West Papuan independence movement that represents the overwhelming majority of the indigenous people. The latter, in particular, also illustrates the longstanding corruption of the principles of the UN Charter and of Nuremberg by the international community. Like their neighbours in the now independent eastern side of the island (Papua New Guinea), the West Papuans are Melanesians with little in common with the Javanese-dominated Indonesian Republic. Historically a Dutch colony, West Papua did not join Indonesia in 1949. In 1962, however, President Kennedy insisted that the Dutch yield to the Indonesians in the preparation of the colony for a UN-sponsored act of self-determination. Unsurprisingly, the Indonesians had no intention of allowing this to take place fairly. President Sukarno, followed by his mass killer replacement Suharto, were determined to ensure West Papua joined Indonesia permanently by whatever means this took. Over the following seven years, instead of preparing the country for a plebiscite, the West Papuans were systematically repressed and eventually allowed only a sham vote. Rather than a free vote of the whole population, 1022 handpicked ‘civic leaders’ voted in 1969 to join Indonesia under the ‘see nothing, hear nothing, say nothing’ monitoring of a corrupt UN observer mission. When two leaders of the pro-independence faction (which would undoubtedly have won a properly conducted free vote) tried to reach New York to tell the UN the truth, the Australian rulers of next door Papua New Guinea prevented them from catching their plane. A recently released US diplomatic report suggested that up to 90 per cent of West Papuans would have opted for independence in a free ballot at that

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74 75

and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (2004) 93-4. An account of the story of West Papua can be found in David Robie, Blood on their Banner: Nationalist Struggles in the South Paciﬁc (1989). See also John Martinkus, ‘Paradise Betrayed: West Papua’s Struggle For Independence’ (2002) 7 Quarterly Essay. Robie, above n 73, 58. Ibid 58-60.

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time, but Washington joined Canberra in being complicit in what amounted to at best a sham poll, and at worst an illegal act of incorporation.  Since then, the independence movement has waged an unequal struggle against the Indonesian occupiers who have carried out numerous mass killings and disappearances, as well as imprisoning and torturing political prisoners. They have also allowed a rapacious multinational corporation to operate the environmentally destructive Freeport copper and gold mine and exploit the natural wealth of the nation with little or no return to the Papuans. Only the corrupt military leadership in Jakarta has genuinely beneﬁted from this and other foreign activities in the country. The international community has, however, learned nothing from its acquiescence in Indonesian crimes in East Timor. For a very short period, Suharto’s replacement, President Wahid, allowed the West Papuans to express their nationalism and a charismatic leader, Theys Eluay, emerged as a champion of his people. Like the resistance led by Xanana Gusmão in East Timor, it seemed that the independence movement – which asks only that a properly conducted act of selfdetermination ﬁnally be held – would become both a domestic and international force. Remembering the lessons of Xanana – who became a worldwide symbol of his people’s cause from his prison cell in Jakarta and then became East Timor’s ﬁrst President – the Indonesian Army had Eluay murdered on 10 November 2001 before he could reach such a status. A new round of mass repression was soon launched by many of the same men who had carried out the mass crimes in East Timor. Yet the international community has done little more than ritually wring its collective hands and – reminiscent of East Timor – make pompous pronouncements about the West Papuan carnage being an internal Indonesian aﬀair requiring better handling by men they already know to be incapable of restraint or respect for human rights. Worse, the world seems determined to ignore the obvious inadequacies – even illegality – of the so-called ‘internationally-supervised act of free choice’ which resulted in West Papua’s annexation by Indonesia. In short, the international community has learned nothing from its horrible mistakes in East Timor and continues to recognise what it refers to as ‘the territorial integrity of Indonesia’ while turning a blind eye to the mass killings that continue in West Papua. Surveying the last 40 years of Indonesian history, one factor stands out to explain the world’s indiﬀerence to the mass killings, repression and related crimes committed by Suharto and his successors: they were committed anti-communists. As a result, Indonesia was considered a loyal regional ally of the US-led Western 76

National Security Archive, Indonesia’s 1969 Takeover of West Papua Not by ‘Free Choice’ (2004) ; Report from US Ambassador to Indonesia .

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alliance and this ensured that not only was a blind eye turned to its crimes, but overt and covert protection was extended by Washington and its closest friends. Similar ideological and practical considerations have dominated other modern examples of major crimes against humanity. In the case of Cambodia, the communist world – and especially China – defended the Khmer Rouge and its policies between 1975–79 when it murdered almost two million of its own citizens, mostly so-called ‘bourgeois’ elements from the larger cities and towns, but also many ordinary peasants. The West rightly condemned these communist mass killings and denounced the Khmer Rouge as a gang of cut-throats. However, when Vietnam lost patience with the Khmer Rouge’s persistent border provocations and its murder of minority Vietnamese in Cambodia and intervened militarily to force Pol Pot from power, the West – led by the US – insisted, incredibly, that the murderers should take Cambodia’s seat at the UN. Indeed, the West continued to recognise the Khmer Rouge as the legitimate Government of Cambodia for the following decade. As this is being written, the long-stalled eﬀort to establish a belated tribunal to try surviving Khmer Rouge leaders appears to have been ﬁnally concluded and the handful of surviving senior communist oﬃcials who directed the mass killings appear set for trial over the next few years. The collapse of Yugoslavia in the early 1990s in the face of Slobodan Milošević’s calculated campaign to dominate the delicately balanced federation and the consequent unleashing of the nasty underside of both Serbian and Croatian ethno-nationalism also exposed the betrayal of justice by the international community. First the world tried to deny the Croats, Slovenes and Bosnians their constitutional right to secession and self-determination and force them to remain in an unjust Yugoslav state. Then the international community stood by while Milošević’s superior Army and well-organised militias committed some of the worst crimes against humanity since the Nazi era. The response of Croatian President Franjo Tuđman revealed that he was merely the Croatian side to a single Balkan coin, which had Milošević’s face on the other side. 77 78

See, eg, Craig Etcheson, ‘The Politics of Genocide Justice in Cambodia’ in Romano, Nollkaemper and Kleﬀner, above n 72. There are many excellent accounts of the collapse of Yugoslavia and the crimes against humanity committed by all sides. See, eg, Peter Maass, Love Thy Neighbour: A Story of War (1996); Viktor Meier, Yugoslavia: A History of its Demise (1999); John R. Lampe, Yugoslavia as History: Twice There Was a Country (2000); Tony Weymouth and Stanley Henig (eds), The Kosovo Crisis: The Last American War in Europe? (2001); Branka Magaš, The Destruction of Yugoslavia: Tracking the Break-Up 1980-92 (1993); Slavenka Drakulić, Balkan Express: Fragments from the Other Side of War (1993); Slavenka Drakulić, How We Survived Communism and Even Laughed (1992); Slavenka Drakulić, They Would Never Hurt a Fly: War Criminals on Trial in The Hague (2004); Michael A. Sells, The Bridge Betrayed: Religion and Genocide in Bosnia (1998); Misha Glenny, The Fall of Yugoslavia (1996); Michael Parenti, To Kill a Nation: The Attack on Yugoslavia (2002); Adam Le Bor, Milošević: A Biography (2003); Laura Silber

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Yet Britain and France covertly supported the Serb cause while Germany and later the United States followed suit for the Croats. Almost everyone – except violent and fundamentalist Middle Eastern Muslims – abandoned the Bosnian Muslims to their fate, as they did the Albanian Kosovars (also Muslims) a few years later. Abandoned, that is, until the pictures of the Serb concentration camps and of the daily devastation of Sarajevo embarrassed the world so much that the UN was forced to establish the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. The UN Security Council determined that there existed a threat to international peace and security and therefore invoked its powers to preserve peace under Chapter VII of the UN Charter. Much to the consternation of the diplomats – many of whom secretly wished it to fail – this Tribunal has indicted and successfully prosecuted senior criminals from all sides of the conﬂict, as has its sister tribunal for Rwanda, although somewhat less spectacularly. Predictably, success has not been all that warmly welcomed by the diplomats of the major Western nations. In early 2004, the ICTY came under mounting pressure, having had its budget and staﬀ cut dramatically as a result of US and British initiatives at the end of 2003, supported by other members of the Western alliance, including Australia. The number of investigations – and hence prospective prosecutions – were drastically curtailed and the international eﬀort is, it seems, to be wound up as quickly as possible and with the job only part done. Yet again, Western policy towards Nazi prosecutions echoes down through the decades to today, although in the last few years the Western nations have applied both some pressure and devoted some resources into having the successor states to the former Yugoslavia (Serbia, Croatia and Bosnia) take over some outstanding cases. Indeed, some of these have been conducted satisfactorily in those national courts and even some additional local cases have been launched, although there are undoubtedly both self-interested political and economic explanations for this relatively new approach, especially on the part of Serbia and Croatia. IV The International Criminal Court and the Future The ﬁrst step towards a systematic framework to rectify the past six decades of indiﬀerence was ﬁnally taken in Rome on 17 July 1998. The decision of the

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and Allan Little, The Death of Yugoslavia (1996); Tim Judah, The Serbs: History, Myth and the Destruction of Yugoslavia (1997); Dušan Bjelić and Obrad Savić, Balkan as Metaphor: Between Globalization and Fragmentation (2002). Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to SC Res 827 (1993), UN Doc S/RES/827 (1993), (adopted 25 May 1993, as amended 19 May 2003) (‘Statute of the ICTY’). SC Res 827 (1993) stated that ‘… an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’: UN Doc S/ RES/827 (1993), 25 May 1993.

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international community to establish a permanent International Criminal Court to investigate and prosecute crimes against humanity, genocide, war crimes and aggression was a historic, if ﬂawed, signal of continuity between Justice Jackson’s statements at Nuremberg and the modern world about to enter the 21st century. Unfortunately, much of the debate at the conference leading to the Rome Statute was consumed by eventually unsuccessful eﬀorts to convince the world’s remaining superpower – the United States – to sign up for the ICC. Numerous compromises were made to meet US demands that its national interest should always be paramount. In particular, the Senate was insistent that US soldiers would never – under any circumstances – be subjected to ‘unwarranted’ prosecutions by the ICC. In light of Washington’s refusal to bring to justice its own troops involved in war crimes (especially in Vietnam and Korea), this position is itself a powerful argument in favour of an all-encompassing international tribunal. In the end, Washington refused to participate in the Court’s work even after it had extracted concessions that render the new Court far less powerful and independent than it should be. In eﬀect, although not explicitly, the United States maintains its long-held position that it is above international law. Despite this setback, the required 60 nations formally committed to the establishment of the ICC in the ﬁrst half of 2002 and it oﬃcially came into existence on 1 July 2002. As of writing, 104 nations have now ratiﬁed the Rome Statute, but the world is yet to see just how eﬀective its structure and functioning will be, as there are several other shortcomings that may well adversely aﬀect its long-term success. The major problem is the Court’s lack of independence. As currently structured, there are signiﬁcant limitations on the court’s jurisdiction. Although three individual nations have referred matters to the ICC since July 2002 (Uganda, the Democratic Republic of Congo and the Central African Republic), in cases where a nation refuses to ‘self-refer’, the ICC is almost wholly dependent on the Security Council to refer matters for investigation and prosecution by Resolution under Chapter VII of the UN Charter. By providing this mechanism as the main vehicle for the Court’s work this, in eﬀect, provides the major powers (United States, Russia, Britain, France and China) with the power to veto prosecutions of their favourite mass murderers. As currently established, for example, it is most unlikely that a proposal to investigate and prosecute Indonesia’s current campaign of crimes against humanity in West Papua would survive China’s veto (or even the United States’, whose corporations grow wealthy from enterprises

 82 83 84

Rome Statute, above n 13, art 126. A full discussion of the problems of the Court can be found in Robertson, above n 4, Chapter 9. Rome Statute, above n 13, art 13(a). Ibid art 13(b).

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such as the Freeport mine). Predictably, Indonesia opposed the establishment of the ICC at all. The other major avenue through which the Court can instigate proceedings requires either the referral or the consent of the country of which the accused is either a national or in which the crimes were committed. Clearly, Indonesia (and similar pariah states) will never consent to hand over major criminals such as General Wiranto, let alone acknowledge the Court’s jurisdiction over continuing crimes against humanity. East Timor, as a sovereign state, could refer international crimes committed by Indonesian functionaries on East Timorese territory to the ICC but this would not apply to crimes committed before 1 July 2002 (see below). This absence of universal jurisdiction renders the Court a virtual client of the Security Council and the goodwill of the individual members of the international community. As most civilised members of that community do not commit crimes against humanity, that leaves those who do, most of whom will never accept the Court’s jurisdiction while they are ruled by despots inclined to use mass repression, torture and mass murder as the instruments of their state power. The Court can initiate its own proceedings, but only through a highly circumscribed power that permits the Prosecutor to do so following authorisation by a Pre-Trial Chamber. Even this is limited, as the Prosecutor may only conduct preliminary analysis and collection of evidence prior to such authorisation, in eﬀect hamstringing the ability to mount the case. The ultimate power of veto by the Security Council negates even this limited power of independence: no investigation or prosecution can be commenced for 12 months if the Security Council so resolves under Chapter VII of the UN Charter (this would require the concurrence of all ﬁve permanent members – the United States, Russia, Britain, France and China). Such a resolution can be renewed every 12 months, eﬀectively giving the Security Council a veto power over whether cases can ever proceed even if the court has procured suﬃcient prima facie evidence. In other words, the members of the Security Council can prevent an investigation or trial for any reason that suits the majority. Mass killers can eﬀectively be shielded through either common self-interest or by trading oﬀ the interest of diﬀerent nations or blocs of nations to protect their favourite mass killers. The ICC can therefore be simply prevented from properly carrying out its work by the UN Security Council. In eﬀect, this allows the major powers (especially the permanent members) and their closest allies to frustrate justice.

85 86 87 88 89

Ibid art 14. Ibid art 15(3), (4). Ibid art 15(1), (2). Ibid art 16. Ibid.

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Two further restrictions on the Court limit its operations and the suspects who can be brought before the Court. The ﬁrst concerns the nature of the crimes and criminals who appropriately can be brought to trial, while the second concerns the fact that the ICC’s ratione temporis jurisdiction is limited to crimes committed on or after 1 July 2002 when the Statute came into force. Both of these leave considerable gaps through which thousands of criminals can drive their get-away cars. If these shortcomings are not addressed at a domestic level by civilised nations, the search for justice will be hampered for quite some time. Quite properly, the ICC will only concern itself with the senior criminals responsible for major crimes against humanity, genocide and war crimes. These are deﬁned by the Statute that established the Court in such a way as to ensure that even middle-ranking criminals are unlikely to be brought before the Court, let alone the thousands of rank-and-ﬁle mass killers without whom the crimes could never have been carried out. This leaves the middle and lower levels free to live their lives, either in the countries where they committed their crimes or, often, in new countries to which they have emigrated, hidden among the refugees and survivors of the crimes. The Western world, in particular, continues to provide a major bolt hole for mass killers. In Australia (the country with which this author is most familiar) there is powerful evidence indicating that mass killers from almost every modern conﬂict have slipped into the country over the past 30 years. These include: – Senior military and intelligence oﬃcials of the former Soviet client administration in Afghanistan. – Oﬃcials who ran concentration camps under the Khmer Rouge’s brutal regime in Cambodia. – Oﬃcers who served in Soviet-controlled intelligence services in Central and Eastern Europe. – Oﬃcers of Pinochet’s notorious DINA security service in Chile. – Serbs and Croats who participated in the ‘ethnic cleansing’ campaigns of the 1990s in Bosnia and Croatia. It is certain that countries such as the United States, Canada, Britain and France have similar enclaves of war criminals living in the communities of survivors and victims of these and other conﬂicts who have sought refuge over the past 30 years. 90 91 92 93 94 95 96

Ibid art 5(1). Ibid art 12. Ibid arts 11(1), 24(1). Ibid art 7. Ibid art 6. Ibid art 8. Robertson, above n 4, 309-18.

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In recent years, there has been an international tendency to deal with such problems as though they were immigration matters, not fundamental legal issues requiring domestic legislation to ensure the proper investigation and prosecution of such criminals wherever they have found sanctuary. Until every civilised country has domestic laws to achieve this and devotes suﬃcient resources to implement these statutes, Justice Jackson’s declaration that Nuremberg was primarily concerned to prevent the repetition of the Nazis’ crimes will continue to ring hollow. The creation of the ICC, however, provides a framework in which this problem can be addressed, at least prospectively. In Australia, for example, the legislation implementing ratiﬁcation of the Rome Statute imports the crimes covered by the international court into Australian law and allows Australian courts to hear cases against accused mass killers if they are present on Australian soil and committed their crimes after 1 July 2002 (the date on which this law became eﬀective). This does not address the issue of retrospectivity and leaves a signiﬁcant group of perpetrators of grave international crimes free to continue their lives in Australia with impunity and without fear of justice. In the last decade, signiﬁcant debates have occurred in all Western nations which operate humanitarian programs to assist refugees from major civil and international conﬂicts. Much of the recent focus has been on the determination of governments to ‘take control’ of immigration programs and only accept ‘genuine’ victims of war and civil unrest. Too often this has been code for rejection of refugees from countries such as Afghanistan and Iraq on the grounds of race, religion and culture, a factor much exacerbated by the crimes against humanity carried out by international Muslim terrorist organisations loosely grouped around or inspired by Osama bin Laden’s al-Qai’da network. These include Kenyan, Tanzanian and Indonesian atrocities that occurred before and after the 11 September 2001 attacks in New York and Washington. Shutting out the victims of terrorism and other mass crimes from refugee status can only at best be a temporary expedient. The only eﬀective long-term solution to the creation of successive waves of refugees is to prevent these crimes from occurring in the ﬁrst place. This means, in part, bringing the perpetrators to justice as swiftly as possible after their crimes have been carried out. Yet the ICC has no speciﬁc jurisdiction over grave crimes of international terrorism, as deﬁned in the major anti-terrorist conventions, although attacks such as 11 September 97 98

99

International Criminal Court Act 2002 (Cth); International Criminal Court (Consequential Amendments) Act 2002 (Cth). For a detailed account of the Australian legislative framework see Timothy L.H. McCormack, Australia’s Legislation for the Implementation of the Rome Statute, in Matthias Neuner (ed), National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (2003) 65-82. Convention on Oﬀences and Certain Other Acts Committed on Board Aircraft, opened for signature 14 September 1963, 704 UNTS 219 (entered into force 4

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would arguably be covered under the deﬁnition of crimes against humanity in art 7 of the Rome Statute. The United States has, instead, opted for the drumhead justice of military tribunals after suspects have been incarcerated for several years without charge or proper access to legal advice at Guantánamo Bay in Cuba. The world will know that Justice Jackson’s dream has become reality when all crimes against humanity are treated equally and impartially by a truly independent international court with the power to carry out its work regardless of whether the alleged crimes were committed by the mightiest superpower, the tiniest island state or an international terrorist network. We will know this has been achieved when this court has the necessary moral, legal and ﬁnancial support of all the major powers that make up the international community. We will be sure that this is sincere when all those leading nations not only support that court but actively pursue the many war criminals residing within their own jurisdictions. The world has come some considerable way down the road since Nuremberg. There is, however, still much more to be done before the scales of international December 1969); Convention on the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, 10 ILM 133 (entered into force 14 October 1971); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977); International Convention against the Taking of Hostages, above n 11; Convention on the Physical Protection of Nuclear Material, opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature 24 February 1988, 1589 UNTS 474 (entered into force 6 August 1989); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992); Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998); International Convention for the Suppression of Terrorist Bombings, opened for signature 15 May 1997, 2149 UNTS 256 (entered into force 23 May 2001); International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 December 1999, 39 ILM 268 (2000) (entered into force 10 April 2002); International Convention for the Suppression of Acts of Nuclear Terrorism, opened for signature 13 April 2005, UN Doc A/RES/59/290 (entered into force 7 July 2007). 100 For a discussion of this issue, see P.J. Wertheim, ‘Should “Grave Crimes of International Terrorism” Be Included in the Jurisdiction of the International Criminal Court?’ (2003) 22 Policy & Society: Journal of Public, Foreign and Global Policy 1, 7.

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justice are truly balanced and the victims – past, present and future – can be sure that a framework exists that will not only bring justice, but will actively discourage the repetition of these monstrous crimes.

Part Three Nuremberg and the Development of Substantive International Criminal Law

Chapter 6 Contributions of the Nuremberg Trial to the Subsequent Development of International Law Michael J. Kelly and Timothy L.H. McCormack*

I

Introduction

The Nuremberg Trial has profoundly inﬂuenced the subsequent development of international law in a number of ways – two of which we highlight in this chapter. The higher proﬁle area of the two is international criminal law where Nuremberg dominates the landscape of that subject area. Perhaps less conspicuously but nonetheless signiﬁcantly, the Nuremberg Judgment has also made a prodigious contribution to the development of the law of military occupation. In an intriguing coincidence with this auspicious 60th anniversary, the impact of Nuremberg on the contemporary interpretation and application of both areas of international law is arguably more keenly apparent that at any stage since the Trial concluded. Our intention in this chapter is to identify and brieﬂy analyse the articulation of relevant legal principles by the International Military Tribunal (IMT) at Nuremberg and to explain some of the ways in which those same pronouncements are now being applied: in international criminal law by a proliferation of international, hybrid and national courts, including by the United States Supreme Court in relation to the proposed trial by military commission of some of those detained at Guantánamo Bay Naval Base, Cuba; and in relation to the law of military occupation, particularly in the context of the Coalition occupation of Iraq. It would be misleading to create an impression of unqualiﬁed celebration of the 60th anniversary of Nuremberg – as if the Trial is impervious to dissent. The establishment of the Tribunal and the approach of the judges to procedure as well as to substantive law have all been subjected to sustained criticism. The persistent allegation of ‘victors’ justice’ is so entrenched that it has produced a simplistic view that war crimes trials are only ever selectively imposed on the losing side. It is true that both the Nuremberg and Tokyo Tribunals were established by the winning side in World War Two and imposed on the vanquished. There was never *

The views expressed in this chapter are entirely those of the authors and are in no way intended or claimed to represent the views of any government or agency.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 101-129.

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any suggestion that Allied nationals would be subject to the same Tribunals, the same subject-matter jurisdiction, or the same procedure as defeated German and Japanese defendants. However, it is wrong to assume that the victorious Allies failed to prosecute any of their own nationals for alleged war crimes. ‘Victors’ justice’ is often used as a disparaging label to characterise a lack of Allied willingness to hold their own nationals criminally accountable. That characterisation is fallacious. Allied nations did undertake disciplinary proceedings against their own servicemen and women for alleged violations of the law of war. The US, for example, tried hundreds of its own personnel, including for violations of the law committed against the civilian populations of various areas they occupied. Many of those US nationals convicted of violations were awarded severe sentences and a signiﬁcant number were sentenced to death and subsequently executed. Nuremberg has also been criticised for retrospective application of international criminal law in violation of the fundamental principle of nullem crimen sine lege. That particular criticism will be considered in some detail below. Despite continuing criticism, the signiﬁcance of the contribution of the Nuremberg Trial is indisputable. Our intention is not so much to defend the Nuremberg Judgment but to critique selected aspects of it in order to oﬀer our own assessments of some particular legacies of the Trial. II

Nuremberg and the Development of International Criminal Law A

Individual Criminal Responsibility at International Law

The Nuremberg Tribunal was the ﬁrst international criminal tribunal to try individuals for their alleged violations of international law – a breakthrough Elizabeth Zoller describes as ‘certainly a major departure from classical international law’ in the sense of the previously unprecedented experience of individuals as subjects of the international legal system. The principle established at Nuremberg is best encapsulated in the oft-cited words of the Judgment that ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’. This fundamental principle of individual criminal 1

2 3

4

Gerry J. Simpson, ‘War Crimes: A Critical Introduction’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 5. See, eg, Stephen Ambrose, Citizen Soldiers: The US Army from the Normandy Beaches to the Bulge to the Surrender of Germany June 7, 1944 – May 7, 1945 (1997) 342-4. Elizabeth Zoller, ‘The Status of Individuals under International Law’ in George Ginsburgs and V.N. Kuriadtsev (eds), The Nuremberg Trial and International Law (1990) 101. United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1

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responsibility has since become an unassailable foundation of international criminal law. It is hardly surprising then that Nuremberg, as the ﬁrst champion of the principle of individual criminal responsibility for violations of international law, retains an exalted status. The aura of Nuremberg is only enhanced, of course, by the seniority of those tried and the nature of the atrocities they committed. Nuremberg was far from the only post-World War Two war crimes trial and was followed by many subsequent trials. Relative to the numbers of people that were actually tried by the Allies in the aftermath of the war, 22 defendants at Nuremberg is an insigniﬁcant number. The Tokyo Tribunal tried 29 Japanese defendants but even the combined number of defendants before both the Nuremberg and Tokyo Tribunals pales into insigniﬁcance compared to the thousands of defendants at the so-called ‘subsidiary’ trials. Australian military tribunals alone, for example, established pursuant to the War Crimes Act 1945 (Cth), undertook more than 300 trials involving over 800 Japanese defendants. That particular episode of our national legal and military history is too littleknown in this country. Nor was Nuremberg the ﬁrst time an international criminal trial had been proposed. In the aftermath of World War One there was substantial discussion about the establishment of Allied tribunals to deal with those leaders from the defeated Powers allegedly responsible for the waging of war and atrocities committed during the war. Each of the separate peace treaties imposed upon the defeated Northern Powers contained the same two pro forma provisions allowing for such tribunals. Those trials and tribunals never materialised and instead, controversially, Germany and the Ottoman Empire were allowed by the victorious Allied nations to try some of their own nationals under domestic rather than international law. The depth of resentment by many within Allied nations at the perceived inadequacies of the German and Ottoman trials postWorld War One was a catalyst for ensuring that the same experience did not

5

6 7

8

October 1946 (1947) Vol 22, 217th day, 466 (‘Trial of Major War Criminals’). For an authoritative overview of many of the trials, see the 15-volume work by the United Nations War Crimes Commission entitled Law Reports of Trials of War Criminals (1947-49). For more detail on this topic, see Michael Carrel’s chapter in this volume. See, eg, Timothy L.H. McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 46-7. For a brief summary of the Leipzig and Istanbul Trials, see Timothy L.H. McCormack, ‘Their Atrocities and Our Misdemeanours: The Reticence of States to Try Their “Own Nationals” for International Crimes’ in Mark Lattimer and Philippe Sands (eds), Justice for Crimes against Humanity (2003) 107, 121-5. See also Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000).

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recur in 1945. The establishment of the Nuremberg and Tokyo Tribunals owed much to Allied perceptions of the farce at Leipzig and at Istanbul. The Allied decision to subject the Nazi leadership to a criminal trial was not the initially preferred approach of some. Prime Minister Churchill, for example, was keen to save time and money and to avoid providing a forum for Nazi propaganda by simply lining up the defendants for summary execution. Fortunately President Truman was deeply convinced of the need for a trial by law and after strenuous and, ultimately, persuasive argument his position prevailed amongst the Allied leadership. Justice Robert Jackson of the US Supreme Court, on secondment to head the US prosecution team at Nuremberg, immortalised the importance of commitment to a proper judicial process in his opening speech at the Trial: That four great nations, ﬂushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most signiﬁcant tributes that Power has ever paid to Reason.

The opportunity existed at the end of World War Two for the Allied nations to engage in a vengeful and punitive response to Nazi atrocity. Instead, they chose to use a legal process. Jackson’s claim about the signiﬁcance of the Trial stands in stark contrast to a comment from his Chief Justice Harlan Stone from the US Supreme Court: Jackson is away conducting his high-grade lynching party in Nuremberg. I don’t mind what he does to the Nazis but I hate to see the pretence that he is running a court and proceeding according to the Common Law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.

There has always been scepticism about international criminal justice and the notion of trying alleged war criminals for their violations of international law. Chief Justice Harlan Stone articulated a view that has been reiterated by many others since – even if the particular words used have varied. In spite of this pervasive scepticism the reality remains that the principle of individual criminal responsibility for violations of international law, ﬁrst manifested at Nuremberg, is now applied daily around the world – in The Hague, in Arusha, in Freetown, in Pristina, in Sarajevo, in Baghdad and in many other cities including, it seems, soon also in Phnom Penh. In every place the Nuremberg Trial is cited regularly See Geoﬀrey Robertson, Crimes against Humanity (1999) 198; Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules (2005) 49-50. 10 Trial of the Major War Criminals, above n 3, Vol 2, 2nd day, 99. 11 See Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956) 716. 9

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as the pre-eminent precedent for subsequent trials and this particular legacy must be acknowledged. B The Substantive Crimes in the Nuremberg Charter Both the Nuremberg and Tokyo Charters included three categories of international crime: war crimes, crimes against humanity and crimes against peace. There was never any controversy about the inclusion of war crimes – a category of crime already well accepted in customary international law at the end of World War Two. From 1864 and the adoption of the very ﬁrst Geneva Convention, through the two Hague International Peace Conferences of 1899 and 1907, the development of the international legal regulation of the conduct of war had resulted in a substantial body of accepted rules. Importantly though, it was also well accepted that the corpus of rules could be enforced. The proposed Allied criminal tribunals post-World War One were intended to deal with criminal responsibility for violations of the existing jus in bello. Twenty-ﬁve years later the inclusion of war crimes as a distinct category of jurisdiction ratione materiae in the Nuremberg Charter was automatic. However, the same could not be said of either crimes against peace or crimes against humanity. The category of crimes against peace was intended to cover allegations of involvement in, preparation for, initiation of, or the waging of aggressive war. Prior to the end of World War Two and the drafting of the Nuremberg Charter, there had been attempts in international law to outlaw resort to war but none of the key treaty texts explicitly translated the international wrong – a violation of international law – into an international crime. The Defence at Nuremberg argued strenuously against the criminalisation of aggression on the basis that art 6(a) of the Nuremberg Charter amounted to the creation of law ex post facto in violation of the fundamental principle nullem crimen sine lege. The Defence particularly stressed the absence of any explicit criminalisation of aggression in the Kellogg-Briand Pact of 1928. Others since Nuremberg have

12 Charter of the International Military Tribunal, art 6, annexed to Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279 (‘Nuremberg Charter’); Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, amended 26 April 1946, TIAS 1589, 4 Bevans 20, art 5. 13 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, opened for signature 22 August 1864, 1 Bevans 7 (entered into force 22 June 1865). 14 Trial of the Major War Criminals, above n 3, Vol 1, Judgment, 219. 15 General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 57 (entered into force 24 July 1929) (‘Kellogg-Briand Pact’).

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adopted and reiterated the Defence argument as a major criticism of both the Nuremberg and the Tokyo Trials. The Tribunal heard the Defence argument but rejected it. In reviewing the legal eﬀect of the Kellogg-Briand Pact the Tribunal reasoned that the Pact rendered aggressive war illegal and that Germany and its allied Axis Powers of Italy and Japan were all party to the Pact. The Nuremberg defendants charged with participation in aggressive wars knew they were acting in violation of Germany’s international legal obligations. The fact that the Kellogg-Briand Pact made no explicit criminalisation of resort to aggressive war did not excuse the relevant defendants of individual criminal responsibility. The Tribunal observed that the major treaty regulating the conduct of war also failed to explicitly criminalise violations of the law and yet that omission had never stopped the successful prosecution of war crimes: [I]t is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of ﬂags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as oﬀences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish oﬀenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention.

The Tribunal also referred to the 1923 Draft Treaty of Mutual Assistance and to the 1924 League of Nations Protocol for the Paciﬁc Settlement of International Disputes, both of which explicitly characterised resort to aggressive war as an international crime. Although neither instrument had ever entered into force the Tribunal explained that the reasons had nothing to do with any objection to the criminalisation of resort to aggressive war. Furthermore, the Tribunal reasoned, Germany itself had already approved the very notion the Defence 16 See, eg, John F. Murphy, ‘Crimes against Peace’ in George Ginsburgs and Vladimir Nikolaevich Kudriavtsev (eds), The Nuremberg Trial and International Law (1990) 121, 141-53. Nullem crimen sine lege meaning ‘there is no crime without law’. 17 Trial of the Major War Criminals, above n 3, Vol 1, Judgment, 220-1. 18 Ibid Vol 1, Judgment, 221-2.

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at Nuremberg now sought to challenge. Germany had acted jointly with other Member States of the League of Nations on 24 September 1927 to adopt a Declaration Concerning Wars of Aggression explicitly characterising such wars as ‘an international crime’. In addition, art 227 of the Versailles Treaty, accepted by Germany at the end of World War One, had provided for the prosecution of the Kaiser by an Allied tribunal for ‘a supreme oﬀence against international morality and the sanctity of treaties’. The fact that the proposed Allied tribunal was never established did not aﬀect Germany’s acceptance of the principle that the Kaiser could be tried for the perpetration of aggressive war as well as for atrocities conducted subsequently. Even if the Tribunal’s reasoning in respect of crimes against peace is rejected, the judges did have a plausible argument based upon developments in international law prior to the outbreak of World War Two. The criticism of retrospectivity was even more pronounced in respect of crimes against humanity. After World War One, in the discussions between the Allied powers about the intention of setting up tribunals to hold accountable those on the losing side responsible for the waging of the war, the US and Japanese representatives rejected the idea of an international tribunal. Other Allied states wanted to prosecute Turkish nationals for their involvement in the massacre of Armenian people. The US and Japanese representatives argued that these were not international crimes – these were atrocities perpetrated by the Ottoman Empire against its own citizens. Crimes against humanity did not exist as a category of international crime at the end of World War One, nor did they at the end of World War Two. There was no unambiguous criminalisation of a category of crimes known as crimes against humanity prior to the drafting of the Nuremberg Charter. The drafters of the Nuremberg Charter attempted to blur the issue of criminal law being applied retrospectively by including in the deﬁnition of crimes against humanity a requirement that any such crimes be perpetrated ‘in the course of war’. The motivation for such a nexus was to minimise any potential criticism of retrospective creation of international criminal law. By requiring the perpetration of crimes against humanity in the context of war this new category of international crime could be construed as a mere extension of war crimes. That conceptual approach of the drafters was approved and applied in the subsequent Judgment. According to the Tribunal:

19 Declaration Concerning Wars of Aggression, adopted by the Eighth Assembly of the League of Nations, Oﬃcial Journal, Special Supplement No 54, 155. 20 Treaty of Peace with Germany, opened for signature 28 June 1919, 2 Bevans 43 (entered into force 10 January 1920) (‘Treaty of Versailles’). 21 Nuremberg Charter, above n 11, art 6(c). 22 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (2nd revised ed, 1999) 41, 60.

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Michael J. Kelly and Timothy L.H. McCormack With regard to Crimes against Humanity there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes against Humanity.

Despite the questionable legality of the subject-matter jurisdiction of the Tribunal, all three categories of international crime in the Nuremberg Charter have subsequently become well and truly entrenched in the corpus of customary international criminal law. The international legal status of the so-called ‘Nuremberg Principles’ was endorsed by the UN General Assembly soon after judgment was delivered in the Trial, and the inclusion of all three categories of crime reinforces the legal status they enjoy. The inclusion of crimes against humanity in the Nuremberg Charter has an element of ‘double-edged sword’ about it. It is an unassailable fact that since Nuremberg crimes against humanity have existed as a distinct category of international crime. But it is also true that the particular deﬁnition in the Charter had a negative legacy. The tying of crimes against humanity to the context of war to soften the impact of retrospective application of the law eﬀectively guaranteed the nexus with armed conﬂict as an element of the oﬀence for decades after Nuremberg. It was not until 1998 when, in the negotiations for the Rome Statute of the International Criminal Court (ICC), the majority of states recognised that crimes against humanity can happen in peace time and in conﬂict, and that such crimes ought to be characterised by the nature of the oﬀence, irrespective of the 23 Trial of the Major War Criminals, above n 3, Vol 1, Judgment, 254-5. 24 Aﬃrmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, GA Res 95 (I), UN Doc A/RES/95 (I), 11 December 1946.

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particular context in which the crime occurs. Finally, the requisite nexus with armed conﬂict was removed. Interestingly, of all the three categories of international crime in the Nuremberg Charter, crimes against peace has proven the most challenging in the subsequent development of international criminal law. All attempts since Nuremberg to reach multilateral agreement on a deﬁnition of the crime of aggression for the purposes of individual criminal liability have, to date, failed. Article 5 of the Rome Statute preserves the nascent crime in the jurisdiction ratione materiae of the ICC pending agreement on a satisfactory deﬁnition to reinstate the possibility of prosecution. In the absence of a negotiated treaty deﬁnition of the crime of aggression by the States Parties to the ICC, other international and hybrid tribunals will no doubt all continue to exercise jurisdiction ratione materiae over war crimes and crimes against humanity but not over the crime of aggression. The Statute of the Iraqi High Tribunal is unique in this respect. Whereas the deﬁnitions of war crimes and crimes against humanity mirror the Rome Statute, the drafters of the Statute were able to identify an existing Iraqi criminal law as follows: Article 14(c). The abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended.

That particular Iraqi provision surely represents one of the most deft handlings of the impediment of a lack of multilateral deﬁnition of the crime of aggression in the establishment of any criminal tribunal since Nuremberg. C

Conspiracy as a Basis for Criminal Responsibility

Article 6 of the Nuremberg Charter enumerated the subject-matter jurisdiction of the IMT in the three categories of crimes against peace, war crimes and crimes against humanity. The Indictment issued by the Prosecution identiﬁed four 25 See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, art 7 (entered into force 1 July 2002) (‘Rome Statute’). For discussion of the signiﬁcance of the removal of the nexus with armed conﬂict in the deﬁnition of crimes against humanity in the Rome Statute, see Daryl Robinson, ‘Deﬁning “Crimes against Humanity” at the Rome Conference’ (1999) 19 American Journal of International Law 43; Timothy L.H. McCormack, ‘Crimes against Humanity’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004) 184-5. 26 Statute of the Iraqi High Tribunal, art 14, Law No 10 of 2005, Oﬃcial Gazette of the Republic of Iraq, No 4006, 18 October 2005 (‘Statute of the Iraqi High Tribunal’). See also Statute of the Iraqi Special Tribunal, art 14, in Appendix A to Delegation of Authority regarding an Iraqi Special Tribunal, Coalition Provisional Authority Order 48, 10 December 2003.

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separate counts. Counts Two, Three and Four of the Indictment corresponded with art 6(a) to (c) of the Nuremberg Charter – crimes against peace, war crimes and crimes against humanity. The Indictment speciﬁed ‘Common Plan or Conspiracy’ as Count One – a separate count of the Indictment in its own right. The Prosecution was not involved in some creative law-making here; rather, conspiring to wage aggressive war was explicitly referred to in art 6(a) of the Charter, which stated as follows: Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; …

27 Trial of the Major War Criminals, above n 3, Vol 1, Indictment. 28 Under ‘Count One – The Common Plan or Conspiracy’, the oﬀence was stated as follows: All the defendants, with divers other persons, during a period of years preceding 8 May 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity, as deﬁned in the Charter of this Tribunal, and, in accordance with the provisions of the Charter, are individually responsible for their own acts and for all acts committed by any persons in the execution of such plan or conspiracy. The common plan or conspiracy embraced the commission of Crimes against Peace, in that the defendants planned, prepared, initiated, and waged wars of aggression, which were also wars in violation of international treaties, agreements, or assurances. In the development and course of the common plan or conspiracy it came to embrace the commission of War Crimes, in that it contemplated, and the defendants determined upon and carried out, ruthless wars against countries and populations, in violation of the rules and customs of war, including as typical and systematic means by which the wars were prosecuted, murder, ill-treatment, deportation for slave labor and for other purposes of civilian populations of occupied territories, murder and ill-treatment of prisoners of war and of persons on the high seas, the taking and killing of hostages, the plunder of public and private property, the indiscriminate destruction of cities, towns, and villages, and devastation not justiﬁed by military necessity. The common plan or conspiracy contemplated and came to embrace as typical and systematic means, and the defendants determined upon and committed, Crimes against Humanity, both within Germany and within occupied territories, including murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war, and persecutions on political, racial, or religious grounds, in execution of the plan for preparing and prosecuting aggressive or illegal wars, many of such acts and persecutions being violations of the domestic laws of the countries where perpetrated. Ibid Vol 1, Indictment, 29.

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The Prosecution argued that the reference to conspiracy in art 6(a) of the Charter was not limited to the category of crimes against peace, but rather that Count One of the Indictment ought to extend to conspiring to commit war crimes and crimes against humanity as well as crimes against peace. The Tribunal gave short shrift to this argument: In the opinion of the Tribunal these words [of art 6(a)] do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit War Crimes and Crimes against Humanity, and will consider only the common plan to prepare, initiate and wage aggressive war.

The judges of the IMT were clearly concerned about convicting defendants for their involvement in a conspiracy as a substantive crime in and of itself rather than utilising conspiracy as an alternative basis of individual criminal responsibility for a diﬀerent substantive crime. Consequently, the judges read the ﬁrst Count of the Indictment narrowly. Count One could only apply to participation in the Nazi conspiracy to wage aggressive war – considered by the Nuremberg Tribunal to be the most serious of the charges laid – and could not apply to participation in a plan to perpetrate war crimes and/or crimes against humanity. In its attempt to narrowly prescribe the conspiracy charge, the Nuremberg Tribunal did not stop at limiting the application of the charge to the category of crimes against peace. The Tribunal further insisted upon linking its considerations of Counts One and Two of the Indictment – that defendants charged with conspiring to wage aggressive war were also charged under Count Two with participation in the substantive crime of initiating or waging aggressive war. The Tribunal stated that: Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter deﬁnes this oﬀence as planning, preparation, initiation or waging of a war of aggression or ‘participation in a common plan or conspiracy for the accomplishment … of the foregoing’. The Indictment follows this distinction. Count One charges the common plan or conspiracy. Count Two charges the planning and waging of war. The same evidence has been introduced to support both counts. We shall therefore discuss both counts together, as they are in substance the same. The defendants have been charged under both counts, and their guilt under each count must be determined.

29 Trial of the Major War Criminals, above n 3, Vol 22, 217th day, 468. 30 Ibid Vol 22, 217th day, 466 (emphasis added).

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The Tribunal only convicted 8 of the 22 defendants under Count One of the Indictment but every single one of those defendants was also convicted under Count Two. No defendant at Nuremberg was convicted on a count of conspiracy without also being convicted of the additional crime of carrying out the conspiracy to wage aggressive war. The notion of conspiracy adopted by the Nuremberg Tribunal allowed no room for spontaneity. The initiation of aggressive war requires detailed planning and preparation and the Tribunal was only willing to convict those defendants who had both planned and prepared for aggression in Europe and then actually participated in the implementation of the plan. The approach of the Nuremberg Tribunal in relation to conspiracy was not followed by Washington in the establishment of military commissions to prosecute oﬀences allegedly committed in the global war on terror. Military Commission Instruction No 2, promulgated by the US Secretary of Defense Donald Rumsfeld on 30 April 2003, established the subject-matter jurisdiction of the ﬁrst proposed US military commissions. Inter alia, the Instruction included the crime of conspiracy – not as an alternative basis for criminal responsibility in respect of the commission of some other crime, but as a substantive crime in its own right. The Instruction includes comments by way of clariﬁcation of the scope of the oﬀence. The following provisions are extracted in relevant part: Two or more persons are required to have a conspiracy. Knowledge of the identity of the co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended oﬀense. … The overt act must be done by one or more of the conspirators, but not necessarily the accused, and it must be done to eﬀectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act. … The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. It is not essential that any substantive oﬀense be committed. … That the object of the conspiracy was impossible to eﬀect is not a defense to this oﬀense. … Conspiracy should be charged separately from the related substantive oﬀense. It is not a lesser-included oﬀense of the substantive oﬀense.

This provision was clearly broader than the oﬀence allowed at the Nuremberg Trial. On the basis of this substantive oﬀence it would have been suﬃcient for an accused to join an organisation and be sympathetic to the ‘unlawful purpose’ of that organisation. Provided that any member of the organisation committed an overt act in pursuit of the criminal purpose, the accused could have been 31 US Department of Defense, Military Commission Instruction No 2, 30 April 2003 (MCI No 2, 30 April 2003). 32 Ibid para 6C(6)(b).

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convicted of the oﬀence. The accused did not personally need to be involved in a criminal act or even to have any knowledge that such an act was contemplated. It was no defence to the charge that: (a) an accused may have been incapable of committing any oﬀence; (b) the planned criminal purpose was unknown to the accused; (c) the persons planning the oﬀence were unknown to the accused; or (d) the planned criminal purpose was impossible to implement. So, an accused could have been convicted of conspiring with people he/she did not know, with reference to an ‘agreement’ that he/she had never discussed, about an object that neither he/she nor anyone else could possibly achieve. We can only begin to imagine the intensity of language the judges of the Nuremberg Tribunal would have used to dismiss such a proposition had it been put to them in the same terms. Fortunately such speculation is unnecessary. In the case of Hamdan v Rumsfeld, the US Supreme Court, by a majority of 5 to 3, granted the applicant’s petition and declared the proposed military commissions illegal. Justice Stevens delivered the judgment of the Court. In that judgment Justice Stevens, speaking for the plurality of four of the ﬁve majority judges, also dismissed the speciﬁc charge against Hamdan of ‘conspiracy’ on the basis that it is not known in the law of war. After dismissing the Government’s purported US domestic law authority for the recognition of conspiracy as a valid law of war oﬀence for trial by military commission, Justice Stevens stated that: Finally, international sources conﬁrm that the crime charged here is not a recognized violation of the law of war. As observed above … none of the major treaties governing the law of war identiﬁes conspiracy as a violation thereof. And the only ‘conspiracy’ crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against peace and requires for its commission actual participation in a ‘concrete plan to wage war’. … The International Military Tribunal at Nuremberg, over the prosecution’s objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes ... and convicted only Hitler’s most senior associates of conspiracy to wage aggressive war. … In sum, the sources that the Government and Justice Thomas rely upon to show that conspiracy to violate the law of war is itself a violation of the law of war in fact demonstrate quite the opposite.

The plurality explicitly rejected any claim to a valid legal basis for inclusion of the charge of conspiracy within the subject-matter jurisdiction of the military 33 Salim Ahmed Hamdan, Petitioner v Donald H. Rumsfeld, Secretary of Defense et al, 548 US ___ (2006) (‘Hamdan’). 34 Ibid 47-8 (Stevens J).

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commissions and relied heavily upon the Nuremberg Judgment to do so. Despite this clear and unambiguous position by the plurality of the US Supreme Court, Congress retained the oﬀence of conspiracy in the Military Commissions Act of 2006 (‘the Act’) for potential trial by a post-Hamdan military commission. Section 950v(b)(28) of the Act includes the oﬀence of conspiracy as follows: Any person subject to this chapter who conspires to commit one or more substantive oﬀenses triable by military commission under this chapter, and who knowingly does any overt act to eﬀect the object of the conspiracy, shall be punished … as a military commission under this chapter may direct.

On one reading of this particular provision, the concerns articulated by the Hamdan plurality are largely assuaged. To be convicted of this oﬀence an accused must have conspired to commit one of the other substantive oﬀences listed in the legislation and must personally have undertaken an overt act to give eﬀect to object of the conspiracy. However, the terms of the Act are supplemented by the signiﬁcantly increased detail of the Manual for Military Commissions 2007 (‘the Manual’). In particular, the Manual speciﬁes the precise elements of each oﬀence and also enumerates detailed commentary to clarify the scope of each oﬀence. In relation to the new oﬀence of conspiracy, the commentary in the Manual replicates almost verbatim the language of the commentary in the discredited Military Commission Instruction No 2 establishing the subjectmatter jurisdiction of the pre-Hamdan military commissions and extracted in relevant part above. The only divergence between the two commentaries is that the Manual requires that the overt act in question be committed by the accused – reﬂecting the Act’s requirement that this be the case. In all other material respects, the scope of the oﬀence of conspiracy within the jurisdiction of the preHamdan military commissions is precisely the same as that within the jurisdiction of the post-Hamdan commissions. According to the relevant commentary in the Manual an accused can still be guilty of conspiracy: without knowledge of their co-conspirators; although incapable of committing the intended oﬀence; even though the overt act need not itself be criminal; even though it is not essential that any substantive oﬀence, including the object oﬀence, be committed; and, even though the object of the conspiracy was impossible to eﬀect. The drafters of the Manual seem to have capitalised on the cloak of congressional approval in the enactment of the legislation to cast the ‘conspiracy’ net as broadly as possible

35 Military Commissions Act of 2006, 10 USC § 950v(b)(28) (2000). 36 Manual for Military Commissions 2007, available at . 37 Manual for Military Commissions 2007, Pt IV-20 (‘Manual’), available at .

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– certainly wider than either the plurality in Hamdan or the members of the Nuremberg Tribunal were prepared to countenance. The one Australian detainee brought before the military commissions at Guantánamo Bay, David Hicks, was originally charged in June 2004 with counts of conspiracy, attempted murder by an unprivileged belligerent, and aiding the enemy pursuant to the pre-Hamdan military commissions process. Following the decision of the US Supreme Court in Hamdan, the termination of all proceedings, the subsequent passage of the Act, and the release Manual, fresh charges were proposed against David Hicks in February 2007. The Prosecution indicated its intention to charge Mr Hicks with counts of attempted murder in violation of the law of war and of providing material support to terrorism. Interestingly, no proposed charge of conspiracy reappeared in the charge sheet drafted pursuant to the Act, and the reason for the omission is not immediately obvious. It is certainly the case that any attempt to pursue a charge of conspiracy will be met with a torrent of criticism with frequent citation of both the Nuremberg Judgment and the decision of the plurality in Hamdan. III

Nuremberg, the Hague Regulations and the Law of Occupation A

Background

At the time of the Nuremberg Trial there were only three sources of law which regulated an occupying power in its administration of occupied territory and its relationship to the civil community. These were the 1907 Hague Regulations; whatever could be gleaned from state practice/customary law; and the deliberations of relevant tribunals. Geneva Convention IV of 1949 was to develop this law more extensively in relation to the treatment and welfare of the civilian population and the rights of the occupying power in relation to maintaining order. Geneva Convention IV was silent on all other aspects of the administration and economic regulation of occupied territory. These aspects have only ever been addressed in conventional form in the Hague Regulations. Perhaps for this reason, Geneva Convention IV preserved the operation of the 38 See US v David Hicks, Charge Sheet, 10 June 2004 . 39 See US v David Hicks, Sworn Charges, 2 February 2007 . The charge of ‘Providing Material Support to Terrorism’ was referred to a military commission by the Convening Authority on 1 March 2007. 40 Regulations annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, UKTS 9 (1910) (entered into force 26 January 1910) (‘Hague Regulations’). 41 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’).

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Hague Regulations in occupation situations. The deliberations of the Nuremberg Tribunal on the status and application of the Hague Regulations and the German administration of occupied territories is therefore of continuing relevance. The key references in the proceedings can be found in the discussion of Courts One and Three in the Nuremberg Judgment itself. The main ﬁndings in this respect were delivered by the Soviet Judge General Nikitchenko. In March 2003 a Coalition of three nations launched a ground campaign in Iraq against the regime of Saddam Hussein. The campaign resulted in the total defeat of the Iraqi armed forces, the collapse of the regime, and the complete occupation of Iraq. It was accepted from the beginning by the Coalition members that Geneva Convention IV applied to this situation — all parties to the conﬂict having also been High Contracting Parties to the Convention — and this was also reinforced in relevant UN Security Council Resolutions. Of the many questions that were posed during the occupation we will here focus on the issues of whether the Hague Regulations applied to the situation, and the lawful limits of authority of the occupying power in relation to the administration and 42 Judge Nikitchenko outlined the legal framework for judging the defendants as follows: Article 49 of the Hague Convention provides that an occupying power may levy a contribution of money from the occupied territory to pay for the needs of the army of occupation, and for the administration of the territory in question. Article 52 of the Hague Convention provides that an occupying power may make requisitions in kind only for the needs of the army of occupation, and that these requisitions shall be in proportion to the resources of the country. These Articles, together with Article 48, dealing with the expenditure of money collected in taxes, and Articles 53, 55 and 56, dealing with public property, make it clear that under the rules of war, the economy of an occupied country can only be required to bear the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear. Article 56 reads as follows: The property of municipalities, of religious, charitable, educational, artistic and scientiﬁc institutions, although belonging to the State, is to be accorded the same standing as private property. All pre-meditated seizure, destruction, or damage of such institutions, historical monuments, works of art and science, is prohibited and should be prosecuted. The evidence in this case has established, however, that the territories occupied by Germany were exploited for the German war eﬀort in the most ruthless way, without consideration of the local economy, and in consequence of a deliberate design and policy. There was in truth a systematic ‘plunder of public or private property’, which was criminal under Article 6(b) of the Charter. Trial of the Major War Criminals, above n 3, Vol 1, Judgment, 238-9. 43 These were the United States, the United Kingdom and Australia. It is not intended to examine here the issue of the legal justiﬁcation for the 2003 campaign or whether this was a lawful use of force. 44 See, eg, SC Res 1472 (2003), UN Doc S/RES/1472 (2003), 28 March 2003; SC Res 1483 (2003), UN Doc S/RES/1483 (2003), 22 May 2003.

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economic management of the country. To resolve these issues and to manage the collective responsibilities of the Coalition, a Coalition Provisional Authority (CPA) was established under the leadership of the US-appointed Administrator Mr L.P. Bremer III. The CPA operated from May 2003 to 28 June 2004. B

Iraq and the Hague Regulations

The law of occupation comes into eﬀect in accordance with the test laid down in art 42 of the Hague Regulations. This provision may be summarised as requiring that territory have passed under the eﬀective control of the forces; this does not necessarily depend on whether the forces establish a formal occupation administration. It does not take eﬀect in the combat zone where the forces are preoccupied with ﬁghting the enemy or where forces are merely passing through territory. If the Hague Regulations applied to the conﬂict in Iraq, then using this test the law of occupation was in eﬀect throughout Iraq by the end of April 2003. What then were the constituent parts of the law of occupation that would have come into operation at that time? Primarily Geneva Convention IV was, for the ﬁrst time in its 60-year history, accepted to have general application as a matter of law without contest. Along with it came the Hague Regulations of 1907 as preserved by art 154 of Geneva Convention IV. The application of the Hague Regulations did however become the source of some internal Coalition debate as Iraq had never become a party to the Hague Convention. Some opinion was proﬀered by advisers that because Iraq was not a party, the Coalition was not obliged to follow the Convention but only state practice with respect to the matters covered by the Hague Regulations. This was a crucial issue as the Hague Regulations, being the only source of law dealing directly with the administrative aspects of an occupation, could provide much needed black letter authority for required administrative action. This is notwithstanding the limitations also contained therein which will be discussed below. The diﬃculty with the argument that the Regulations did not apply was that in the ﬁrst place the Security Council Resolutions governing the operation (Resolutions 1483 and 1511) directly speciﬁed their application. Secondly, irresistible authority for the fact that they are declaratory of customary law could be found in the Nuremberg proceedings. Any argument claiming that they were not binding and that the dissolution of the Iraqi State gave open slather 45 Hague Regulations, above n 39, art 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. 46 Tzemel Advocate et al v (a) Minister of Defence, (b) Commander of the Ansar Camp III HCJ 593/82 (‘Ansar Prison Case’). 47 SC Res 1483 (2003), UN Doc S/RES/1483 (2003), 22 May 2003; SC Res 1511 (2003), UN Doc S/RES/1511 (2003), 16 October 2003.

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to the Coalition was in fact an argument that directly mirrored that used by the defendants at Nuremberg. Alfred Rosenberg in his capacity as Reich Minister for the Occupied Eastern Territories was to assert: The regulations of the Hague Convention on land warfare, which concern the administration of a country occupied by a foreign belligerent power, are not applicable, since the U.S.S.R. is to be considered dissolved and, therefore, the Reich has the obligation of exercising all governmental and other sovereign functions in the interests of the country’s inhabitants. Therefore, any measures are permitted which the German administration deems necessary and suitable for the execution of this comprehensive task.

The response by US Prosecutor Captain Harris at Nuremberg was striking and highlights the jeopardy to moral authority and legitimacy that running such an argument in Iraq posed: Implicit in Defendant Rosenberg’s statement that the Hague Regulations are not applicable to the Soviet Union is the recognition by him that the conspirators’ actions in the Soviet Union ﬂagrantly violated the Hague Regulations. The statement indicates that the conspirators were utterly contemptuous of applicable principles of international law.

The Tribunal, in response to the assertions of the defendants, found as follows: But it is argued that the Hague Convention does not apply in this case, because of the ‘general participation’ clause in Article 2 of the Hague Convention of 1907. That clause provided: ‘The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties of the Convention.’ Several of the belligerents in the recent war were not parties to this Convention. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war,’ which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war … 48 Trial of the Major War Criminals, above n 3, Vol 4, 21st day, 13. 49 Ibid Vol 4, 21st day, 14. 50 Ibid Vol 1, Judgment, 253-4. This ruling was also followed by the Tokyo Tribunal and arbitral tribunal decisions.

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It was therefore clearly incumbent on the Coalition to justify their actions in Iraq in relation to the Hague Regulations of 1907 in addition to the applicable Security Council Resolutions. This is in fact the approach the Coalition was to take. What then were some of the practical outcomes of the application of the Hague Regulations to the situation in Iraq from May 2003 until the conclusion of the legal state of occupation on 28 June 2004 when a sovereign Iraqi Government assumed control from the CPA? C

Expropriation

An issue that emerged very early in the life of the CPA, as security concerns for Iraqi Government oﬃcials and the protection of key witnesses in criminal proceedings grew, was their accommodation in safe areas, and the legitimacy of using property in the so-called ‘Green Zone’ in particular for this purpose. The diﬃculty in using abandoned property in the Green Zone was establishing whether it was public or private property. Under CPA Order No 4, property owned by high-level Ba’athists where those individuals could not establish they were bona ﬁde purchasers for value would be considered an asset of the state and could be conﬁscated and managed on behalf of the Iraqi people, to be turned over to the sovereign at the end of the occupation. The question arose as to property that could not be clearly deﬁned in this respect. The situation with respect to the necessary utilisation for humanitarian or administrative purposes of abandoned private property in general, also arose. The Hague Regulations requisition provisions in art 52 relate only to one very speciﬁc aspect of occupation authority, that being obtaining the means to sustain an army in the ﬁeld, where necessary from private sources. This does not impinge upon the other heads of authority under art 43 for restoring and maintaining public order and life as well as the general authority which is able to be exercised in administering the occupied territory for the beneﬁt of the population or to secure the interests of the absent sovereign. The law with respect to these 51 The ‘Green Zone’ corresponded exactly to the area of Baghdad that had been physically segregated from the rest of the city by the former regime to act as a secure administrative hub and the location of the luxurious palaces and homes of key regime oﬃcials and families. It also included oﬃcial Ba’ath Party properties such as the main Ba’ath Party headquarters. Citizens were not permitted to enter the area on pain of arrest and imprisonment or death. 52 Management of Property and Assets of the Iraqi Baath Party, Coalition Provisional Authority Order No 4, 25 May 2003. Section 1 deﬁnes ‘property and assets’ to include ‘all movable and immovable property, records and data, cash, funds, realizable assets and liquid capital, in whatever form maintained and wherever located, used, possessed, or controlled by the Ba’ath Party, its oﬃcials and members, and all members, and all residences occupied by oﬃcials or members assigned to them by the Party, a member of the Ba’ath Party or other State instrumentality and that were not purchased for full value by those oﬃcials or members.’

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rights and obligations is expressed by the authoritative commentators and in the decisions of municipal courts. The legal category for the use of private property for these latter purposes is known as ‘expropriation’ not ‘requisition’. Ernst Feilchenfeld states in relation to the requisition issue that: The regulations on the requisitioning of real estate do not answer the question of the extent to which an occupant may provide for expropriation in connection with civil legislation passed for the maintenance of law and order. But in this case the expropriations would be for the beneﬁt of the sovereign, not for that of the occupant.

He adds that: During an occupation the occupant’s right and duty to maintain public order and safety [sic] may involve expropriation. As measures for the beneﬁt of the occupied country they diﬀer, of course from requisitions.

Normally the occupied country’s laws in this regard would have to be followed, however, in the case of Marjamoﬀ and Others v Wloclawek of 5 December 1924, the Polish Supreme Court determined that the occupying power may apply its own rules of procedure where necessary for reasons of public utility. Gerhard von Glahn adds to this that: … an occupant appears to have the right to expropriate either public or private property solely for the beneﬁt of the native population.

Further to the above, it has often been the case in occupations, particularly in states with centralised economies and circumscribed private ownership, that it is diﬃcult to determine what is public and what is private property. The law of occupation on this point seems clear based on state practice. Von Glahn sets this out as follows: General practice among modern occupants indicates that if doubt exists concerning the nature of the ownership of property, it is held to be publicly owned until and unless private ownership is established. 53 Ernst Hermann Feilchenfeld, The International Economic Law of Belligerent Occupation (1942) 38. 54 Ibid 50. 55 (1923-24) Annual Digest of Public International Law Cases, Case No 243, 444. 56 Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957) 186. 57 Ibid 179.

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Bearing all of the above in mind, it is clear that if the status of the property is in doubt it may be treated as public. Even if it were clearly private property it could be expropriated if the intended purpose was not for the economic beneﬁt of the occupying powers, and therefore not spoliation, and was instead intended for the beneﬁt of the public administration of Iraq and the sovereign. In the security environment that adhered in Iraq there was a clear nexus between providing for the security of public oﬃcials and witnesses and the overall obligation to maintain public order. In this respect the approach of the Coalition was very similar to that taken after World War Two in relation to the Nazi Party and its property. In terms of the conduct of the German authorities in territory occupied by them during the war, the IMT and the Prosecution did not assert any breaches of jus in bello had been committed with regard to properties requisitioned for administrative purposes or for military necessity. D

Economic Reform: Pushing the Envelope?

Of all the initiatives and measures taken by the CPA, the focus on economic reform was the most contentious in terms of asserting a ﬁrm legal basis and providing for their enduring applicability and utility in Iraq. Signiﬁcant factors were the high level of corruption under the former regime, the concentration of the economy in state-owned enterprises, and a complicated legislative process that lent itself to confusion, contradiction and exploitation. The issue of the legal basis for reform in this area was also aﬀected by the application and interpretation of Security Council Resolution 1483 which took matters beyond the law of occupation in many respects. Taking the law of occupation considerations, however, art 55 of the Hague Regulations indicates that the occupying power is ‘usufructuary’ with respect to public buildings, real estate, forests, and agricultural estates belonging to the state and must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. The concept of usufructuary is based in Roman law and requires that the occupant respect the substance and the capital of the enemy public property but is entitled to its use and to complete control over the product or proceeds arising out of the property. The limits of this right are summarised by von Glahn as follows:

58 The issue of ‘spoliation’ or economic exploitation of occupied territory will be considered below. 59 Thomas Catan, ‘Iraq Business Deals May Be Invalid, Law Experts Warn’, Financial Times (London), 29 October 2003. 60 SC Res 1483 (2003), UN Doc S/RES/1483 (2003), 22 May 2003.

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This prohibition does not apply to state-owned movable property and assets. The reference to public buildings could be interpreted to mean only those buildings relating directly to public administration whereas immovable property associated with state-owned enterprises could be considered as assets. When the Hague Regulations were drafted the state-owned enterprise phenomenon of communist states was yet to arise and therefore the concept of public buildings was very limited and related to those assets required for the basic functions of the state. This can be seen illustrated in relation to the Nuremberg treatment of German actions in the USSR where it was ‘spoliation’, not privatisation or use for the support of military action, that was the subject of the Tribunal’s sanction. Normally any action taken by the occupier which is lawful can continue to have lawful eﬀect after an occupation is concluded at the discretion of the succeeding sovereign. Unlawful acts are not capable of continuing validity without express adoption by the succeeding sovereign. A company doing business under the CPA would be vulnerable to loss without compensation if it attempted to rely on unlawful acts by the occupying power. Traditionally there has been a signiﬁcant amount of litigation following occupations based on such commercial uncertainty, faulty equity or unlawful practice. The few examples of state practice provide limited guidance but there is some valuable jurisprudence. The various occupations that occurred in the course of World War One became the subject of a number of Mixed Arbitral Tribunals which dealt with acts of the occupiers and commercial disputes arising from those actions. Many acts of the German authorities which were considered to have gone beyond art 43 of the Hague Regulations were condemned including actions attempting to manipulate the political structure of Belgium, interference with the educational curricula and certain economic measures. The Court in Miliaire v Germany implied that unless a law was speciﬁcally abrogated it remained in force, particularly in relation to the normal civil law. Secondly any alterations to the law were permissible only in circumstances of the necessities of war or the maintenance of public order. The phrase ‘unless absolutely prevented’ was interpreted to encompass these two exceptions and this approach was conﬁrmed in the decisions in Ville d’Anvers

61 Von Glahn, above n 55, 178. 62 Spoliation equates to the stripping of the assets of the occupied state for transport to the territory of the occupying power for its own economic beneﬁt. 63 (1923) 2 MAT 715.

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v Germany and in Aﬀaire Chevreau (France/Royaume-Uni). This means that the term ‘absolutely’ should be read as incorporating the concept of military necessity, which would nevertheless be placed at a high threshold. In relation to the territories occupied by Israel, the Israeli Supreme Court stated in Jerusalem Electricity Co Ltd v Minister of Energy that: generally, in the absence of special circumstances, the Commander of the region should not introduce in an occupied area modiﬁcations which, even if they do not alter the existing law, would have far reaching and prolonged impact on it, far beyond the period when the military administration will be terminated one way or another, save for actions undertaken for the beneﬁt of the inhabitants of the area.

There were extensive judicial condemnations of many German practices in World War Two which clearly preclude citing those experiences as state practice and there is limited value in looking at the practice of Allied forces in Germany and Japan after World War Two as the principles of debellatio applied in Germany and an agreement regime concluded with the Japanese Government ruled the Japanese situation. The principles of debellatio have been substantially made redundant by Geneva Convention IV and the UN Charter system although the state of debellatio itself may still occur. In relation to the Allied occupation of 64 65 66 67

(1925) 5 MAT 716. (1931) 2 RIAA 1118.

(1981) 11 IYHR 354 (emphasis added). Debellatio (also known as ‘subjugation’) is really two things in the context of an occupation situation. Firstly it describes the circumstance whereby a state has been totally defeated, its government eﬀectively destroyed and therefore the state has eﬀectively ceased to exist. See the Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 3 Bevans 145 (entered into force 26 December 1934), which deﬁnes a ‘state’ in art 1: The state as a person of international law should possess the following qualiﬁcations: (a) a permanent population; (b) a deﬁned territory; (c) government; and (d) capacity to enter into relations with the other states. In addition the term represented the principles that applied to the control and annexation of territory reduced to a state of debellatio. Eﬀectively these rights were unlimited. The Allies after World War Two claimed this adhered to the situation in Germany and that therefore it was not an occupation, the Hague Regulations did not apply, and they had a free hand to administer Germany as a sovereign with unlimited authority. Geneva Convention IV addressed this situation and prevented it from occurring again by the universal coverage expressed in art 2 and the cessation clause at art 6 which deﬁnes the continuing application of the Convention or parts thereof, as will be discussed later in this chapter. The UN Charter also eliminated the annexation aspect of the doctrine. The term is now therefore only relevant to describing the state of debellaltio. Von Glahn, above n 55, 273-86; Georg Schwarzenberger, International Law as

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Italian colonies in World War Two it is important to note that the changes related to exploitative or unworkable Italian colonial law were well within the purview of the Hague Regulations to alter. The IMT dealt with indictments that focussed very substantially on the provisions of the Hague Regulations. The proceedings covered in great detail the economic spoliation by the German authorities in occupied territories and these formed a signiﬁcant part of the ﬁndings against the defendants. The contrast between the policy of the CPA and the German occupation administrations serves as a stark contrast and illustrates the essence of criminality the Hague Regulations sought to prevent. Consider for example the directive issued by Goering on 17 October 1939 on the administration of occupied territories: The task for the economic treatment of the various administrative regions is diﬀerent, depending on whether the country is involved which will be incorporated politically into the German Reich, or whether we will deal with the Government-General, which in all probability will not be made a part of Germany. In the ﬁrst mentioned territories, the … safeguarding of all their productive facilities and supplies must be aimed at, as well as a complete incorporation into the Greater German economic system, at the earliest possible time. On the other hand, there must be removed from the territories of the Government-General all raw materials, scrap materials, machines, etc., which are of use for the German war economy. Enterprises which are not absolutely necessary for the meagre maintenance of the naked existence of the population must be transferred to Germany, unless such transfer would require an unreasonably long period of time, and would make it more practicable to exploit those enterprises by giving them German orders, to be executed at their present location.

While the law is absolutely clear with respect to the prohibition on the sale of state public buildings, real estate and certain resources, such property could nevertheless be made subject to long-term lease or any other contractual arrangement which does not result in the long-term alienation or disposal of the property. Aside from this there is wide scope for action in relation to the welfare of the Applied by International Courts and Tribunals: The Law of Armed Conﬂict (1968) Vol II, 63, 166-73; Eyal Benvenisti, The International Law of Occupation (1993) 91-6. 68 Lord Rennell of Rodd, British Military Administration of Occupied Territories in Africa during the Years 1941-1947 (1948). 69 For examples of the sort of evidence introduced and allegations raised at the IMT concerning the execution of Germanization and spoliation, see Trial of the Major War Criminals, above n 3, Vol 1, Indictment: Count Three; Vol 3, 20th day, 573-97; Vol 4, 21st day, 3-16. 70 Trial of the Major War Criminals, above n 3, Vol 1, Judgment, 240.

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people, the security of the occupying power and enabling the normal functioning of daily life. Respect for the local law beyond this is required. To the extent that a state has completely disintegrated or become substantially dysfunctional, there may be much wider scope for extensive modiﬁcations to the institutions and economic framework if this is necessary to make administration of the territory viable, or if this reform is designed principally for the beneﬁt of the population. Under Iraqi law there were a number of practical considerations concerning a legal analysis of the management of commercial life. These were: a) the extensive level of state ownership; b) the state of confusion created by Revolutionary Command Council (RCC) edicts; c) in relation to possible private business activity, the issue of legal frameworks for labour, ﬁnance, securities, anti-trust, consumer and environmental regulation; and d) the actual provisions of Iraqi law. The occupying power is prohibited from selling public buildings, real estate, forests and agricultural estates belonging to the state. This prohibition does not apply to state movable property and assets. The reference to public buildings relates only to those buildings associated with public administration whereas immovable property associated with a state-owned enterprise can be considered as assets. The prohibition against sale does not apply to state-owned movable property and assets. The real estate on which they were located could not be sold. In exercising its duty to restore normal life the CPA was entitled, if not obligated, to suspend the many directives of the RCC that made ad hoc amendments to the base law. The reason these could be suspended were that they: a) were a repressive instrument of the prior regime and they were legally contradictory; b) created extensive confusion for Iraqi business and legal professionals; c) fostered and masked regime corruption; d) impaired viable administration; e) militated against the restoration of normal life and would impair future economic development. If these amendments were suspended it was believed that the base law would permit an initial resumption of normal life with the reasonable conduct and transaction of commercial life including foreign investment. The problem with introducing the foreign investment possibility for Iraq was that the raft of supporting law that accompanies so-called ‘free market’ economies was not present in Iraq. In order to safeguard the Iraqi people and make future economic development feasible a raft of laws were introduced that provided for banking, currency, 71 Hague Regulations, above n 39, art 55.

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insurance, securities, fair competition, environmental protection, social security, anti-money laundering law and other anti-corruption measures. The CPA’s authority to restructure the Iraqi legal framework in relation to economic matters was based on the law of occupation as set out in the Hague Regulations and Geneva Convention IV and, to the extent that the CPA involved the UN, through Security Council Resolution 1483. Thus, if the Government had the ability to override the restrictions with respect to foreign investment then the CPA would also be able to exercise this authority. The issue with exercising that authority would be whether this would be perceived as reinforcing the mechanism that fostered corrupt practices. This could be countered by appropriate transparency measures. The CPA also had authority to take measures related to the proper administration of the territory, to take action against corrupt and repressive measures and practices, and to enable as far as possible the social functions and normal transactions of everyday life. In addition, if the continuation of a deﬁcient legal framework would lead to impoverishment and disorder then a right of action would exist under the obligation to maintain public order. Reform could not be made, however, for purposes of the domestic enrichment of the occupying power, spoliation of the occupied territory, or if the measures would have irreversible, far-reaching and prolonged impact on the occupied territory beyond the period of occupation which could not be justiﬁed as being for the beneﬁt of the population. The general thrust of this restriction is to prohibit actions that could not be reversed by a succeeding sovereign government, mostly with respect to political and constitutional aspects. In the case of Iraq, however, there were Security Council Resolution mandates that had to be considered. Working through Security Council Resolution 1483 provided more scope to eﬀect comprehensive reform with added legitimacy through involvement of the UN. In particular, para 8(e) provided that the UN Special Representative was to assist the Iraqi people by coordinating with the CPA to ‘promot[e] economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and international ﬁnancial institutions’. Thus, if the CPA worked with UN Special Representatives and one or more of the international ﬁnancial institutions, such as the International Monetary Fund or the World Bank, and the Interim Iraqi Authority, any type of economic restructuring would be permitted and would be under a Chapter VII mandate, which is binding on UN Member States.

72 SC Res 1483 (2003), UN Doc S/RES/1483 (2003), 22 May 2003.

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E The Ongoing Impact of Nuremberg The Nuremberg Judgment unquestionably maintains contemporary resonance more than 60 years after it was delivered. Popular perception of the ongoing signiﬁcance of the Judgment is perhaps too simplistic – focusing as it tends to do almost exclusively on Nuremberg’s place as the ﬁrst international criminal tribunal or on the aﬃrmation of the principle of individual criminal responsibility. We have not overlooked those prominent expressions of Nuremberg’s contribution to the subsequent development of international criminal law but we have also attempted to demonstrate the ongoing impact of selected aspects of the substantive law applied by the IMT. In this chapter we have focussed, in particular, upon the law of military occupation and upon conspiracy as a basis of individual criminal responsibility. The IMT made it very clear what the standing of the Hague Regulations was by 1939. Through the way in which it dealt with the activities of the Germans in territories occupied by them and what was speciﬁcally set out in the indictments, we are able to obtain a good understanding of what is permissible and what is not within the parameters of the Hague Regulations. Nuremberg was a signiﬁcant factor, therefore, in shaping the policies and actions of the CPA in Iraq and the limitations applying to them. It helped to ensure that the interests of the Iraqis were secured in these processes. It was because of what the IMT had to say about the Hague Regulations that it was incumbent on the CPA to examine interpretations of the law and the proceedings of relevant tribunals when considering initiatives. Through this exercise there is broader awareness of the current state of the law and its application to particular circumstances. Included in this awareness is the fact that when dealing with state-owned enterprises in centrally-controlled economies the scope of the occupier’s right of action is potentially enhanced. We are clearer now that the prohibition in art 55 of the Hague Regulations against alienating the title to public buildings was intended in the 1907 context of the drafting of the Hague Convention to refer to public administrative or communal assets and not state-owned enterprises, although the real property itself remains inalienable. It is also clear that the actions of an occupying power in expropriating property for engaging in administrative action or military necessity, or in taking economic measures for the beneﬁt of the population or military necessity can be of broad scope within the context also of the obligations of the occupying power. When dealing with societies that have been the subject of brutal totalitarian regimes such as Nazi Germany and Iraq and where the conﬂict has resulted in the total disintegration of those regimes and total control of the state by the occupiers then the scope of action by the occupiers will be extremely broad. Iraq as an example illustrated how the entire apparatus and most of the legal regime of the state required almost total overhaul to make administration in accordance with Geneva Convention IV and fundamental human rights standards possible.

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Despite the continuing security issues in Iraq the legal framework that was introduced by the CPA in consultation with Iraqis may be the key enduring legacy. Examples include the law on non-government organisations which when introduced led within a few short months to the registration of over 1500 new organisations including women’s groups. Also impressive is the result of the introduction of a companies code which resulted in the registration of 3000 new companies by the time the CPA was wound up. Today this number is over the 300 000 mark. The Iraqi Government has examined the reforms of the CPA to determine what may need to be changed and so far have found nothing they would wish to alter. The question remains as to whether the law needs to be reformed in the light of the Iraq experience. There is no doubt that greater clarity on many issues relating to legal and economic reform of occupied territory would be of beneﬁt. Clearer provision and requirements for measures to ensure the involvement of an indigenous voice in the more far-reaching proposals would also be desirable. This could, for example, be dealt with through a further additional protocol to the Geneva Conventions that updated and expanded upon the Hague Regulations. The likelihood of this happening and the forces that would make the exercise problematic make this an unlikely possibility. As a result of the situation in the Middle East it is very diﬃcult to have a productive debate about reform of the law of occupation without the probability of the process falling victim to heated politics. In the short-term therefore it behoves us to continue to explore and comment on the law as it stands, and as it is aﬀected by other legal developments, to achieve some better clarity for the beneﬁt of those who ﬁnd themselves subject to such temporary circumstances and those who are obliged to administer them. Both the CPA and the US Supreme Court in Hamdan have relied upon the legal reasoning of the IMT 60 years ago to inﬂuence contemporary approaches to the interpretation and application of the law. Despite these quite diﬀerent situations, we argue that there are real commonalities in the approach of two institutions to the reasoning in the Nuremberg Judgment. Unfortunately, there is an additional commonality in both situations and that is the apparent willingness of the Bush Administration to override both institutions and to demonstrate a blatant disregard for the lessons from Nuremberg. In relation to the occupation of Iraq, there is a growing awareness that the Administration had its own ideas about its preferred to approach to the occupation and it demanded compliance irrespective of CPA reservations. In relation to the US military commissions, despite the Supreme Court’s decision in Hamdan on conspiracy, the Military Commissions Act of 2006 retains the oﬀence of conspiracy as a substantive oﬀence. It is a salutary lesson to have observed the Bush Administration’s determination 73 Observations of Colonel Michael Kelly as part of the CPA. 74 Email from Mr L.P. Bremer III to Colonel Michael Kelly, 13 September 2005 (copy on ﬁle with authors).

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to pursue its objectives in Iraq and in the military commissions with apparent disregard for the approaches of the CPA and the Supreme Court and their shared reliance on the Nuremberg Judgment. In both situations the Administration has been subject to sustained and relentless criticism and we suspect that history will judge the Administration harshly in both respects.

Chapter 7 The Crime of Aggression: Born of the Failure of Collective Security – Still Shackled to its Fate? Time to Catch Up or Part Ways Carrie McDougall*

I

Introduction

By the time the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court met in Rome from 15 June – 17 July 1998, the establishment of an international criminal court had been on the United Nations agenda for 50 years. The long incubation period can be attributed to numerous factors, including concern over the impact a permanent court could have on the sovereignty of States Parties; a lack of agreement as to whether or not the court’s jurisdiction should encompass war crimes committed in internal armed conﬂicts; whether or not crimes against humanity could be committed outside of an armed conﬂict; how jurisdiction in any given case should be established; how the court would be ﬁnanced; and a diﬀerence of opinion as to whether or not the court should have the power to impose the death penalty. Another key hurdle was the debate over whether or not the crime of aggression should be included within the court’s jurisdiction. The debate over the inclusion of the crime of aggression revolved around two unresolved issues; ﬁrstly, the deﬁnition of the state act element of the crime, and secondly, the conditions under which the proposed court should be able to exercise jurisdiction over the crime, or more speciﬁcally, whether or not a Security Council determination as to the existence of a state act of aggression should be a prerequisite for the exercise of the court’s jurisdiction, and if so, whether such a determination should be binding on the court. While there was signiﬁcant support for the inclusion of the crime of aggression within the International Criminal Court’s (ICC) jurisdiction at the

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This article has been prepared as part of a PhD thesis for the Faculty of Law, University of Melbourne. See, eg, Philippe Kirsch and Daryl Robinson, ‘Reaching Agreement at the Rome Conference’ in A. Cassese, P. Gaeta and R.W.D. Jones (eds), The Rome Statute of an International Criminal Court: A Commentary (2002) 67, 68-70.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 131-167.

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Rome Conference, Conference participants were polarised in relation to these deﬁnitional and jurisdictional issues. Despite this lack of agreement, a majority, led by members of the Non-Aligned Movement and several European states, were unwilling to adopt a statute that omitted the crime, given the historic role it played during the Nuremberg and Tokyo Trials. The suggestion that the Conference adopt a resolution noting the importance of the crime of aggression and requiring ongoing work was rejected out of the fear that this would allow the issue to be postponed indeﬁnitely. The Conference thus found the only compromise possible: aggression was listed as a crime within the jurisdiction of the Court, but the detail, where the devil lay, was left to another day. Thus art 5(1)(d) of the Rome Statute of the International Criminal Court gives the ICC jurisdiction over the crime of aggression. Article 5(2), however, qualiﬁes art 5(1)(d) by providing that:

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The Oﬃcial Records of the Plenary and Committee of the Whole reveal that of the 134 states that made statements relating to aggression during the debate, only 15 failed to indicate that they supported the inclusion of aggression within the jurisdiction of the Court (Australia, Brazil, Canada, Liechtenstein, Luxembourg, Malaysia, Mali, Mexico, Morocco, Norway, Pakistan, Rwanda, Togo, Turkey and the United States). Of these, only Morocco, Pakistan, Turkey and the US made statements that expressed any doubt as to the proposition that at least some types of state acts of aggression entail, or should entail, individual criminal responsibility. The lack of support demonstrated by the remaining 11 states appears to have been motivated not by any doubt as to the proper status of aggression as a crime, but rather by the fact that in the limited time allowed for the Conference, participants would be unable to overcome the diﬀerences existing between states in relation to the crime. For this reason, they urged the Conference to focus its attention on achieving agreement, at least in the interim, in relation to genocide, crimes against humanity and war crimes. See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 2nd-7th and 9th Plenary Meetings, UN Docs A/CONF.183/SR.4 (1998) – A/CONF.183/SR.7 (1998), A/ CONF.183/SR.9 (1998); Summary Record of the 3rd, 6th-11th, 25th-28th, 30th-31st and 33rd-36th Meetings of the Committee of the Whole, UN Docs A/CONF.183/ C.1/SR.3 (1998), A/CONF.183/C.1/SR.6 (1998) – A/CONF.183/C.1/SR.11 (1998); A/CONF.183/C.1/SR.25 (1998) – A/CONF.183/C.1/SR.28(1998), A/CONF.183/C.1/ SR.30 (1998) – A/CONF.183/C.1/SR.31 (1998), A/CONF.183/C.1/SR.33 (1998) – A/ CONF.183/C.1/SR.36 (1998). On the general negotiating process in Rome and aggression in particular, see Kirsch and Robinson, above n 1, 72-8; Benedetti and Washburn, ‘Drafting an International Criminal Court Treaty: Two Years to Rome and an Afterward on the Rome Diplomatic Conference’ (1999) 5(1) Global Governance 1-37; Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93 American Journal of International Law 2-12; M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999) 32 Cornell International Law Journal 443-69. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered 1 July 2002).

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The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 deﬁning the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Resolution F of the Final Act of the Conference mandated the Preparatory Commission to prepare proposals in relation to the crime of aggression, to be submitted to the Assembly of State Parties at a Review Conference, ‘with a view to arriving at an acceptable provision … for inclusion in the Statute’. The Preparatory Commission established the Working Group on the Crime of Aggression (WGCA) to carry out this mandate. Unfortunately, it remained unfulﬁlled at the time when the Preparatory Commission was dissolved and the Assembly of States Parties came into being pursuant to art 112 after the entry into force of the Rome Statute on 1 July 2002. Nevertheless, in its ﬁrst session, the Assembly created the Special Working Group on the Crime of Aggression (SWGCA), open to all UN Member States, and members of the specialised agencies or of the International Atomic Agency, to take over the unﬁnished business of the WGCA. While the SWGCA has made good progress in relation to a number of technical issues associated with the crime of aggression that were identiﬁed post-Rome, and seems to have reached general agreement in relation to the individual acts required to give rise to individual criminal responsibility for a state act of aggression, no agreement has yet been reached in relation to either the jurisdictional or deﬁnitional issues outlined above.

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UN Doc A/CONF.183/10 (1998), Annex I. Proceedings of the Preparatory Commission at its Second Session, 26 July – 13 August 1999, UN Doc PCNICC/1999/L.4/Rev.1 (1999), 8. Continuity of Work in Respect of the Crime of Aggression, Resolution ICC-ASP/1/Res.1, 9 September 2002, reproduced in Assembly of States Parties to the Rome Statute of the International Criminal Court, Oﬃcial Records of the First Session, 3-10 September, UN Doc ICC-ASP/1/3 (2002), 328. Preliminary List of Possible Issues Relating to the Crime of Aggression: Discussion Paper Proposed by the Coordinator, UN Doc PCNICC/2000/WGCA/RT.1 (2000). The list was revised in 2004: see List of Issues Relating to the Crime of Aggression, Annex I to Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, 21-23 June 2004, UN Doc ICC-ASP/3/SWGCA/INF.1 (2004). Ibid; Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, 13-15 June 2005, UN Doc ICC-ASP/4/SWGCA/INF.1; Comments made during the Intersessional Meeting of the Special Working Group on the Crime of Aggression, 8-11 June 2006, to which the author was a delegate (notes on ﬁle with author).

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II The Status of Current Debate This chapter’s focus is on issues relating to the deﬁnition of the state act element of the crime of aggression. The deﬁnitional issues requiring resolution before the Court’s jurisdiction over the crime of aggression can be activated are numerous and complex. One issue stands out, however, as being of primary importance. It must be decided whether or not the deﬁnition of a state act of aggression for the purpose of international criminal law is, or should be, identical to the deﬁnition of an act of aggression for the purpose of international peace and security law. If the answer to that question is negative, the obvious further question that arises is: which kinds of state uses of force do attract individual criminal responsibility? A large number of states agree that the deﬁnition of the state act element of the crime of aggression for the purposes of the Rome Statute should replicate, or be closely based on, the deﬁnition of aggression associated with the prohibition of the use of force under art 2(4) of the Charter of the United Nations. Such states suggest that failing to attach individual criminal responsibility to all violations of the prohibition of the use of force under art 2(4) (unless, perhaps, the violation could be described as de minimus) would be retrogressive and undermine the prohibition. More speciﬁcally, it has been argued that criminalising only the most serious forms of aggression could be seen as giving a ‘green light’ to lesser uses of armed force, potentially encouraging states to launch short, sharp armed attacks on other states. In addition, it has been noted that ‘tiny sparks often start oﬀ all-consuming conﬂagrations’ and that if the criminal law goals of deterrence and prevention are to be preserved it is necessary to criminalise all unlawful uses of force. Proponents of this view have tended to argue that the deﬁnition of the state act element of the crime of aggression for the purposes of the Rome Statute should be based on the language of art 2(4), or on the only existing deﬁnition of aggression, namely the deﬁnition annexed to General Assembly Resolution 3314 (XXIX) of 14 December 1974. Resolution 3314 was developed (over the course of 20 years of diﬃcult negotiations) for the purpose of assisting the Security Council to determine whether an act of aggression had occurred for the purpose of taking action under Chapter VII of the UN Charter. It incorporates both a general description of aggression (art 1) and an illustrative list of aggressive acts (art 3), at the same time as retaining discretion for the Security Council under 10

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Jennifer Trahan, ‘Deﬁning “Aggression”: Why the Preparatory Commission for the International Criminal Court has Faced such a Conundrum’ (2002) 24 Loyola of Los Angeles International and Comparative Law Review 439, 458. D.D.N. Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5, 24. Ibid 24. GA Res 3314 (XXIX), UN Doc, A/RES/3314 (XXIX), 14 December 1974.

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arts 2 and 4 to determine that, in the circumstances, an act listed under art 3 did not constitute aggression or, conversely, that an event not listed under art 3 did constitute aggression on the facts. Despite the many criticisms made of the ambiguous language employed by the Resolution and the questionable list of aggressive acts under art 3, utilisation of a pre-existing deﬁnition has an obvious appeal. Proponents of the opposing view (that the deﬁnition of aggression is diﬀerent for the varying purposes of international criminal and international peace and security law) argue that Resolution 3314 is itself evidence of their contentions. In this context, emphasis is placed on the fact that art 5(2) of the Resolution states that: ‘[a]ggressive war is a crime against international peace. Aggression gives rise to international responsibility.’ Despite the fact that the ﬁnal report of the Special Committee responsible for drafting the deﬁnition provided that ‘the words “international responsibility” are used without prejudice to the scope of this term’, it has been argued that the Resolution provides evidence of the fact that individual criminal responsibility attaches only to certain types of inter-state uses of armed force. States that contend a narrower deﬁnition of a state act of aggression is needed for the purposes of the crime have focussed on identifying an appropriate threshold to limit the types of state acts that attract individual criminal responsibility. According to such states, some kind of threshold is necessary in order to ensure that: (i) due regard is paid to art 5(1) of the Rome Statute, which states that ‘ … the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’; (ii) due regard is paid to art 39 of the UN Charter, which implies that the references to a threat to the peace, a breach of the peace and an act of aggression form an ascending hierarchy of seriousness; (iii) disputes (and the potential violation of the principle nullum crimen sine lege) are avoided in connection with the many ‘grey areas’ of international law associated with the prohibition of the use of force under art 2(4), including in relation to the permissible scope of self-defence, the legal status of the responsibility to protect/humanitarian intervention and the legal status of certain self-help remedies under customary international law; (iv) the crime is consistent with customary international law; and/or (v) the right to the legitimate use of armed forced in conformity of the Charter is not impinged upon.

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Twenty-Ninth Session, Report of the Special Committee on the Question of Deﬁning Aggression, Supplement No. 19, UN Doc A/9619 (1974), reproduced in Benjamin B. Ferencz, Deﬁning International Aggression: The Search for World Peace: A Documentary History and Analysis (1975) Vol II, 556, 560.

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More cynically, or perhaps realistically, it might be suggested that certain states are eager to ensure that their own past, and potentially future, activities remain outside the scope of any deﬁnition adopted. Thus far, a number of diﬀerent threshold levers have been proposed by members of the SWGCA, including: – reference to a ‘manifest’, ‘clear’ or ‘ﬂagrant’ violation of the UN Charter; – reference to the use of armed force to attack the territorial integrity or political independence of another state ; – reference to the scale of the act being ‘high enough’ to ‘seriously impair’ the territorial integrity or political independence of the victim state;  and – qualiﬁcation of the character, gravity and scale of the state act. Another lever proposed during the post-Rome negotiations by Russia (but based on long-standing pre-Rome proposals) was that the state act element of the crime of aggression be deﬁned simply as ‘a war of aggression’, an idea taken from the Nuremberg/Tokyo incarnation of the crime. This proposal has attracted two principal criticisms. Firstly, that references to a war of aggression may not capture the types of inter-state uses of force of greatest concern in the 21st century; and secondly, that it is something of a circuitous deﬁnition as a result of the fact that the Nuremberg and Tokyo Tribunals failed to provide a clear deﬁnition of the term. In an attempt to avoid the latter criticism, Germany proposed that aggression be deﬁned as: an armed attack directed by a State against the territorial integrity or political independence of another State when this armed attack was undertaken in manifest contravention of the Charter of the United Nations with the object or result

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Proposed Text on the Deﬁnition of the Crime and Act of Aggression: Proposal Submitted by the Delegation of Colombia, UN Doc PCNICC/2002/WGCA/DP.3 (2002), (‘Proposal Submitted by Colombia’). Proposal Submitted by Guatemala on Document PCNICC/2001/WGCA/DP.2, UN Doc PCNICC/2001/WGCA/DP.3 (2001), (‘Proposal Submitted by Guatemala’). Discussion Paper Proposed by the Coordinator, UN Doc PCNICC/2002/WGCA/ RT.1/Rev.2 (2002). Proposal Submitted by Bosnia and Herzegovina, New Zealand and Romania: Deﬁnition of the Crime of Aggression, UN Doc PCNICC/2001/WGCA/DP.2 (2001). Proposal Submitted by Guatemala, above n 16. Proposal Submitted by Colombia, above n 15. Proposal Submitted by the Russian Federation, UN Doc PCNICC/19999/DP.12 (1999).

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of establishing a military occupation of, or annexing, the territory of such other State or part thereof by armed forces of the attacking State.

Germany’s deﬁnition includes multiple threshold levers intended to operate cumulatively. Most important in the context of this paper is the reference to an act that has the object or result of occupation or annexation. Read together with an informal discussion paper circulated by Germany, this is understood to be an attempt to translate into a more workable deﬁnition those acts that were criminalised under the jurisprudence of the Nuremberg and Tokyo Tribunals. It should ﬁrstly be noted that equal or greater physical and political devastation can be wreaked without the utilisation of occupation or annexation, such as by an intensive aerial bombing campaign, or the dropping of a single nuclear weapon. Perhaps, more importantly, however, what this chapter seeks to establish is that the German deﬁnitional model is narrower than the customary international law stemming from Nuremberg and Tokyo on which the deﬁnition claims to be based. Proposals that the term ‘a war of aggression’ or a reference to occupation or annexation be incorporated into the deﬁnition of the state act element of the crime of aggression have yet to achieve majority support in the SWGCA. Nonetheless, they were incorporated into the 2002 Coordinator’s Draft Deﬁnition, which still forms the basis of the SWGCA’s discussions and the proposals have a following, including, notably, support from Russia, the UK, the US and seemingly China. 22 23 24

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Proposal Submitted by Germany, UN Doc PCNICC/1999/DP.13 (1999). Proposal Submitted by Germany: The Crime of Aggression: A Further Informal Discussion Paper, UN Doc PCNICC/2000/WGCA/DP.4 (2000). Discussion Paper Proposed by the Coordinator, UN Doc PCNICC/2002/WGCA/ RT.I/Rev.2 (2002), (‘Coordinator’s Draft Deﬁnition’). The relevant parts of paragraphs 1 and 2 of the Coordinator’s Draft Deﬁnition read as follows: 1 … an act of aggression which, by its character, gravity and scale, constitutes a ﬂagrant violation of the Charter of the United Nations. Option 1: Add ‘such as, in particular, a war of aggression or an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof.’ Option 2: Add ‘and amounts to a war of aggression or constitutes an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof.’ Option 3: Neither of the above For the purposes of paragraph 1, ‘act of aggression’ means an act referred to in United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, which is determines to have been committed by the State concerned … It should be noted that Germany may have resiled from its own position somewhat. See Hans-Peter Kaul, ‘The Crime of Aggression: Deﬁnitional Options for the Way Forward’ in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004) 97, 100; ‘Compilation of State Responses to Discussion Paper No 1 Submitted to the SWGCA Virtual Working Group’ (compiled by Phani

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It is thus a distinct possibility that, despite the concerns associated with these deﬁnitions outlined in brief above, if a more satisfactory deﬁnition cannot be identiﬁed, a reference to wars of aggression or acts with the object or result of occupation or annexation could be utilised as part of a package compromise deal to give the ICC jurisdiction over at least a limited form of the crime, rather than it being left in limbo for the foreseeable future. The concern this raises relates to the lack of understanding of the meaning of the term ‘a war of aggression’ under customary international law and the lack of appreciation for other types of acts that were viewed as being capable of attracting individual criminal responsibility by the post-war Tribunals. For, while 60 years have passed since the Nuremberg and Tokyo Trials, surprisingly little academic attention has been devoted to an analysis of this issue. III

Crimes against Peace: An Introduction

In the aftermath of the devastation that was World War Two, the attempt of the Tribunals to identify the jus ad bellum and to apply this law to still smouldering facts stretching across both borders and years is remarkable – no matter how many ﬂaws one can identify in that process. In particular, despite their shortcomings, the Judgments of the International Military Tribunal (IMT) and International Military Tribunal of the Far East (IMTFE), combined with the decisions of the US and French military tribunals in the Roechling, Farben, Krupp, Ministries and High Command Cases, signify the high point of the jurisprudence of crimes against peace, the predecessor of the crime of aggression. For, while the concept of criminal responsibility for the waging of aggressive wars was not totally neglected in the years sandwiched between the post-war trials and the adoption of the Rome Statute, crimes against peace spent much of that time in the ‘too hard’ basket.

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Livada and circulated to delegates to the 2006 SWGCA Intersessional meeting to which the author was a delegate. Notes on ﬁle with author), II. Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v Hermann Roechling et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1952) Vol XIV, Appendix B (‘Roechling’). US v Carl Krauch et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1952) Vol VII-VIII (‘Farben’). US v Alfried Felix Alwyn Krupp von Bohlen und Halbach et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1950) Vol IX (‘Krupp’). US v Ernst von Weizsäcker et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (1951) Vol XII-XIV (‘Ministries Case’). US v Wilhelm von Leeb et al, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council No 10 (1951) Vol X-XI (‘High Command Case’).

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Legal analysis of the Tribunals’ handling of crimes against peace has focussed almost exclusively on the question of whether the crime was created by the Allies ex post facto and thus whether the Tribunals were in violation of the principle of nullum crimen sine lege in convicting and punishing German and Japanese defendants for crimes against peace. In the opinion of this author, others have adequately demonstrated elsewhere that the IMT (and the IMTFE and the US military tribunals which followed in its footsteps) were wrong to declare that the IMT Charter was ‘the expression of international law existing at the time of its creation’ and wrong to decide that it was unnecessary for either conventional or customary international law to clearly provide that the planning or waging of aggressive war was a crime prior to the enactment of the IMT Charter. 31

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See for example Max Radin, ‘Justice at Nuremberg’ (1946) 24 Foreign Aﬀairs 369, 380; Matthew Lippman, ‘Nuremberg: Forty-Five Years Later’ (1991) 7 Connecticut Journal of International Law 1, 44; Bryan F. MacPherson, ‘Building an International Criminal Court for the 21st Century’ (1998) 13 Connecticut Journal of International Law 1, 9; Ahmed M. Rifaat, International Aggression: A Study of the Legal Concept: Its Development and Deﬁnition in International Law (1979) 132; Gordon Ireland, ‘Ex Post Facto from Rome to Tokyo’ (1947-8) 21 Temple Law Quarterly 27, 58; Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1 International Law Quarterly 153, 155; Jonathan A. Bush, ‘“The Supreme … Crime” and its Origins: The Lost Legislative History of the Crime of Aggressive War’ (2002) 102 Columbia Law Review 2324, passim; Franz B. Shick, ‘The Nuremberg Trial and the International Law of the Future’ (1947) 41 American Journal of International Law 770, 780-2; William B. Simons, ‘The Jurisdictional Bases of the International Military Tribunal at Nuremberg’ in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Trial and International Law (1990) 39-59; Hans Ehard, ‘The Nuremberg Trial against the Major War Criminals and International Law’ (1949) 43 American Journal of International Law 223, 230-1, 236-9; Franz B. Shick, ‘Crimes against Peace’ (1948) 38 Journal of Criminal Law and Criminology 445, 457-8; George A. Finch, ‘The Nuremberg Tribunal and International Law’ (1947) 41 American Journal of International Law 20, 26; M. Cherif Bassiouni, ‘Nuremberg Forty Years After’ (1986) 80 American Society of International Law Proceedings 59, 61. Cf Qunicy Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 American Journal of International Law 38, 49-51, 59; Sheldon Glueck, ‘The Nuremberg Trial and Aggressive War’ (19456) 59 Harvard Law Review 396, 401-18; John Alan Appleman, Military Tribunals and International Crimes (1954) 27; I.I. Lukashuk, ‘International Illegality and Criminality of Aggression’ in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Tribunal and International Law (1990) 121, 129. United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (1947) Vol 1, Judgment, 461 (‘Trial of the Major War Criminals’). Ibid Vol 1, Judgment, 463-4. In relation to the ﬁndings of the IMTFE on these points, see United States et al v Sadao Araki et al in The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East, with an Authoritative Commentary and Comprehensive Guide (2002) Vol 101, Judgment, 48 437, 48 43940 (‘Tokyo Major War Crimes Trial’). See also Ministries Case, above n 29, Vol XIV, Judgment, 318-9. Special attention, however, should be paid to the separate and dis-

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Nonetheless, the somewhat dubious origins of crimes against peace have been eclipsed by the crime of aggression’s inclusion in the Rome Statute. More important in the context of the crime’s deﬁnition is the implication that, having been invented by the Allies, the content of the crime at the time of the Nuremberg and Tokyo Trials is found exclusively in the IMT and IMTFE Charters and Control Council Law No 10. In other words, no broader customary crime could then be said to exist. This makes it essential to understand the interpretation given to the statutory provisions deﬁning crimes against peace by the post-war military tribunals. IV What is a War of Aggression? On 8 August 1945, the IMT Charter was signed by the UK, France, the US and the USSR. Article 6(a) of the Charter deﬁned crimes against peace as the: planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The Charter of the IMTFE, issued by Special Proclamation of the Supreme Commander for the Allied Powers, General Douglas MacArthur, on 19 January 1946, contained an almost identical deﬁnition of crimes against peace under art 5(a), diﬀering only in that it speciﬁed the crime applied to both declared and undeclared wars, which only made explicit what had been implicit in the IMT Charter. Article II(1)(a) of Control Council Law No 10, which governed the subsequent trials of war criminals in post-war occupied Germany, diﬀered

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senting opinions handed down by members of the IMTFE: Tokyo Major War Crimes Trial, Vol 105, Dissenting Opinion of Justice Henri Bernard (Member for France), 10; Vol 109, Separate Opinion of Justice Bernard Röling (Member for the Netherlands), 44-5; Vol 105, Dissenting Opinion of Justice Rabhabinod Pal (Member for India), 151, 152, 1226. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279 (‘London Agreement’ and ‘IMT Charter’). The London Agreement was subsequently adhered to by an additional 19 states. Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, amended 8 August 1945, TIAS 1589, 4 Bevans 20 (‘Charter of the IMTFE’). United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) 258-9. Control Council Law No 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, signed 20 December 1945, in Oﬃcial Gazette of the Control Council for Germany, No 3, Berlin, 31 January 1946, 50-5.

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more signiﬁcantly from art 6(a) of the IMT Charter in that its deﬁnition made reference to invasions and noted that the list of acts capable of constituting the crime was not exhaustive, as follows: Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

In his opening address for the Prosecution before the IMT, Justice Robert Jackson conceded that ‘it is perhaps a weakness in this Charter that it fails to deﬁne a war of aggression’. Some attempt was made to correct this weakness by US Military Tribunal V in the High Command Case, when it stated that it was ‘necessary to give brief consideration to the nature and characteristics of war’. Denying the need to ‘attempt a deﬁnition that is all-inclusive or all-exclusive’, the Tribunal deﬁned war as ‘… the exerting of violence by one State or politically organised body against another’. A further deﬁnition of war was provided by Justice Pal of the IMTFE in his Dissenting Opinion. His Honour deﬁned war as ‘a contention between two or more States through their armed forces, for the purpose of overpowering each other’. Justice Pal continued: ‘War is actually in existence if the other party forcibly resists acts of force undertaken by a State.’ The only attempted deﬁnitions of aggression or aggressive war were provided in the High Command Case, the Tribunal holding that ‘the changing or attempting to change … international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war’. Criticisms may of course be made of these deﬁnitions. Particularly vulnerable is the reference to violence without any qualiﬁcation in the High Command Case and the failure of each of the deﬁnitions to provide any guidance as to the characteristics, in terms of nature, scale, intensity or duration, that armed force must possess to pass the threshold test of ‘war’. What is more notable, however, is the fact that these scant deﬁnitions are the only attempts made at deﬁning war, aggression, or a war of aggression found in any of the Tribunal Judgments. The consensus view among commentators is that the IMT agreed with British Prosecutor, Sir Hartley Shawcross’ submission in his opening statement 38 39 40 41 42 43

Trial of the Major War Criminals, above n 32, Vol 2, 2nd day, 148. High Command Case, above n 30, Vol XI, Judgment, 485. Ibid. Tokyo Major War Crimes Trial, above n 33, Vol 105, Dissenting Opinion of Justice Pal, 1020. Ibid Vol 105, Dissenting Opinion of Justice Pal, 1020-1. High Command Case, above n 30, Vol XI, Judgment, 490.

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that the Tribunal should ‘not allow itself to be deﬂected from its purpose by attempts to ventilate … what is an academic, and, in the circumstances, an utterly unreal controversy as to what is a war of aggression’ given that there was: no deﬁnition of aggression, general or particular, which does not cover abundantly and irresistibly and in every material detail the premeditated onslaught by Germany upon the territorial integrity and the political independence of so many States.

This was certainly the position adopted by the IMTFE. It described the Japanese attacks launched on 7 December 1941 against Britain, the US and the Netherlands as ‘unprovoked attacks, prompted by the desire to seize the possessions of these nations’. The Tribunal continued: Whatever may be the diﬃculty of stating a comprehensive deﬁnition of ‘a war of aggression’, attacks made with the above motive cannot but be characterised as wars of aggression.

Thus the most authoritative statement produced by the post-war Tribunals is that an unprovoked attack, prompted by the desire to seize the possessions of the attacked, is one form of a war of aggression. This is clearly far from a satisfactory deﬁnition of the state act element of a crime. The false assumption seemingly made by the Tribunals was that at least the core meaning of the terms ‘war’ and ‘aggression’ were well understood under international law. In fact, the exact opposite was true in 1945, and is arguably still true today. A

Quantifying or Qualifying War

While ‘war’ was a notion frequently referred to by international law texts, treaties and arbitral decisions before 1945, it possessed no accepted deﬁnition. Rather it was taken for granted that there existed a common understanding as to the meaning of the term. Thus the key pre-war pillars of international law relevant to the regulation of ‘war’ (the Geneva and Hague Conventions, the Covenant of the League of Nations and the Kellogg-Briand Pact) all made reference to the term ‘war’ without providing any deﬁnition of it. From some angles it is easy to be sympathetic to the view that the applicability of the epithet of war is often unquestionable, such as in circumstances of a sustained battle of great intensity between two states. Such scenarios, however, are thrown into sharp relief if one 44 45 46

Trial of the Major War Criminals, above n 32, Vol 3, 12th day, 108. Tokyo Major War Crimes Trial, above n 33, Vol 103, Judgment, 49 584. Ibid Vol 103, Judgment, 49 584; Vol 109, Separate Opinion of Justice Röling, 50.

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considers border incidents, minor skirmishes, or even a single use of force so overwhelming that it destroys the ability of the attacked state to oﬀer any form of resistance at all. One might also consider the fact that a declaration of war can create a state of war without the ﬁring of a single shot. Indeed, Brownlie asserts that from the 19th century up until the time of the Nuremberg and Tokyo Trials, customary international law provided that war was: not a legal concept linked with objective phenomena such as large-scale hostilities between the armed forces of organised State entities but a legal status the existence of which depends on the intention of one or more of the States concerned.

While this ‘state of war’ doctrine may have represented customary international law, Brownlie himself acknowledges that the term ‘war’ was not employed in this restrictive sense in treaties such as the Kellogg-Briand Pact. Thus, at the very least, it can be said that there were multiple meanings of the term ‘war’ and not all of these meanings had an agreed deﬁnition. The only consideration of what types of acts qualify as falling within the ambit of the term ‘war’ was provided by the IMTFE in relation to Japan’s skirmishes with Soviet border guards in 1938 and 1939. The relevant facts as related by the Tribunal were as follows. In July 1939, Japanese guards on the Soviet border in the region of Lake Khassan were strengthened and Japan made demands for territory in the area. On 29 July 1938, a small number of Japanese troops, ‘probably not exceeding one company’, attacked, overwhelming the small Soviet border guard. Soviet reinforcements then drove the Japanese from the ground they had taken. Japan returned the attack with the main forces of one division. Fighting continued until 11 August 1938, by which time the Japanese forces had been defeated, resulting in the negotiation of a peace agreement leaving the USSR in possession of the disputed territory.

47

48

49

50 51 52 53

Ian Brownlie, International Law and the Use of Force by States (1963) 26-7, 38. Brownlie notes that the state of war doctrine was admitted ‘by most though by all means not all writers’. Ibid. Brownlie notes that there were strong incentives for giving a use of force a label other than ‘war’ including the developing jus in bello and the symbolic signiﬁcance of the term: at 27. Ibid 84-8. General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 57 (entered into force 24 July 1929). Tokyo Major War Crimes Trial, above n 33, Vols 102-3, Judgment, 48 731, 49 390-1. Ibid Vol 102, Judgment, 40 393-4. Ibid Vol 102, Judgment, 49 394. Ibid Vols 101-2, Judgment, 48 732, 49 394.

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The majority rejected the defendants’ claim that this had been a mere border incident, ﬁnding that the hostilities had been deliberately planned for the purpose of either feeling out Soviet strength in the area or to seize the strategically important territory, which overlooked the line of communication to Vladivostock and the Maritime Province. It was concluded that the attack, having been ‘undertaken with substantial force cannot be regarded as a mere clash between border patrols’. The Tribunal continued: Though the force employed was not very large the purpose above mentioned and the result if the attack had been successful are suﬃcient in the opinion of the Tribunal to justify describing the hostilities as a war.

A more detailed measurement of the scale, intensity and duration required for force to qualify as ‘war’ was provided by the Tribunal in relation to the hostilities carried out between May and September 1939 in the Nomenhan Area on the boundary between Manchukuo, occupied by Japan, and Outer Mongolia, which was protected by Soviet troops under the terms of a 1936 mutual assistance agreement. The Tribunal described the hostilities in this instance as being ‘on a very much larger scale’ than those in Lake Khassan. Hostilities opened on 11 May 1939 with several hundred Japanese reconnaissance troops attacking Mongolian border guards. Small groups of Japanese soldiers made several further attacks between 11 and 27 May, each of which was repulsed. On 28 May, ﬁghting broke out on a large scale, with the arrival of support troops, aircraft, artillery and tanks. According to the Tribunal, thereafter ‘the struggle developed on an increasing scale and was only then terminated in September when the Japanese admitted defeat’. The Tribunal provided these additional details: It is diﬃcult to say with accuracy the size of the forces employed but that they were large can be judged from the various estimates of total casualties and the area of the operations. The Japanese casualties in killed, wounded and prisoners exceeded 50,000, the Mongolian-Soviet forces being more than 9,000. The operations were on a front of 50 to 60 kilometers and a depth of 20 to 25 kilometers.

The Tribunal continued: 54 55 56 57 58 59 60

Ibid Vol 102, Judgment, 49 395. Ibid. Ibid. Ibid Vol 102, Judgment, 49 397-8. Ibid Vol 102, Judgment, 49 396. Ibid Vol 102, Judgment, 49 398. Ibid.

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… [the] operations were on a large scale extending over a period of four months; they were obviously undertaken by the Japanese after careful preparation … and the intention was to exterminate the enemy troops opposing them. The contention that the incident was a mere clash between opposing border guards is therefore untenable. In the circumstances the Tribunal holds that the operations amounted to an aggressive war waged by the Japanese.

Sparse though the details of the Japanese–Soviet clashes are, it is clear from the Tribunal’s comments that measurements of scale and duration (and impliedly, intensity) can be used to determine whether or not an inter-state use of force can accurately be described as war. The second conclusion that appears to emerge from these passages (particularly the Tribunal’s conclusion in relation to the hostilities surrounding Lake Khassan) is that the purpose of an initiation of hostilities can be used to determine whether a clash of the armed forces of two or more states qualiﬁes as a ‘war’. This conclusion is far more dubious. Purpose would seem to be far more relevant to the assignation of a war as aggressive or defensive. And in fact purpose was the key indicator used by the Tribunals to determine the character of the wars they were asked to examine, as outlined below. B We Know Aggression When We See It Unlike the term ‘war’, it was quite clear to international scholars and statesmen in the inter-war years that the terms ‘aggression’ and ‘aggressive’ did not have even commonly accepted meanings, let alone a formal deﬁnition under conventional or customary international law, as evidenced by the international community’s eﬀorts to achieve consensus as to the meaning of these terms in the years leading up to World War Two. According to Brownlie, the term ‘aggression’ originated in diplomatic exchanges between the British and French in the late 18th century. Brownlie states that the term at this time connoted a military attack by the forces of one state against the territory or vessels of another. It did not imply censure, as demonstrated by the fact that it was often used in conjunction with words such as ‘unjust’ or ‘unprovoked’. Brownlie says that ‘aggression’ acquired a pejorative meaning sometime before 1914 and was used by the Allied Supreme Council in 1919 to describe an unlawful resort to force. The Covenant of the League of Nations referred in art 10 to ‘external aggression’, but it did not deﬁne the phrase and did not explain the distinction, if any, between it, and the term ‘war’, which is otherwise used consistently

61 62 63

Ibid Vol 102, Judgment, 49 402-3. Brownlie, above n 47, 351. Incorporated into the Treaty of Peace with Germany (Treaty of Versailles), opened for signature 28 June 1919, 2 Bevans 43 (entered into force 10 January 1920).

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throughout the Covenant. The 1923 Draft Treaty of Mutual Assistance was of some assistance in deﬁning aggression: art 1 noted that a war launched by a state complying with the provisions of arts 12 to 15 of the League Covenant against a state that refused to accept the decision of an arbitral committee, the Permanent Court of International Justice or the League Council was not a war of aggression – so long as such war was not waged with the intention of violating the political independence or territorial integrity of the latter state. The League’s Permanent Advisory Committee and the Special Committee of the Temporary Mixed Commission, which were asked to review the Draft Treaty, formed the conclusion that it was desirable, but not possible to deﬁne aggression. Instead, the Special Committee recommended that the League Council have complete discretion in determining whether an act of aggression had taken place for the purpose of mobilising collective security arrangements under the Draft Treaty. A list of indicia of aggression was supplied to assist the Council, however, including: industrial, economic or military mobilisation; air, chemical or naval attack; the presence of the armed forces of one party in the territory of another; refusal to withdraw armed forces behind a line; ‘a deﬁnitely aggressive policy by one of the parties towards the other’; and the refusal of a party to submit the dispute to the League’s dispute resolution mechanisms. The Draft Treaty, however, was never adopted, as a majority of Member States baulked at the idea of decommissioning their weapons and placing their faith in collective security while the memories of World War One were still so raw. The failure of the treaty was also at least partly the result of concerns as to the ability of the suggested deﬁnition of aggression to provide an appropriate outcome in all circumstances. A further attempt to deﬁne aggression was made by the US in its Draft Treaty of Disarmament and Security. The Draft Treaty speciﬁed that an act of war initiated for a purpose other than defence, acts of aggression not amounting to war, and preparation for such acts of aggression were forbidden by international law. The deﬁnition of aggression proposed was measures of force by land, sea or air taken by one state against another, absent the state of war, for a purpose other than defence. Thus for the ﬁrst time, acts of aggression, distinct from war, were clearly articulated as being an international wrong.

64 65

66 67 68 69

Published 8 June 1923, reproduced in Ferencz, above n 14, Vol 1, 77-80. Opinion of the Permanent Advisory Commission Regarding Assembly Resolutions XIV and XV, reproduced in Ferencz, above 14, Vol 1, 70, 73; Commentary on the Deﬁnition of a Case of Aggression: Drawn up by a Special Committee of the Temporary Mixed Commission, reproduced in Ferencz, above n 14, Vol 1, 81, 81. Ibid Vol I, 83. Reproduced in Ferencz, above n 14, Vol 1, 124-7. Ibid arts 2,4 and 5. Ibid art 5.

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The Draft Treaty, however, attracted little support, and was eventually merged with proposals sponsored by Britain and France to form the text of the 1924 Geneva Protocol for the Paciﬁc Settlement of International Disputes. It deﬁned aggressors as states resorting to war in violation of the League Covenant or the Protocol itself. The Protocol speciﬁcally provided that states that refused to comply with any aspect of the paciﬁc settlement procedure outlined in the Protocol were presumed to be aggressors, although such presumption could be reversed by a unanimous decision of the Council. If the Council was unable to identify the aggressor, it was to impose an armistice upon the belligerents, the violation of which also deemed a state to be an aggressor. While this deﬁnition was more comprehensive than its predecessors, and was adopted unanimously by the League’s Assembly and signed by 19 states on 2 October 1924, the Protocol failed to attract the requisite number of ratiﬁcations to enter into force. Part of the diﬃculty associated with these failed international agreements was the divide between states as to whether it was preferable to deﬁne aggression in advance (in either general or enumerative terms) or whether the occurrence of aggression was something that necessarily had to be determined on a case by case basis. Another common fear was best expressed by Sir Austen Chamberlain, who stated in the House of Commons in 1927: ‘I … remain opposed to this attempt to deﬁne the aggressor, because I believe that it will be a trap for the innocent and a sign-post for the guilty’. The report of the League appointed Committee on Arbitration and Security, mandated to deﬁne aggression in the lead up to the 1933 Disarmament Conference, supported the indicia of aggression proposed by the 1923 Special Committee of the Temporary Mixed Commission outlined above, suggesting the addition of (i) refusal to submit a dispute for paciﬁc settlement or failure to 70 71 72 73

74 75

Matthew Lippman, ‘The History, Development and Decline of Crimes against Peace’ (2004) 36 George Washington International Law Review 957, 973. Reproduced in Ferencz, above n 14, Vol 2, 132-7. Resorting to war was deﬁned to include a violation of rules establishing demilitarised zones. According to the General Report Submitted to the Fifth Assemble on behalf of the First and Third Committees by M. Politis (Greece), Rapporteur for the First Committee, and M. Benes (Czechoslovakia), Rapporteur for the Third Committee, Arbitration, Security and Reduction of Armaments, (1924-25) reproduced in Ferencz, above n 14, Vol 2, 147, while the text of art 10 refers to resort to war, ‘it was understood during the discussion that, while mention was made of the most serious and striking instance, it was in accordance with the spirit of the Protocol that acts of violence and force, which possibly may not constitute an actual state of war, should nevertheless be taken into consideration by the Council.’ Geneva Protocol for the Paciﬁc Settlement of International Disputes, above n 71, art 10. Cited in Question of Deﬁning Aggression: Report of the Secretary-General, Annexes (VII) (1952-3), reproduced in Ferencz, above n 14, Vol 1, 96-186, 152.

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observe accepted military restrictions; and (ii) violation of a demilitarised zone. The undeniable theme of the Committee’s report, however, was the potential for ambiguous deﬁnitions of the terms ‘aggression’ and ‘resort to war’ to produce unwarranted, or at least unwanted, results. Committee members appeared to be particularly concerned that hard-and-fast deﬁnitions may oblige the Council or Member States to pronounce on a breach of the Covenant and apply sanctions ‘at a time when it would still be preferable to refrain for the moment from measures of coercion’. Of equal concern was the opposing risk that ‘criteria might be taken which, in unforeseen circumstances, might lead to a State which was not really responsible for hostilities being described as an aggressor’. During the Disarmament Conference itself, the USSR proposed a draft deﬁnition of an ‘aggressor’. The deﬁnition, as amended by the Committee on Security Questions, provided that the aggressor was that state which was the ﬁrst to take any of the following actions: (a) declaration of war against another state; (b) the invasion by its armed forces of the territory of another state without the declaration of war; (c) bombarding the territory of another state by its land, naval or air forces or knowingly attacking the naval or air forces of another state; (d) the establishment of a naval blockade of the coast or ports of another state; (e) provision of support to armed bands formed in its territory which have invaded the territory of another state, or refusal, notwithstanding the request of the invaded state, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection. A protocol annexed to the deﬁnition speciﬁed that no political, strategic or economic considerations were to be accepted as a justiﬁcation for aggression. According to the Committee rapporteur, the intention was that only self-defence could justify an act of aggression. Ultimately, however, this deﬁnition was also rejected by the international community, although the USSR did enter into a number of regional non-aggression treaties that employed the deﬁnition. Again,

76 77 78 79

80

Memorandum on Articles 10, 11 and 16 of the Covenant, submitted by M. Rutgers, Rapportuer, para 120 reproduced in Ferencz, above n 14, Vol 2, 173-89, 174. Ibid Vol 2, 189. Ibid. Conference for the Reduction and Limitation of Armaments, General Commission, Report of the Committee on Security Questions, Rapporteur M. Politis, Conf.D./ C.G./108, Conf.D./C.P./C.R.S./9(1), reproduced in Ferencz, above n 14, Vol 2, 21527, 224. Ibid Vol 2, 220.

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the key concern was whether an aggressor could be deﬁned ‘in so automatic and mechanical a way’. Finally, note should be made of the fact that attempts to deﬁne aggression had to be abandoned on the very eve of the Nuremberg Trial during the negotiation of the UN and IMT Charters. The UN Charter does not contain a deﬁnition of ‘act of aggression’ – or an explanation of how aggression diﬀers from any of the related terms employed throughout the document, namely ‘armed force’, ‘threat or use of force’, ‘threat to the peace’, ‘breach of the peace’ and ‘armed attack’. The omission of such deﬁnition was deliberate. At the United Nations Conference on International Organisation held in April 1945 several delegations called for the terms ‘threat to the peace’, ‘breach of the peace’ and ‘act of aggression’ to be deﬁned. Bolivia and the Philippines proposed concrete deﬁnitions that were hotly debated by the Enforcement Arrangements Committee. The majority of Committee members, however, were of the view that it would be impossible to list all cases of aggression, given the rapid development of techniques of war. A suggestion that a non-exhaustive deﬁnition be utilised instead was considered problematic on the basis that the Council would tend to consider any act not speciﬁcally listed as less important, and that omissions could advantage an aggressor or delay action by the Council. Conversely, concern was expressed that listed examples of aggression could cause the Council to apply collective sanctions prematurely. In light of such diﬃculties, and perhaps in the knowledge that a

81

82 83 84 85 86 87 88

89

Conference for the Reduction and Limitation of Armaments, Minutes of the Eighth Meeting: Deﬁnition of Aggression: Draft Declaration Proposed by the Delegation of the USSR: General Discussion, 10 March 1933, Delegate Yada from Japan, reproduced in Ferencz, above n 14, Vol 2, 205-14, 212. This term is used in arts 1(1) and 39. The terms ‘aggressive policy’ and ‘aggression’ are also used in art 53. See Preamble. See art 2(4). See arts 1(1) and 39. See arts 1(1) and 39. See art 51. The oﬃcial French text refers to ‘aggression armée’. See United Nations Conference on International Organisation, Proposals of the Delegation of the Republic of Bolivia for the Organisation of a System of Peace and Security and Proposed Amendments to the Dumbarton Oaks Proposals Submitted by the Philippine Delegation, 5 May 1945, reproduced in Ferencz, above n 14, Vol 2, 313-21, 322-7. United Nations Conference on International Organisation, Commission III, Security Council, Committee 3, Enforcement Arrangements, Report of Mr Paul Boncour, Rapporteur on Chapter Viii, Section B, Doc 881(English), III/3/46, 10 June 1945, reproduced in Ferencz, above n 14, Vol 2, 349-61, 352.

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deﬁnitional debate could have bought the negotiation of the UN Charter to a standstill, the term aggression was retained, but not deﬁned. During the negotiation of the IMT Charter at the London Conference, the American delegation went to lengths to convince the other Allies of the necessity of including a deﬁnition of aggression in the Charter, for the principal reason that it would prevent German defendants from arguing that war had been fought in self-defence. Justice Robert Jackson, representing the US, initially favoured the deﬁnition of aggression found in the 1933 non-aggression treaty between Afghanistan, Estonia, Latvia, Persia, Poland, Rumania, Turkey and the USSR, which replicated the abandoned Disarmament Conference draft deﬁnition. Later he advocated a more limited version of this deﬁnition, namely the declaration of war on another state, an invasion by armed forces of the territory of another state, or attack by land, naval or air forces on the territory, vessels or aircraft of another state. On the point of deﬁnitions, however, the French and Soviet delegations refused to compromise, maintaining that the deﬁnition of aggression was outside of the Conference’s competence. General Nikitchenko of Russia may have better captured the real problem when he noted that: …aggression has become sort of a formula in itself. Apparently, when people speak about ‘aggression’, they know what it means, but, when they come to deﬁne it, they come up against diﬃculties which it has not been possible to overcome up to the present time.

Indeed, as the General noted when Jackson tried during the last days of the Conference to convince his colleagues of the virtue of a deﬁnition: ‘[i]f we start discussion on that again, I am afraid the war criminals would die of old age.’ Before World War Two then, ‘aggression’ was sometimes used interchangeably with the term ‘war’. At other times it acted as a qualiﬁcation, to distinguish a war of aggression from one of self-defence. There also appeared to be developing before World War Two an understanding that aggression was a concept that 90 Umberto Leanza, ‘The Historical Background’ in M. Politici and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004) 3, 4-5. 91 ‘Minutes of Conference Session of 26 June and 19 July 1945’, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington: United States Department of State, 1949). 92 ‘Minutes of Conference Session of 17 July 1945’, in Report of Robert H. Jackson, above n 91. 93 ‘Suggested text for consideration as an addition to Article 6, submitted by the American Delegation, 25 July 1945’, in Report of Robert H. Jackson, above n 91. 94 ‘Comments of General Nikolay Nikitchenko, Minutes of Conference Session of 23 July 1945’, in Report of Robert H. Jackson, above n 91. 95 ‘Minutes of Conference Session of 25 July 1945’, in Report of Robert H. Jackson, above n 91.

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overlapped with war, but was not identical to it. Despite numerous deﬁnitional attempts, however, there was, in 1945, no agreed deﬁnition of the terms ‘aggression’ or ‘war of aggression’. Before the IMT, Justice Jackson submitted that the Tribunal should rely on a deﬁnition of aggression closely modelled on the 1933 Disarmament Conference deﬁnition referred to above. Before the IMTFE, Chief Prosecutor Keenan submitted three deﬁnitions of aggression for the Tribunal’s consideration. The ﬁrst two came from Webster’s New International Dictionary (2nd ed, 1943): A ﬁrst or unprovoked attack, or act of hostility … A nation that refuses to arbitrate or accept an arbitration award, or any other peaceful method, in the settlement of a dispute but threatens to use force or to resort to war.

The third proposed deﬁnition was attributed to James T. Shotwell: ‘[t]he aggressor being that state which goes to war in violation of its pledge to submit the matter to peaceful settlement, having already agreed to do so.’ Thus it was open to the IMT and IMTFE to interpret the term ‘war of aggression’ widely. The Tribunals, however, failed to embrace a broad deﬁnition of this nature. Their factual ﬁndings clearly point to the acceptance of a core deﬁnition of ‘a war of aggression’ as a war with the object of the occupation or conquest of the territory of another state, or part thereof. This deﬁnition is consistent with the limited articulation made by the IMTFE in relation to wars ‘prompted by the desire to seize the possessions’ of other states. More importantly for current purposes, it is similar, although not identical, to the object or result threshold lever proposed by Germany in 1999, a fact that will be discussed in further detail below. The ﬁndings made in relation to Germany and Japan’s actions against the US, however, indicate that this deﬁnition is insuﬃcient to cover each of the wars of aggression identiﬁed by the Tribunals. This leads to the conclusion that two supplementary deﬁnitions of ‘a war of aggression’ were sanctioned. The ﬁrst is a war declared in support of a third party’s war of aggression. The second is a war with the object of disabling another state’s capacity to provide assistance to a third state (or states) victim to a war of aggression initiated by the aggressor. In addition, it is implicit from the Tribunal Judgments that a war waged in self-defence, or in defence of another state the victim of a war of aggression, is not itself a war of aggression. Each of these deﬁnitions is explored further below.

96 97

Trial of the Major War Criminals, above n 32, Vol 2, 2nd day, 148. Shawcross also made reference to the 1933 deﬁnition: Vol 3, 12th day, 107. Cited in Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial (1971) 57-8.

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C War with the Object of the Occupation or Conquest of the Territory of Another State or Part Thereof Germany and Japan’s naked expansionist aims were the clear focus of the factual ﬁndings made by the Nuremberg and Tokyo Tribunals in relation to the state act element of crimes against peace. Thus the IMT held that the ‘aggressive designs of the Nazi Government were not accidents arising out of the immediate political situation in Europe’; they were instead, ‘a deliberate and essential part of Nazi foreign policy’. The IMT identiﬁed the three main aims of the National Sozialistische Deutsche Arbeiter Partei (NSDAP) as (1) the setting aside of the Treaty of Versailles; (2) the uniﬁcation of all German people; and (3) the acquirement of more land to feed German people. In this context, the Tribunal referred to statements made by Hitler on 5 November 1937 that ‘the German question can be solved only by way of force’ and that ‘if the Fuehrer is still living then it will be his irrevocable decision to solve the German space problem not later than 1943 to 1945’. In addition to these broad statements of principle, the Tribunal referred to speciﬁc statements made by the Nazi regime in relation to the territories it targeted. Thus in relation to Poland the Tribunal relied on evidence of a directive issued by Hitler to the Armed Forces on 11 April 1939 stating that ‘[t]he Free State of Danzig will be incorporated into Germany at the outbreak of the conﬂict at the latest’, as well as a meeting held on 23 May 1939 in which Hitler announced that Germany’s quarrel with Poland was not related to Danzig, but to Germany’s need to enlarge her living space and secure her food supplies. In addition, reference was made to a speech delivered by Hitler on 22 August 1939, in which he stated that ‘the destruction of Poland shall be the primary objective’. In relation to Denmark and Norway, the Tribunal relied on the fact that plans for the occupation of Norway had been developed by the Foreign Aﬀairs Bureau of the NSDAP and the fact that on 1 March 1940 Hitler announced: ‘[t]he development of the situation in Scandinavia requires the making of all preparations for the occupation of Denmark and Norway by a part of the German Armed Forces.’ In respect of Germany’s war against the Low Countries, the Tribunal relied on a directive given by Hitler to his military commanders in May

98 99 100 101 102 103 104

Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 427. Ibid Vol 1, Judgment, 415. Ibid Vol 1, Judgment, 431-2. Ibid Vol 1, Judgment, 441. Ibid Vol 1, Judgment, 442. Ibid Vol 1, Judgment, 443. Ibid Vol 1, Judgment, 448.

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1939 that ‘Dutch and Belgian air bases must be occupied …’ and a statement made by Hitler on 23 November 1939 that: …if England and France push through Belgium and Holland into the Ruhr, we shall be in the greatest danger … we must anticipate them … Breach of the neutrality of Belgium and Holland is meaningless.

In relation to Greece and Yugoslavia, the Tribunal noted a directive issued on 12 November 1940 stating that: ‘[t]he Commander-in-Chief of the Army will make preparations for occupying the Greek mainland north of the Agean Sea, in case of need entering through Bulgaria’ and a second directive dated 13 December 1940 in which Hitler stated that: my plan … is … to send a task force for the occupation of the Agean north coast by way of Bulgaria and if necessary to occupy the entire Greek mainland.

The Tribunal further noted that before war against Greece had even commenced, Hitler had declared that the complete occupation of the state by Germany ‘was a prerequisite to any settlement’ and the fact he had stated that he was determined to ‘destroy Yugoslavia militarily and as a national unit’ regardless of the post-coup government’s attitude towards Germany. Finally, in relation to the USSR, the following were all pivotal to the Tribunal’s ultimate conclusion that the war launched by Germany against the USSR was ‘plain aggression’. The Oﬃce of War Economy surveys of the possibilities the Soviet Union oﬀered for economic exploitation; memoranda that outlined ‘the destruction of the Soviet Union as an independent state, and its partition, the creation of so-called Reich Commissariats and the conversion of Estonia, Latvia, Byelorussia and other territories into German colonies’; a OKW (Oberkommando der Wehrmacht) memorandum stating that the immediate purpose of the war was to feed German armies from Soviet territory in the third

105 106 107 108 109 110 111 112 113

Ibid Vol 1, Judgment, 450-1. Ibid Vol 1, Judgment, 451. Ibid Vol 1, Judgment, 453. Ibid. Ibid Vol 1, Judgment, 454. Ibid. Ibid Vol 1, Judgment, 457. Ibid Vol 1, Judgment, 455. Ibid.

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year of the war; and statements made by Hitler on 16 July 1941 that the Baltic, Crimea, Volga, Baku and Kola regions must become part of the Reich. The majority of the IMTFE placed equal emphasis on statements of purpose and intent made by Japan’s political and military leaders, which, though often expressed in ‘vague and grandiose terms’, adequately conveyed the expansionist aims behind Japan’s wars. The Tribunal, for example, outlined the ascendant military’s reliance on the ancient concepts of ‘Hakko Ichiu’ (the bringing together of the corners of the world under one roof ) and ‘Kodo’ (the way of the Emperor) as a justiﬁcation for territorial expansion, to the point where Hakko Ichiu and Kodo ‘became symbols for world domination through military force’. According to the majority, by 1936 the Army’s scheme for a ‘new order’ in East Asia had become the settled policy of the Japanese Government. The fundamental aim of this ‘new order’ was simply that ‘Japan would at all costs expand upon the Asiatic continent’. The Tribunal found that Japan’s leaders publicly spoke about ‘economic co-operation’ with the ﬁrst target of its ‘new order’ ambitions, China. It acknowledged that in mid 1932, Manchuria, the ﬁrst area of China to be overawed by Japanese forces, was recognised by the Government of Japan as an independent state. The Tribunal nonetheless described Japan’s actions against Manchuria as a ‘conquest’ and ‘occupation’, holding that: The presence of Japanese troops to enforce their authority, the control of the railways by the South Manchurian Railway, the presence of Japanese consuls in all of the important urban centers, and the coordinating eﬀect of the Japanese controlled Self-Government Guiding Board, aﬀorded [… Japan’s leaders] a means of exercising an irresistible pressure to bring about this so-called independence and later to control the new puppet state. The independence movement and the Chinese collaborators were sustained by Japanese military might alone.

The Tribunal found that Japan further wished to separate the ﬁve northern provinces of China from allegiance to the National Government of China and to 114 115 116 117 118 119 120 121 122 123

Ibid Vol 1, Judgment, 456. Ibid. Tokyo Major War Crimes Trial, above n 33, Vol 101, Judgment, 48 797. Ibid Vol 101, Judgment, 48 514-15. Ibid Vol 101, Judgment, 48 523, 48 800. Ibid Vol 101-2, Judgment, 48 631, 49 190. Ibid Vol 101, Judgment, 48 767-8. Ibid Vol 102, Judgment, 49 122. Ibid Vol 102, Judgment, 49 146, 49 165. Ibid Vol 102, Judgment, 49 084. As to Japan’s control over Manchuria and northern China, see Vols 101-2, Judgment, further 48 768, 48 809, 48 812, 49 122, 49 130-1.

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establish ‘an autonomous regime or regimes there, which would be subservient to Japan’. ‘The Plan’ said the Tribunal: contained the two essential elements which had been present in the Japanese conquest of Manchuria and Jehol, namely (1) military domination by Japan, and (2) a declaration of independence by such few Chinese ﬁgures as could be induced to serve Japan’s purpose.

Further reliance was placed on the fact that in March 1939 Japan proclaimed the annexation of the Spratley Islands, and on Japanese admissions that she proposed to extend her dominion until it embraced the whole of China. The majority further found that after the outbreak of the European war, Japanese leaders ‘no longer spoke merely of the establishment of a “new order in East Asia”, but rather started speaking of the “Greater East Asia Co-Prosperity Sphere”’, ‘a euphemism for Japanese hegemony over East Asia’, which would be created by the Japanese seizure of all British, French, Dutch and Portuguese possessions in the areas of East and Southeast Asia, and the Paciﬁc Ocean. In the Tribunal’s words: On 16 July 1940, Army, Navy and Foreign Ministry representatives agreed that the ultimate goal of Japanese expansion should include all the territory lying between Eastern India and Burma on the one hand and Australia and New Zealand on the other. As a more immediate objective Japan would aim at the domination of an area which included Hong Kong, French Indo-China, Thailand, Malays, the Netherlands East Indies, the Philippines and New Guinea.

As a result of evidence such as the ‘Plan for Management of Territories in the Greater East Asia Co-Prosperity Sphere’ the Tribunal was also convinced that Japan intended to occupy the far eastern territories of the USSR. It is thus submitted that one deﬁnition of ‘a war of aggression’ that emerges as having been impliedly accepted on the basis of these key factual ﬁndings is that of a war with the object of the occupation or conquest of the territory of another state or part thereof. 124 125 126 127 128 129 130 131

Ibid Vol 102, Judgment, 49 182. Ibid Vol 102, Judgment, 49 182-3. Ibid Vol 101, Judgment, 48 826. Ibid Vol 101, Judgment, 48 766. Ibid Vol 102, Judgment, 49 357. Ibid Vols 102-3, Judgment, 48 972, 49 411, 49 584, 49 590, 49 763. Ibid. See further Vol 103, Judgment, 49 548. Ibid Vol 102, Judgment, 49 327, 49 358, 49 371.

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The uncertainty of the term ‘war’has already been discussed, and, unfortunately, on the basis of the Tribunal’s jurisprudence it is not possible to ascribe any more certainty to this word or to substitute an alternative term. The meaning of the remainder of the proposed deﬁnition, on the other hand, may be clariﬁed. The accepted deﬁnition, of the term ‘occupation’ at the time of the Trials was found in art 42 of the Regulations annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land. It provided that: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the Territory where such authority has been established and can be exercised.

Mallison and Jabri explain that: In the traditional usage of the technical terminology … ‘belligerent occupation’ is usually associated with an ongoing process of coercion which has not been ﬁnally resolved … while the concept of ‘military occupation’ has been used traditionally to refer to an occupation conducted during the termination stages of a process of coercion.

Hitler in particular spoke of the aim of ‘occupation’. He did not indicate whether the occupation he had in mind was of a temporary, functional nature, perhaps best described as a ‘belligerent occupation’, or whether the more deﬁnite level of control associated with a ‘military occupation’ was in fact aspired to. As events transpired, Germany and Japan were clearly engaged in numerous belligerent occupations. Further, it appears to have been accepted that an occupation may be said to exist despite the installation of a puppet government, meaning that Japan’s actions against Manchuria and other parts of northern China can also be described as an occupation, although perhaps more accurately as a ‘military occupation’. For these reasons, the term ‘occupation’ without any qualiﬁcation is preferred for the purposes of the proposed deﬁnition.

132 Opened for signature 18 October 1907, UKTS 9 (1910) (entered into force 26 January 1910). 133 W.T. Mallison and R.A. Jabri,‘The Juridical Characteristics of Belligerent Occupations and Resort to Resistance by the Civilians Population: Doctrinal Development and Continuity’ (1973-74) 42 George Washington Law Review 185, 187-8. The cited examples of military occupation were of the Allied occupations in Europe and the United States occupation of Japan following World War Two. 134 US Department of the Army, FM 27-10, The Law of Land Warfare para 366, UK War Oﬃce, The Law of War on Land, para 518 note 2; Davis P. Goodman, ‘The Need for Fundamental Change in the Law of Belligerent Occupation’ (1984-85) 37 Stanford Law Review 1573, 1581.

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The deﬁnition of conquest was not settled in 1945, but clearly implied military subjugation coupled with an intention to transfer sovereignty. Before the Nuremberg and Tokyo Trials, Oppenheim deﬁned conquest as ‘the taking possession of enemy territory through military force in time of war’. Oppenheim further stated that conquest ‘is only a mode of acquisition if the conqueror, after having ﬁrmly established the conquest, formally annexes the territory’. A similar deﬁnition was proﬀered by Brierly, who stated that ‘conquest is the acquisition of territory of an enemy by its complete and ﬁnal subjugation and a declaration of the conquering State’s intention to annex it’. Fenwick, on the other hand, opined that the post-conquest transfer of sovereignty could be eﬀected by a ‘treaty of peace or other formal document’, while Lawrence would have recognised a transfer eﬀected by a ‘long and uninterrupted performance of functions of a ruler, its intention of adding that territory to its dominions’. Thus the term conquest is preferred for the proposed deﬁnition over terms such an annexation, given that neither Germany nor Japan clearly articulated the means by which they intended to acquire sovereignty over the territories they targeted, or indeed whether or not they believed such legal niceties were necessary. Finally, it is important to note that neither the IMT nor IMTFE considered Germany or Japan’s actions after the point at which those states invaded, attacked or declared war against an enemy state, with the exception of Japan’s sustained war against China, which was primarily considered in the context of its waves of initiation. This would appear to indicate that the aggressive or defensive character of what develops into a war is determined by the demonstrated intent and stated purpose of a perpetrator up until the point of the initiation of hostilities. This was certainly the stated position of US Military Tribunal V in the High Command Case. The Tribunal held that: Whether a war be lawful, or aggressive and therefore unlawful under international law, is and can be determined only from a consideration of the factors than entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness.

135 L. Oppenheim, International Law (3rd ed, 1920) 236 cited in Matthew M. McMahon, Conquest and Modern International Law: The Legal Limitations on the Acquisition of Territory by Conquest (1940) 10. 136 J.L. Brierly, The Law of Nations (2nd ed, 1936) 124, cited in McMahon, above n 135, 11. 137 Charles G. Fenwick, International Law (2nd ed, 1934), cited in McMahon, above n 135, 11-2. 138 T.J. Lawrence, The Principles of International Law (7th ed, 1923) 159, cited in McMahon, above n 135, 12. 139 High Command Case, above n 30, Vol XI, Judgment, 486.

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For this reason, unlike the 1999 German proposal, no mention has been made in the proposed deﬁnition of the result of the wars waged, rather the deﬁnition has been restricted by a reference only to the object of the perpetrator’s acts. D War Declared in Support of a Third Party’s War of Aggression While the core deﬁnition of a war of aggression outlined above applies to the large majority of the wars of aggression identiﬁed by the Tribunals, it is insuﬃcient to capture each war of aggression that was identiﬁed. The factual ﬁndings made by the IMT fail to establish a crystallised German desire to either occupy or conquer the United States. The Tribunal merely notes that the possibility of a direct attack on the US was considered and discussed in 1940 by Hitler as a matter for the future. Germany did, however, encourage Japan to attack the US in late 1941, promising to join the attack if she did, and honoured that promise in declaring war on the US four days after Japan attacked it. In the Tribunal’s words: And when Japan attacked the United States ﬂeet in Pearl Harbour and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.

This conclusion lacks a deﬁnitive statement that Germany’s actions against the United States actually constituted a war of aggression. Nonetheless, the Tribunal ultimately concluded that ‘certain of the Defendants planned and waged aggressive wars against twelve nations’. The 12 nations listed in the Indictment as having been the victim of Germany’s wars of aggression were Poland, the UK, France, Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, the USSR and the US. Moreover, a conclusion that Germany’s actions against the US did not constitute a war of aggression would have been incredibly controversial. It is this type of conclusion that would have required an explicit articulation – not that the actions did constitute a war of aggression, which, in 140 Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 457. 141 Ibid. 142 Ibid Vol 1, Judgment, 458. It should be noted that the IMT failed to cite any evidence in support of its conclusion that Japan’s war against the US was aggressive. 143 See further Brownlie, above n 47, 148. 144 Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 459 (emphasis added). It is nevertheless acknowledged that towards the end of its judgment the Tribunal commented that ‘according to the Indictment, aggressive action was planned and carried out against Austria and Czechoslovakia in 1936-38, followed by the planning and waging of war against Poland; and, successively, against ten other countries’: at Vol 1, Judgment, 467. Numeracy may not have been the Tribunal’s strong point.

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the context of the time, was almost a foregone conclusion. As such, it is submitted that the IMT accepted that a war declared in support of a third party’s war of aggression also fell within the deﬁnition of ‘a war of aggression’. E War Initiated with the Object of Disabling Another State’s Capacity to Provide Assistance to a Third State (or States) Victim to a War of Aggression Initiated by the Aggressor The IMTFE concluded that at the time of World War Two sovereignty over the Philippines was vested in the United States, meaning that the war of aggression waged by Japan against the people of the Philippines was ‘part of the war of aggression waged against the USA’. A considerably larger portion of the majority’s Judgment, however, was spent discussing Japan’s surprise attack on the US Paciﬁc Fleet anchored in Pearl Harbour. Again, the factual ﬁndings of the IMTFE do not disclose an intent on the part of Japan to either occupy or conquer any part of the US. According to the Tribunal, the motive for the attack was to destroy the US Paciﬁc Fleet so that Japan could seize its targets in the Paciﬁc and Indian Oceans before the US would be able to prepare and launch a counter-attack. It was further hoped, the Tribunal found, that the US would weary of a prolonged and costly war and would ultimately negotiate a peace that would recognise Japan’s supremacy in the territories it had seized. Given the prominence aﬀorded to the Pearl Harbour attack in the IMTFE’s Judgment, it is implausible that it was discounted as evidence of a war of aggression and that the majority’s conclusion that Japan had waged a war of aggression against the US was based solely upon the attack on the Philippines. Moreover, the Tribunal’s pronouncement relating to the Philippines made reference to that war being ‘part of ’ the war of aggression waged against the US. As such, it is submitted that the Tribunal’s conclusions in relation to the US engenders a third deﬁnition of ‘a war of aggression’, namely a war with the object of disabling another state’s capacity to provide assistance to a third state (or states) victim to a war of aggression initiated by the aggressor. F A War Waged in Individual or Collective Self-Defence Is Not a War of Aggression The ﬁnal deﬁnition to emerge from the Tribunal Judgments is a negative one, or in other words, one example of what a war of aggression is not. The Tribunal in the High Command Case held that ‘an unlawful war of aggression connotes of necessity a lawful war of defense against aggression’. Although the issue was 145 Tokyo Major War Crimes Trial, above n 33, Vol 103, Judgment, 49 591. 146 Ibid Vol 102, Judgment, 49 470-7. 147 High Command Case, above n 30, Vol XI, Judgment, 487-8.

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not speciﬁcally addressed by the IMT or IMTFE, it can be inferred from their Judgments that a war waged in individual or collective self-defence is not itself a war of aggression. The IMT engaged in a discussion of the right of a state to use force in selfdefence in the context of the defendants’ submission that Germany’s occupation of Norway was an act of self-defence, undertaken for the purpose of forestalling an imminent Allied landing there, which, it was claimed, would have enabled a subsequent attack on Germany. Similarly, the IMTFE considered self-defence arguments made by the defendants in relation to the Mukden and Lukouchiao incidents; the declaration of war made on Japan by the Netherlands before the latter was actually attacked, or before Japan declared war on it; and the economic measures imposed on Japan by the Western powers. While the Tribunals found that none of these acts gave rise to a right of self-defence, the consideration given to the submissions indicates that the state act element of crimes against peace would not have been satisﬁed if self-defence had been established. The Tribunals’ position in relation to collective self-defence was less clearly articulated. Although Germany’s strategy in invading other countries to strengthen its strategic position against Britain and France was referred to frequently by the IMT, the Tribunal did not explicitly discuss whether Germany waged a war of aggression against these states, or conversely, whether Britain and France were waging wars of self-defence against Germany. Nonetheless, it is implicit in the Judgment that the wars declared on Germany by Britain and France were wars of collective self-defence and therefore, not wars of aggression. US Military Tribunal IV subsequently made this conclusion explicit in the Ministries Case when it stated that: No one would question the right of any signatory [of the Kellogg-Briand Pact] to use its armed forces to halt the violator in his tracks and to rescue the country attacked.

This is consistent with the conclusion that the purpose of a war can be used to determine its character. It should be noted, however, that there is no evidence to suggest that the reverse (a war of aggression is a war not waged in individual or collective self-defence) was endorsed by the Tribunals; this could, moreover, be inconsistent with the Tribunals’ narrow deﬁnition of wars of aggression in certain situations. For example, a religious war waged for the purpose of converting the inhabitants of another state, or a war waged for the purpose of changing a politi148 149 150 151 152

Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 448-50. Tokyo Major War Crimes Trial, above n 33, Vol 102, Judgment, 49 495, 49 048-53. Ibid Vol 103, Judgment, 49 584-5. Ibid Vol 103, Judgment, 49 581-2a. Ministries Case, above n 29, Vol XIV, Judgment, 321.

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cal regime without occupation or conquest, would not be a war of individual or collective self-defence, but it would fall outside of the narrow deﬁnition of a war of aggression that emerges from the Tribunal Judgments. V What Is a War in Violation of International Treaties, Agreements and Assurances? The second branch of the state act element of the deﬁnition of crimes against peace provided for in the Tribunal’s constitutive instruments, namely wars in violation of international treaties, agreements and assurances, was treated as superﬂuous by the Nuremberg and Tokyo Tribunals. The IMT stated that as it had found certain defendants individually criminally responsible for Germany’s wars of aggression it was unnecessary ‘to consider at any length the extent to which these aggressive wars were also “wars in violation of international treaties, agreements or assurances”’. The only ﬁnding it made in this context related to the Kellogg-Briand Pact, which it said had been violated by Germany ‘in all the cases of aggressive war charged in the Indictment’. The majority of the IMTFE similarly held that it was unnecessary to consider whether any treaties, agreements or assurances had been violated given that the waging of wars of aggression had been proved. One conclusion that can thus be drawn from these statements is that a war can be aggressive whether or not it is also in violation of conventional law. It might also be noted that while the Tribunals did not deem it necessary to consider this limb of the deﬁnition, they did not question its legitimacy as an alternative deﬁnition of crimes against peace – a fact that is important in the context of an investigation into the current customary deﬁnition of the crime of aggression. VI

Invasions and the Status of Other Acts of Aggression

One of the most interesting aspects of the post-war jurisprudence was the Tribunals’ treatment of acts of aggression that did not amount to ‘war’. It is in this aspect of the Judgments that the possibility of a broader deﬁnition of crimes against peace begins to emerge. Germany’s actions against Austria and Czechoslovakia were variously described by the IMT as invasions, occupations, annexations, seizures and aggressive action. Ultimately, the Tribunal declared them to be ‘acts of aggression’, 153 154 155 156

Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 459. Ibid Vol 1, Judgment, 461. Tokyo Major War Crimes Trial, above n 33, Vol 103, Judgment, 49 772. Manuel R. Garcia-Mora, ‘Crimes against Peace in International Law: From Nürnberg to the Present’ (1964-65) 53 Kentucky Law Journal 35, 39.

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thereby distinguishing the conduct from ‘wars of aggression’. In the Tribunal’s own words: The ﬁrst acts of aggression referred to in the Indictment are the seizure of Austria and Czechoslovakia and the ﬁrst war of aggression charged in the Indictment is the war against Poland begun on the 1st September, 1939.

Despite this seemingly clear statement there has subsequently been some academic confusion as to whether or not the ‘acts of aggression’ carried out by Germany against Austria and Czechoslovakia were in fact deemed to fall within the deﬁnition of crimes against peace by the Tribunal. This appears to have arisen primarily as a result of the Tribunal’s ultimate ﬁnding that aggressive wars had been waged against 12 nations, as outlined above. As already mentioned, the Tribunal did not directly consider Germany’s acts vis-à-vis the UK or France, despite the fact that the Tribunal found that many of the other wars of aggression initiated by Germany were aimed at strengthening her position against those two countries. As a result, some commentators have assumed or queried whether Germany’s actions against Austria and Czechoslovakia, although distinguished from wars of aggression in one part of the Judgment, were included in the Tribunal’s ﬁnal tally. This seems incongruous. It should be remembered that not only the Indictment, but the entire Prosecution case presented Germany’s actions in relation to Austria and Czechoslovakia as relevant only to the common plan or conspiracy under Count One and as a strategic element of the planning of the subsequent wars of aggression. As such, it seems clear that the Tribunal was consistent in distinguishing between wars and acts of aggression. The IMT gave some indication as to how an act of aggression was to be identiﬁed in the context of its discussion of the Defence’s submission that the annexation of Austria was justiﬁed by: the desire of some Austrian citizens for the union of Austria and Germany; the common matters between the two peoples that made the union desirable; and the fact that uniﬁcation was achieved without bloodshed. The Tribunal dismissed the defendants’ claims as immaterial. The Tribunal reached this conclusion, it said, because the facts plainly proved that ‘the methods employed to achieve the object were those of an aggressor’. The ‘ultimate factor’ leading the IMT to this conclusion was ‘the armed might of Germany ready to be used if any resistance was encountered’. Moreover, the Tribunal concluded, none of the purposes outlined by the defendants were evidenced in documents; rather, emphasis was ‘laid on the advantage to be gained 157 Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 427. 158 Lippman, above n 31, 31; Henry T. King, Jr, ‘The Legacy of Nuremberg’ (2002) 34 Case Western Reserve Journal of International Law 335, page unknown. 159 C.A. Pompe, Aggressive War: An International Crime (1953) 22. 160 Trial of the Major War Criminals, above n 32, Vol 1, Judgment, 453-6.

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by Germany in her military strength by the annexation of Austria’. Thus, the aggressive character of an act, just like the aggressive character of a war, is to be determined by the overriding object of the act – namely, occupation, conquest or in this case possibly annexation. While the Tribunal clearly adopted a censorious attitude towards invasions, it failed to rule on the legal status of such acts, seemingly as a result of the simple fact that the Indictment did not charge the annexation of Austria or Czechoslovakia as crimes against peace. On the other hand, the Tribunal declared that the German occupation of Denmark (which met with only scattered resistance, and proceeded peacefully until 1943, but which was charged as a war of aggression in the Indictment) constituted a war of aggression, without explaining how the Danish situation diﬀered from that confronted by Austria and Czechoslovakia such that it could be considered to constitute a war as opposed to an act of aggression. The question of the legal status of invasions was therefore left somewhat unsettled by the IMT. The question of the status of invasions was readdressed in the Ministries Case, in which US Military Tribunal IV held that the invasions of Austria and Czechoslovakia fell within the deﬁnition of crimes against peace. The Tribunal did not determine that invasions are in and of themselves capable of giving rise to individual criminal responsibility, rather it declared that ‘[a]n invasion of this character is clearly such an act of war as is tantamount to, and may be treated as, a declaration of war.’ The Tribunal went on to state that an invasion that achieves conquest and plunder without resistance should not be given more favourable consideration than an invasion that meets with military resistance. In the Tribunal’s words, [t]he fact that the aggressor was here able to so overawe the invaded countries, does not detract in the slightest from the enormity of the aggression, in reality perpetrated.

Helpfully the Tribunal also provided a deﬁnition of the term ‘invasion’. It held that the term implies the use of force and was used in Control Council Law No 10 in its ‘usually accepted sense’, found in Webster’s Unabridged Dictionary:

161 Ibid. 162 Ministries Case, above n 29, Vol XIV, Judgment, 331. 163 Ibid Vol XIV, Judgment, 331. See further Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No 10 (15 August 1949) 223.

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The conclusion of the majority, however, was not without controversy. Judge Powers delivered a strong dissenting opinion in the Ministries Case. His Honour held that an act of invasion without war does not constitute a crime against peace. He reasoned that Control Council Law No 10 was intended to give eﬀect to the London Agreement, which did not include invasions, and relied on the fact that the IMT held the invasions of Austria and Czechoslovakia were aggressive acts not aggressive wars. Only aggressive wars, according to His Honour, were outlawed under the Kellogg-Briand Pact prior to the adoption of the London Agreement. Judge Powers held that by referring to both wars and invasions Control Council Law No 10 recognised that they are diﬀerent things, meaning it could not be said that war includes invasions. He also held that the grammatical construction of the provision only criminalises the invasion of other countries when the invasion is undertaken in conjunction with a war of aggression. In this respect, Judge Powers was concerned that the recognition of an invasion alone as satisfying the state act element of crimes against peace would lead to the ‘ridiculous proposition that any invasions, regardless of purpose, intention and eﬀect would be a crime, whereas war would only be criminal if aggressive’. Leaving aside the moot question of whether invasions were crimes under international law before World War Two, it is clearly correct to say that invasions were not explicitly referred to in the IMT Charter and were distinguished from wars of aggression under the IMT’s Judgment. Wars and invasions, while they may overlap, are also clearly diﬀerent concepts. Less convincing is Judge Powers’ grammatical construction. Giving due consideration to the use of the word ‘and’, it appears that the intent behind the provision was precisely to capture the 164 Ministries Case, above n 29, Vol XIV, Judgment, 330-1. The Tribunal in the High Command Case added little to this deﬁnition in stating that ‘an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat.’ High Command Case, above n 30, Vol XI, Judgment, 485. 165 Ministries Case, above n 29, Vol XIV, Judgment, 871-942. 166 Ibid Vol XIV, Judgment, 882. 167 Ibid Vol XIV, Judgment, 880. 168 Ibid. 169 Ibid Vol XIV, Judgment, 880-1. 170 Ibid Vol XIV, Judgment, 880. 171 Ibid Vol XIV, Judgment, 881. 172 Ibid Vol XIV, Judgment, 882.

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aggressive invasions of Austria and Czechoslovakia. If not capable of constituting the state act element of crimes against peace, the phrase ‘initiation of invasions of other countries’ would be superﬂuous. Also of signiﬁcance is the fact that the list of constitutive acts under art II(1)(a) is explicitly stated to be non-exhaustive. While Judge Powers is correct in holding that Control Council Law No 10 does not qualify its use of the term invasions with the term aggressive, it should be noted that the deﬁnition of invasion adopted may be said to inherently contain this qualiﬁcation. Thus the conclusion, if not the reasoning, of the majority is to be preferred. Unfortunately, the Judgment of the IMTFE sheds little further light on the issue. The Tribunal found that, faced with the threat of actual invasion, the Governor-General of French Indo-China had been forced to accept Japanese demands, signing an agreement in September 1940 for the military occupation of the Tonkin Province, the establishment of Japanese air bases and the granting of military facilities. It further found that in July 1941 Vichy France had acquiesced under the threat of force to Japan’s demand to occupy southern French IndoChina and construct military bases there. This led the Tribunal to conclude that ‘the leaders of Japan in the years 1940 and 1941 planned to wage wars of aggression against France in French Indo-China.’ The Tribunal, however, did not develop this aspect of its Judgment any further, as it was able to go on to conclude that a war of aggression had been actually waged against France after the Japanese occupation of French Indo-China turned hostile in 1945. In summary, there is signiﬁcant support for the position that invasions, at least those resulting in conquest or occupation, fall within the customary deﬁnition of crimes against peace. Given the limited wording of the constitutive instruments of the Tribunals, it is diﬃcult to take this further and argue that ‘acts of aggression’ falling short of war other than such invasions fell within the Nuremberg and Tokyo deﬁnition of the crime. What the Tribunals may have done, however, is open the door to the development of the law in this direction. VII

Conclusion

Upon its inception, the UN took great interest in the formative development of international criminal law. Wishing to build upon the precedent set in Nuremberg and Tokyo, in 1947 it mandated the International Law Commission (ILC) to develop a code of oﬀences attracting individual criminal responsibility 173 174 175 176 177

Tokyo Major War Crimes Trial, above n 33, Vol 102, Judgment, 49 450-1. Ibid Vol 103, Judgment, 49 503-4, 49 507. Ibid Vol 103, Judgment, 49 582a (emphasis added). Ibid Vol 103, Judgment, 49 583-4. See, eg, Aﬃrmation of Principle of International Law recognized by the Charter of the Nürnberg Tribunal, GA Res 95 (I), UN Doc A/RES/95 (I), 11 December 1946.

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under international law, with a view to eventually establishing an international criminal court. The ILC agreed upon its ﬁrst Draft Code of Oﬀences against the Peace and Security of Mankind in 1951. In that ﬁrst Draft a radical rethinking had already been applied to the Nuremberg/Tokyo model of the crime. Abandoning the moniker ‘crimes against peace’, art 2 of the Draft Code instead referred to ‘aggression’. This was more than a mere change in name. Article 2 made no mention of wars of aggression, or wars in violation of international treaties, agreements or assurances, or the initiation of invasions of other countries. Rather, art 2 reﬂected new understandings of the law governing the use of inter-state force provided for by the UN Charter, particularly the prohibition of such force under art 2(4). Thus art 2 of the ILC’s Draft Code relevantly listed as proposed crimes: (1) acts of aggression, ‘including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations’; (2) threats to resort to an act of aggression; (3) preparation for the employment of armed force against another state except in self-defence or as mandated by the UN; (4) incursion into the territory of a state by armed bands acting for a political purpose; (5) fomenting civil strife in another state; (6) the undertaking or encouragement of terrorist activities; (7) violations of treaty obligations concerning limitations on armaments and like restrictions; and (8) the annexation of the territory of another state by acts contrary to international law. What is notable for present purposes is that the 1951 Draft Code (which was the ﬁrst in a series of draft deﬁnitions of the crime of aggression that have expanded and shrunk in their scope over time) signalled the end of the currency of the term ‘war of aggression’. For while the term ‘war of aggression’ does appear in General Assembly Resolution 3314 of 14 December 1974 (in art 5(2) as outlined above) and in a handful of additional documents, such as the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter, there have been no post178 Formulation of the Principles Recognised in the Charter of Nürnberg Tribunal and in the Judgment of the Tribunal, GA Res 177(II), UN Doc A/RES/177 (II), 21 November 1947. 179 Study by the International Law Commission of the Question of an International Criminal Jurisdiction, GA Res 260B (III), UN Doc A/RES/260B (III), 9 December 1948; Report of the International Law Commission to the General Assembly Covering its Second Session, 5 June – 29 July 1950, in Yearbook of the International Law Commission (1950) Vol II, 379; International Criminal Jurisdiction, GA Res 489 (V), UN Doc A/ RES/489 (V), 12 December 1950. 180 Report of the International Law Commission to the General Assembly covering its Third Session, 16 May – 27 July, in Yearbook of the International Law Commission (1951) Vol II, 135-7. 181 GA Res 2625 (XXV), UN Doc A/RES/2625 (XXV), 24 October 1970.

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Nuremberg/Tokyo developments that have added to the meaning of the term ‘a war of aggression’ under customary international law. This is at least in part attributable to a change in language: since the adoption of the 1949 Geneva Conventions, rather than war, ‘international armed conﬂicts’ have become the context within which the jus in bello is set; and in an international peace and security context, the term ‘aggression’ simpliciter, and a swathe of linked terms such as ‘use of force’, ‘armed force’ and ‘armed attack’ have become the language of choice. One conclusion that can be drawn from the foregoing is that, were the Assembly of States Parties to utilise the term ‘a war of aggression’ in the deﬁnition of the state act element of the crime of aggression, the ICC would readily be able to ascribe a meaning to this term through a close analysis of Nuremberg and Tokyo case law – albeit a meaning that may not coincide with the popular interpretation of the term. The further point that should be made is that if either a reference to ‘wars of aggression’ or to ‘acts with the object or result of occupation or annexation’ are utilised as threshold levers, the international community should be aware that the crime they are adopting will be narrower than the historical precedent on which the crime is based. A reference to ‘wars of aggression’ would exclude the criminalisation of invasions resulting in conquest or occupation. On the other hand, while the German deﬁnition, by referring to ‘an act’ with the object or result of occupation or annexation leaves room to include the types of invasions recognised in the Ministries Case as being capable of constituting crimes against peace, it excludes the alternative meanings ascribed to a war of aggression by the Nuremberg and Tokyo Tribunals outlined in this paper. Both proposals would exclude the alternative customary deﬁnition of the crime as ‘a war in violation of international treaties, agreements or assurances.’ This is signiﬁcant given that a use of force in violation of the UN Charter, a broad deﬁnition of the state act element of the crime supported by a number of states, arguably falls within this limb of the customary deﬁnition. This brings us back to the heart of the matter. As negotiations surrounding the crime of aggression heat up as the ﬁrst Review Conference of the Rome Statute looms in the near future the time is ripe for the members of the SWGCA to decide if there is anything in a name. We have had a change in terminology. Crimes against peace have been transformed into the crime of aggression. But do we mean what we say? Is the international community willing to embrace a crime linked to the deﬁnition of aggression for the purposes of international peace and security law – or is the crime’s label a misnomer?

Part Four Nuremberg and Transitional Justice Institution Building

Chapter 8 Evaluating Timor Leste’s Reception, Truth and Reconciliation Commission Annemarie Devereux and Lia Kent*

It is very important that we know the truth about the violations, because our history … must be written down and be told to the next generations. Female political prisoner, Dili

We feel happy to take part in the reconciliation process but we still feel heavy because we small people have confessed but the big people are still free. The state has to bring them back … they should be taken to the tribunal if we are going to be satisﬁed. Deponent, Ainaro

The Report makes recommendations that, in the eyes of pragmatic policies, would not be considered as being absurdly utopian, but they are realistically very ambitious … The grandiose idealism that they possess is well manifested to the point that it goes beyond conventional political boundaries. President Xanana Gusmao, 28 November 2005

* 1

2

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Both authors have written this article in their personal capacities. Piers Pigou, Crying without Tears: In Pursuit of Justice and Reconciliation in Timor Leste: Community Perspectives and Expectations, (2003) 26 International Center for Transitional Justice . Lia Kent, Unfulﬁlled Expectations, Community Views of the Community Reconciliation Process (2004) 16 Judicial Systems Monitoring Programme . His Excellency President Kay Rala Xanana Gusmao, ‘Speech on the Occasion of the Handing Over of the Final Report of the CAVR’ (National Parliament, East Timor, 28 November 2005).

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 171-203.

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Presenting these three quotes concerning Timor Leste’s Reception, Truth and Reconciliation Commission (CAVR) reﬂects the varied approaches to the process and outcomes of the CAVR and highlights some of the complexity of evaluating the recently dissolved Commission. As a body, it became the repository for a massive collection of personal statements and research materials concerning human rights violations which occurred during 1974–99. It recently produced a Report of over 2000 pages with its major ﬁndings and recommendations for the future. These ﬁndings and recommendations touch upon matters of international sensitivity such as Indonesia’s invasion of Timor Leste in 1975, the complicity or silence of other state actors including the United Nations, responsibility for violations surrounding the Popular Consultation of 1999, as well as delving into historic divisions within the civil war of 1975. At the same time, the Commission facilitated a process of locally-based community reconciliation for Timorese who had committed less serious oﬀences in the context of the political conﬂict and wished to be reintegrated into their community. The public face of the Commission was multi-faceted. National hearings were broadcast throughout the territory, private healing workshops were conducted for victims of human rights violations, community meetings took place at which agreements on acts of reconciliation were reached, and most recently, public debate occurred over the recommendations of the Commission for continuing action with respect to justice and accountability for those who perpetrated international crimes. At a stage in which the Report of the CAVR has only recently been disseminated to the people of Timor Leste and elsewhere, it is not possible to evaluate the long-term impact of the work of the Commission. However, some preliminary comments can be made about the operations of the CAVR from the evidence of the CAVR’s hearings and its Final Report. In essence, this chapter will be suggesting that the CAVR provided a signiﬁcant forum for uncovering or remembering many of the human rights atrocities which occurred during the 1974–99 period. Based largely on sources within Timor Leste, the Final Report provides a chilling account of the contours of the atrocities and opens the door for further debate as to how to prevent such atrocities in the future. The CAVR also appears to have been relatively successful in facilitating the re-integration of many Timorese persons who committed low-level oﬀences during the political 4

The Report was presented to the President of Timor Leste by the CAVR on 31 October 2005, and submitted to the National Parliament by the President on 28 November 2005. In January 2006, the President submitted a copy of the Report to the UN Secretary-General. Under the Regulation governing the CAVR, the Report was due to be made public at the same time as its oﬃcial handover. However, the public release of the Report was somewhat delayed (see below n 42 and accompanying text), with unoﬃcial copies disseminated on NGO websites. The Report can now be accessed on the website of the Post-CAVR Technical Secretariat: . The Report has now been disseminated to all districts in Timor Leste. In this chapter, the Report is referred to as the CAVR ‘Final Report’.

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conﬂict of 1999. At the same time, the CAVR operated within certain conﬁnes. It was not established to reconcile international actors. Tensions arising from the 1999 conﬂict between pro-Indonesian and pro-independence supporters were a particular priority for the CAVR’s reconciliation process, however earlier tensions within Timor (such as those arising from the civil war of 1974–75) were touched upon in the public hearings related to the ‘truth-seeking’ function. The CAVR was itself time and resource limited, with its Final Report detailing the need for further reconciliation initiatives. Given the continuing government–community schism on the ‘justice’ question (ie addressing violations of international criminal law during 1999 and the 24-year Indonesian occupation through prosecutions) and the complexities of UN Security Council deliberations, there is little immediate prospect that CAVR’s recommendations for ‘justice and accountability’ will be implemented. The Final Report is yet to be debated at length in Parliament, nor has it yet prompted a ‘whole-of-government’ implementation response, though the political and institutional crisis of 2006 has highlighted the urgency of much recommended institutional reform. Ultimately, the operations of the CAVR thus underline the need to consider the diﬀerent layers at which ‘truth and reconciliation’ operate. Rather than being suﬃcient unto itself, the CAVR is part of a long-term, continuing dialogue on ‘truth and reconciliation’, an endeavour which requires a holistic approach to issues of transitional justice. I Background to the Establishment of the CAVR As with all truth and reconciliation commissions, the CAVR was conceived of (and cannot be divorced from) its particular historical context. Established pursuant to a UN Regulation in the immediate aftermath of the tragic events of 1999, it fulﬁlled its functions in the ﬁrst years of the independence of Timor Leste. Though the events of 1999 provided the particular impetus, these events could not be seen in isolation, but rather were part of a longer narrative of conﬂict involving Timorese and international actors. From the 16th century on, Timor Leste (then known as Portuguese Timor) was a Portuguese colony, valued particularly for its resources of sandalwood and coﬀee. Although Portugal had resisted calls from the international community in the 1960s to decolonise its territories, a rapid change of heart followed the Carnation Revolution of 1974 and the depleting costs of colonial wars being fought in African territories. Political parties quickly formed within Timor in anticipation of this decolonisation, with the largest being the Uniao Democratica Timorense (UDT), and the Associacao Social Democratica Timorese (ASDT) out of which later emerged the Frente Revolcionaria de Timor Leste 5

Regulation 2000/10 on the Establishment of a Commission for Reception, Truth, and Reconciliation in East Timor, UNTAET/REG/2001/10, 13 July 2001 (‘UNTAET Regulation 2001/10’).

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Independente (Fretilin). A short-lived alliance between these two parties gave way in 1975 to a brief, but bitter civil war in the months of August – September. Portuguese authorities ﬂed to an island oﬀ the mainland during this period and never returned to administer the territory. Following several months of military incursions (with casualties including the killing of international journalists at Balibo, a town near the border of West and East Timor), Fretilin made a unilateral declaration of independence of the Democratic Republic of East Timor. Indonesia, claiming the support of UDT and smaller political parties (Apodeti, Kota and Trabhalista) against this ‘Marxist’ party, launched a massive air and sea invasion, known as Operasi Seroja (Operation Lotus) on 7 December 1975. A puppet Provisional Government was installed in early 1976, and in May 1976, a ‘People’s Assembly’ in Dili (whose members were selected by Indonesia) endorsed an ‘Act of Integration’. The actions of Indonesia were condemned by the UN Security Council and General Assembly, with calls for Indonesia to withdraw its military force and for the Security Council to ‘take urgent action to protect the territorial integrity of Portuguese Timor and the inalienable right of its people to selfdetermination’. Faced with continuing opposition from much of the Timorese population, the Indonesian authorities governed Timor Leste through use of considerable military power. Estimates of the number of deaths during the occupation varied widely, ranging from 100 000-200 000 (out of a total population of some 800 000). There were reports of torture and abuse, political trials and suppression, sexual violence and discrimination, amongst many other claims of human rights abuses. In August 1999, the Indonesian Government, under the leadership of President Habibie, agreed to hold a referendum on the future of Timor. According to an Agreement between the UN, Indonesia and Portugal, the ‘Popular Consultation’ would be administered by the UN, with security remaining the responsibility of Indonesia. When faced with the choice of becoming an autonomous province within Indonesia or becoming independent, 78.5 per cent of Timorese voted in favour of independence. Within days of the announcement, Timor was subjected to an intensiﬁed campaign of abuse at the hands of militia, who (according to subsequent inves-

6 7

8 9

See, eg, Jill Joliﬀe, Cover-Up: The Inside Story of the Balibo Five (2001). See GA Res 3485 (XXX), UN Doc A/RES/3485 (XXX), 12 December 1975; SC Res 384 (1975), UN Doc S/RES/384 (1975), 22 December 1975. By 1982, international calls became more muted. For a more detailed account of the history of these resolutions, see A. Devereux, ‘Accountability for Human Rights Abuses in East Timor’ in D. Kingsbury (ed), Guns and Ballot Boxes: East Timor’s Vote for Independence (2000). See, eg, the reports on Timor Leste produced by Amnesty International, available at . Question of East Timor: Report of the Secretary-General, UN Doc A/53/951, S/1999/513, 5 May 1999 (Annex 2 and Annex 3).

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tigations) were trained, ﬁnanced and directed by Indonesian authorities. Over 200 000 persons were forcibly displaced into West Timor, over 1000 persons were killed, and a scorched earth policy was instituted resulting in the loss of all signiﬁcant government, commercial, and basic infrastructure (such as electricity and communications lines), and the loss of 60-80 per cent of all property. The UN was forced to evacuate and moved its headquarters to Darwin, in the north of Australia. In the face of international outrage (including a threat of withdrawal of funding by the International Monetary Fund), Indonesia agreed to withdraw its troops and allow a multinational force into Timor to provide security. The UN authorised a multinational military force known as INTERFET to intervene and troops were deployed in Timor Leste on 20 September 1999. The administration of Timor Leste was taken over by the UN, through the United Nations Transitional Administration for East Timor (UNTAET), which continued in operation until the formal independence of Timor Leste on 20 May 2002. A

Momentum for the Establishment of the CAVR

Internationally and domestically, there were strong calls for action to be taken to make accountable those responsible for the atrocities of 1999. Reference was made to this imperative in the Security Council Resolution establishing UNTAET, and a UN Commission of Inquiry in late 1999 had recommended the establishment of an international tribunal should domestic processes not be suﬃcient. A ‘Serious Crimes Process’, consisting of a specialised investigation, prosecution and judicial process, was established in May 2000, but was slow in its inception

10

11

12

13 14 15

Abuses had been reported in the months preceding the Popular Consultation, in particular from May onwards: see Geoﬀrey Robinson, ‘East Timor 1999 Crimes against Humanity: A Report Commissioned by the United Nations Oﬃce of the High Commissioner for Human Rights (OHCHR)’, reproduced in CAVR Final Report, above n 4, Annex. United Nations Oﬃce of the High Commissioner for Human Rights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59, 31 January 2000, paras 93, 125, 129–39. See also CAVR Final Report, above n 4, Part 7.5, Violations of the Laws of War, 48. The International Force for East Timor (INTERFET) was a multinational force under the operational command of Australia and was authorised to intervene by SC Res 1264 (1999), UN Doc S/RES/1264 (1999), 15 September 1999. SC Res 1272 (1999), UN Doc S/RES/1272 (1999), 25 October 1999. Report of the International Commission of Inquiry on East Timor to the Secretary General, above n 11, para 153. See especially Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Oﬀences, UNTAET/REG/2000/15, 6 June 2000 (‘UNTAET Regulation 2000/15’); Regulation 2000/16 on the Organization of the Public Prosecution Service in East Timor, UNTAET/REG/2000/16, 6 June 2000.

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and had relatively little community outreach in its early stages, leading to signiﬁcant community concern that perpetrators would remain free. Institutionally, it was appreciated that the nascent legal system (involving largely inexperienced legal actors and limited infrastructure) would not be capable of dealing with all the events of 1999. At a policy level, a clear priority was to provide for the safe return of the 120 000 Timorese who remained displaced in West Timor in early 2000 and to avoid repetitions of the small number of cases of reprisal violence which had been reported. In order to build a strong foundation for the future, it was also regarded as necessary to address the pattern of violations which had occurred in Timor Leste, culminating in the events of 1999. The establishment of a ‘truth and reconciliation’ commission thus oﬀered the hope of providing a process in which reintegration of persons could occur, and a foundation built for open dialogue and future development. In political terms, the Timorese resistance body, the National Political Commission of CNRT (National Council for Timorese Resistance) identiﬁed reconciliation as a priority by establishing a Commission for Reconciliation in March 2000. Together with Uppsala University and the Human Rights Unit of UNTAET, it convened a workshop to consider the idea of a truth and reconciliation commission in June 2000. In August 2000, at a Congress of the CNRT, a Truth and Reconciliation Commission for East Timor was proposed and endorsed. The Congress explained that: Reconciliation is a process, which acknowledges past mistakes including regret and forgiveness as a product of a path inherent in the process of achieving justice; it is also a process which must involve the People of Timor Leste so that the cycle of accusation, denial and counter-accusation can be broken. This process must not be seen only as a conﬂict resolution or mere political tool which aims at paciﬁcation and reintegration of individuals or groups in the context of their acceptance of [the] independence and sovereignty of Timor Leste but, above all, must be seen as a process where truth must be the outcome.

The UNTAET Human Rights Unit was tasked by the Special Representative of the UN Secretary-General to East Timor (SRSG) to co-ordinate a Steering Group to discuss the body’s establishment. Representatives were drawn from NGOs – including the Association for Ex-Political Prisoners, Fokupers (a women’s rights NGO), and Yayasan HAK (a general human rights NGO) – the Catholic Church, political groupings, and UN representatives (including 16

17

CNRT was the major coalition of political forces that resisted the Indonesian occupation of Timor Leste. It was formed in 1998 as the successor to the National Council of Maubere Resistance (CNRM). CAVR Final Report, above n 4, Part 1, Introduction, 10, quoting Outcomes of the CNRT National Congress, 21-30 August 2000, United to Liberate, United to Construct.

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UNTAET and UNHCR) to contribute to this Steering Group. In the context of the limited governance structures then in operation, it could not be said that there was full community consultation. Certainly, consultation did not take place on a holistic basis, considering the range of transitional justice systems. However, what can be said is that the consultations on the CAVR probably exceeded any other legislative proposal of the UNTAET period: between September 2000 – January 2001, community level consultations were held in each of Timor’s 13 Districts and with concerned groups such as religious communities, the judiciary and political parties. Strong messages came back from these community consultations. In particular, while eﬀorts at reconciliation were generally embraced, ‘justice’ (in terms of individual accountability for perpetrators of serious crimes) was seen as necessary for achieving real reconciliation. As well as thirsting for more information concerning the Serious Crimes Process, community members welcomed the potential role of a truth and reconciliation commission in providing more details of serious crimes, and potentially assisting prosecutions. Trepidation was expressed occasionally concerning opening up the events of 1974–75 for scrutiny, though some participants also spoke of it being important to face not only what Indonesians had done, but what ‘we had done to ourselves’. Community-based methods of dispute resolution were accepted as appropriate for many cases given constraints with the formal justice system, though there was considerable disagreement as to what constituted ‘serious’ and ‘less serious’ crimes. For example, ‘[i]f my house was burnt down, and I have been left with nothing, who is to say this is not serious?’ The majority were vocal in stipulating that those responsible for murder, rape, or the instigation of mass destruction/violations, should be tried and punished. A strong desire to uncover the truth of what happened was also expressed – again the themes of ‘who was most responsible?’ ‘How do we prevent this from happening again?’ After a (relatively) detailed debate in the National Council, legislation establishing the CAVR was approved on 20 June 2001 and the law promulgated by the SRSG on 13 July 2001. B

Functions of the CAVR

Under its governing Regulation, UNTAET Regulation 2001/10, the CAVR was given three central functions: (i) truth seeking; (ii) facilitating community recon-

18

19

The following is based upon the experience of one of the authors who took part in several of the community consultations of the Steering Group. For a fuller listing of the messages from the community consultations, see the CAVR Final Report, above n 4, Part 1, Introduction, 11–2. UNTAET Regulation 2001/10, above n 10.

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ciliation processes for ‘less serious crimes’; and (iii) writing a report containing its ﬁndings. (i) Truth Seeking: In relation to the traditional task of truth commissions, the Commission was empowered to look into the human rights violations that occurred in Timor Leste between 25 April 1974 – 25 October 1999. ‘Human rights violations’ was given a broad deﬁnition for the purposes of the Commission: it was to cover not only violations of ‘international human rights standards’, but also included violations of international humanitarian law and criminal acts committed within the context of the political conﬂicts in Timor. This breadth permitted the Commission to consider acts committed by state and non-state actors, without becoming drawn into the technical arguments surrounding the Commission’s ability to consider the actions of political non-state actors (such as Fretilin or UDT) and to direct attention, instead, on the diﬀerent layers of the conﬂict in Timor. In carrying out this truth seeking, a function akin to that carried out by Royal Commissions or Commissions of Inquiries in other contexts, the Commission was empowered to undertake special investigations and historical research, as well as a nation-wide statement taking process. It was also given compulsory powers – including ordering persons to give evidence before the Commission, and requesting searches to obtain evidence/documentation relevant to the inquiries of the Commission, though the latter powers were not used by the Commission. (ii) Community Reconciliation Process: In what was a more novel feature of a truth and reconciliation commission, the CAVR was empowered to facilitate community reconciliation processes (CRPs) for those involved in ‘less serious crimes’. Under its empowering Regulation, the CAVR was authorised to give priority to CRPs in respect of acts committed during 1999. Essentially, the CRPs were akin to a ‘diversionary justice’ regime, using a modiﬁed form of customary law-type process. One of the perceived strengths of the CRP component was that it built on and incorporated Timor Leste’s customary dispute resolution practices (lisan), in particular, the Timorese concept of nahe biti (lit. stretching, rolling the mat), 20 21

22

Ibid. The starting date represented the date of the Carnation Revolution in Portugal and the end date, the date on which the Security Council authorised the creation of UNTAET through passing SC Res 1272 (1999), UN Doc S/RES/1272 (1999), 25 October 1999. See UNTAET Regulation 2001/10, above n 5. The CAVR placed particular emphasis on the term ‘human rights standards’ (as opposed to law) as permitting it to consider actions of non-state actors that were contrary to principles in international human rights law. The merging of all categories of violations and non-state/state actors was not maintained for all purposes: for example, for purposes of deﬁning accountability for violations of international humanitarian law, it was necessary to classify actors.

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which involves a process of meeting and discussion in order to seek consensus amongst opposing parties. Thus, hearings often involved a role for traditional elders, the chewing of betel-nut, sacriﬁcing a chicken or pig, a symbolic rolling up of the biti (mat) at the conclusion of the hearing, and a celebratory feast. The process was activated by a person confessing a ‘less serious crime’ (in writing) to the CAVR and indicating a desire to undergo the CRP. The case would then be reviewed by the Oﬃce of the General Prosecutor and provided ‘serious crimes’ within the exclusive jurisdiction of the Serious Crimes Process were not involved, the case could proceed through a CRP. A panel involving Regional Commissioners and local leaders (which had to include a women’s representative and a youth representative) would then be convened to deliberate upon the matter in an open community meeting. During the hearing, the panel would hear from the perpetrator and the victim and decide upon an act of reconciliation. The Regulation provided examples of what might be acts of reconciliation without those examples being mandatory or exclusive. These included community service, public apology and/or reparation. In order to institute a safeguard against community panels setting disproportionate penalties or penalties that violated human rights, the Regulation provided that the agreement on the act of reconciliation was to be lodged in the District Court for review and registration. If deemed to meet the criteria and registered, and if the perpetrator fulﬁlled the act of atonement, the perpetrator would become immune from criminal prosecution or civil suit in respect of that act. (iii) Report Writing: Following the conclusion of its research and the CRPs, the Commission was mandated to write a report on the extent, causes and responsibility for human rights violations which occurred between 1974–99. The Commission was to make recommendations to the Government on legal and institutional reforms needed to safeguard human rights in the future, including the question of reparations. II Was the CAVR Successful? As stated at the outset, it is diﬃcult to provide more than preliminary comments about the functioning of the CAVR given that much of the impact of its work will be demonstrated in coming years. At a statistical level, it is possible to highlight the fact that during its term, the CAVR collected some 7824 state23

24

Tradition and custom in East Timor is neither uniform nor static, however there are certain common key elements and practices. See, eg, Dionisio da Costa Babo Soares, ‘Nahe Biti: The Philosphy and Process of Grassroots Reconciliation (and Justice) in East Timor’ (2004) 5(1) Asia Paciﬁc Journal of Anthropology 1–19. UNTAET Regulation 2001/10, above n 5 (as amended). Schedule 1 stated that ‘[i]n principle serious criminal oﬀences, in particular murder, torture and sexual oﬀences, shall not be dealt with in a Community Reconciliation Procedure’.

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ments concerning human rights violations from all over Timor Leste and 91 statements from Timorese living in West Timor. Two hundred and sixteen CRP hearings took place, involving some 1379 perpetrators, with an estimated 40 000 community members present. Eight national public hearings were convened on topics ranging from the experience of women in conﬂict to massacres and internal political conﬂict. Over 50 victim workshops were arranged. Most recently, the CAVR completed a Final Report, totalling over 2000 pages. Signiﬁcantly, the CAVR attempted to consider the range of rights: dealing not only with civil and political infringements such as politically motivated killings and detentions, but also with violations of economic and social rights such as the right to education or the right to an adequate standard of living. Particular attention was paid to attempting to document the experience of women and children. Given the conﬁnes of post-conﬂict development, the completion of such a comprehensive Report represents a considerable achievement. The more diﬃcult question, however, is what contribution the CAVR has made in terms of its overall objectives with respect to reception, truth and reconciliation? Evaluating the eﬀectiveness of any truth and reconciliation commission is a vexed task. It could and should be tackled in a variety of ways. In the ﬁeld of reconciliation, one could take a short-term perspective and look at whether a commission succeeded in averting immediate retaliatory measures against former opposed camps. One could seek to carry out research on attitudinal changes amongst participants in the processes. One could also look at the medium impact in terms of changes instituted within particular communities. For example, in considering ‘reception’, the extent of re-integration of perpetrators into communities and the extent of rehabilitation of victims of human rights abuses. Evaluating ‘truth’ is equally complex. One could examine the extent of ‘new information’ discovered or what has been unmasked/‘revealed’ with the element of denial removed. A longer term view might encourage looking at the impact of the ﬁnal report on institutional changes and attitudinal changes within generations (and in this context, between nations). A commission’s operations should also be looked at from the perspective of deconstructing who were the primary players involved. Was the experience of women equally taken into account in shaping the commission and its operations as the experience of men? How was the experience of diﬀerent categories of persons who came before the commission (perpetrators, victims, witnesses, political groups)? 25

26

In addition to the ﬁrst public hearing ‘Hear our Voices’, the CAVR conducted seven thematic national hearings concerning Political Imprisonment, Detention and Torture, Women and Conﬂict, Self-Determination and the International Community, Children and the Conﬂict, Forced Displacement and Famine, Massacres, and the Internal Political Conﬂict. As to the scope of the CAVR’s work program, see CAVR Final Report, above n 4, Part 1, Introduction.

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The very issue of deﬁnitions is problematic. Michael Ignatieﬀ for instance, has questioned the ability of commissions to produce a ‘single, impartial truth’ and expect it to command agreement and heal social divisions. We could also question what exactly is meant by the term ‘reconciliation’. Does reconciliation have to involve ultimate acceptance of another (and the establishment of friendly relations) or require only peaceful co-existence? In the Timorese context, between whom was this reconciliation to be: between Timorese, or did it extend to between Timorese and Indonesians and/or other actors involved in the narrative? The Oxford English Dictionary (2nd ed, 1989) deﬁnes ‘reconcile’ as: ‘to bring back into concord, to reunite (persons or things) in harmony.’ Yet this deﬁnition does not take us very far. Is reconciliation a process which occurs between individuals or a more ambitious concept that strives towards community or national reconciliation? It is notable that the CAVR, like the South African Commission, did not deﬁne the term ‘reconciliation’ (or ‘truth’), such that the term was open to multiple interpretations. Perspectives on these issues inevitably will inﬂuence one’s attitudes towards evaluating the performance of the results. For present purposes, the authors note the relatively general aims expressed for the CAVR in the Preamble of its enabling Regulation: ‘to promote national reconciliation and healing following the years of political conﬂict in East Timor and, in particular following the atrocities committed in 1999’. It seems diﬃcult to expect such an institution to transform the very personal in people’s relationships, but it does seem feasible for it to lay the foundations for developing relationships based on greater transparency and a fuller basis of information. Proﬁtable use can be made of Priscilla Hayner’s methodology for directing attention to three distinct areas of a truth commission:

27 28

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Michael Ignatieﬀ, Articles of Faith, Index on Censorship (1996), excerpts reprinted in The Elusive Goal of War Trials, Harper’s Magazine, March, 1997, 15–8, 16. The concept of ‘national’ reconciliation has been widely criticised. Michael Ignatieﬀ for example, writes ‘[w]e tend to invest our nations with conscience, identities and memories as if they were individuals. It is problematic enough to vest an individual with a single identity. ... the identity of a nation is additionally ﬁssured by region, ethnicity, class and education’: Michael Ignatieﬀ, The Warriors Honor: Ethnic War and the Modern Conscience (1998) 169. See also Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa (2001). Regarding the concept of reconciliation in South Africa, see, eg, David Philips, ‘Understandings of Reconciliation in the South African Truth and Reconciliation Commission’ (Paper presented at 27th Annual AFSAAP Conference, University of Western Australia, Perth, 26-28 November 2004); Brandon Hamber and Hugo van der Merwe, ‘What Is this Thing Called Reconciliation’ (Paper presented at Goedgedacht Forum After the Truth and Reconciliation Commission, Goedgedacht Farm, Cape Town, 28 March 1998) .

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(i) The process: the extent to which the commission engages the public, provides for full participation and whether it is positive and supportive to victims and survivors; (ii) The product: the quality and nature of the report, the extent of truth revealed, the provisions made for reparation and reform; and (iii) The impact: to what extent the truth commission leads to reconciliation, healing and reform; to what extent perpetrators/state oﬃcials acknowledge and apologise for wrongs, to what extent reparations are provided for, and whether core recommendations are implemented. Given the CAVR’s dual functioning as a truth seeking and active community reconciliation broker for less serious crimes, the criteria for these questions need to be broadened to include such topics as: the extent to which the CRP engaged the local community and provided for full participation; how the CRP was experienced by victims and survivors as well as perpetrators; the nature of the agreements formed during the CRPs, the provisions made for reparation to victims and the extent to which behaviour changed as a result; to what extent the CRP itself tied into more national processes of justice and reconciliation; and the longterm impact of the process on relationships at the local level. In such a short chapter, some brief comments can be made on the CAVR’s operations. A Truth Seeking and Report Writing 1

Process

As noted above, there was a signiﬁcant consultation process preceding the establishment of the CAVR which permitted community input into the shape of the Commission. Once the body was established, there was a period of community ‘socialisation’ to familiarise communities with the functions of the CAVR. In this sense, there appears to have been considerable knowledge about the CAVR and a readiness to participate once the Commission began its regional activities (together with a healthy ‘we’ll wait to see what it delivers’ type scepticism). Participation levels appear relatively high. The Commission received over 7800 statements relating to the commission of human rights violations. Given that Timor Leste’s population is nearly 900 000, with approximately half under the age of 18 years of age, this translates into one statement per 113 members of the population, or one statement per 57 members of the adult population. Public hearings attracted the voluntary testimony of key personnel: at the hearing on 30 31

See, eg, Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocities (2000). These ﬁgures are based on those provided by UNICEF for 2004; with an overall population of 884 000, including 442 000 being minors: <www.unicef.org/>.

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the Internal Political Conﬂict, for instance, testimony was provided by representatives from Fretilin (including President Xanana Gusmao, Minister for the Interior Rogerio Lobato, and Prime Minister Mari Alkatiri) as well as UDT (in particular Joao Carrascalao, President of UDT). Media attention was fulsome within Timor for these public hearings which were well attended in Dili. One of the evident limitations in terms of process was the limited involvement of ‘pro-autonomy’ supporters during 1999. On the steering group, there was a pro-autonomy supporter (who later became a National Commissioner). In addition, two rounds of discussions were held with representatives from the major pro-autonomy group, UNTAS (Uni Timor Aswain – United Warriors for Timor), in August and September 2001. However, both these negotiations were conducted after the ﬁnalising and approval of the Regulation, leading to evident frustration on the pro-autonomy side in their ability to inﬂuence the shape of the Regulation. These consultations did, however, underline the importance for proautonomy supporters of considering not only 1999, but the whole of the 1974–99 period. There were also no speciﬁc consultations with Indonesian authorities. Thus, the CAVR was viewed primarily in domestic terms; as a body to provide reconciliation and truth within Timor and a basis for dialogue with outsiders, rather than a body seeking international truth and reconciliation. Participation of Indonesian actors was particularly limited. President Megawati Sukarnoputri did not respond to an invitation to provide information to the Commission. Similarly, in the national hearing on Self-Determination, the CAVR’s invitation to actors such as former President B.J. Habibie and Dr Mochtar Kusumaatmadja (the former Foreign Minister in the Soeharto Government) failed to elicit responses. Instead, the Indonesian voice was heard through the statements of academics such as Dr Yusuf Wanandi and Dr Asvi Warman Adam and Indonesian human rights NGOs. The political context in which the CAVR was established also raised complications. When the Regulation setting up the CAVR was passed, Timor was administered by the UN rather than a democratically elected sovereign government. The UN was a key body in supporting the establishment of the CAVR, and undoubtedly issues surrounding the time limits of the UN Mission and its need to demonstrate a successful transition to a peaceful, stable, independent state shaped the timing of the CAVR’s establishment. Whilst the Regulation was considered by the National Council, other commentators have highlighted that the National Council did not have the power, or the usual means of operat-

32

33

Note that by the time the CAVR was operational, the ﬁgures of Timorese in West Timor were dramatically reduced. Thus a large number of pro-autonomy supporters were able to be involved in the CAVR process in Timor Leste, and a speciﬁc outreach program aimed to collect statements from Timorese in West Timor. See CAVR Final Report, above n 4, Part 1, Introduction, 31-2.

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ing as a representative Parliament. To a certain degree, the extent of community consultation served to oﬀset some of this ‘ownership’ issue. It is also noteworthy that the Constitution adopted by the elected Timorese Constituent Assembly in 2002. endorsed the continuation of the CAVR, subject to reserving its right to review the mandate of the body (a power which it did not subsequently exercise). The Parliament (post-independence) also endorsed the CAVR and subsequently extended its mandate repeatedly. Furthermore, most of the operations of the CAVR took place post-independence. Given the realities of post-conﬂict institution building, questions have also been raised about the extent of the inﬂuence of international advisers. Interestingly, at a community level and at a governmental level, there was relatively little questioning of the CAVR’s legitimacy as a Timorese institution. What proved to be a greater barrier in the long term was the absence of a similarly comprehensive consultation on the subject of prosecutions and the Serious Crimes Process. From the studies which were carried out contemporaneously with the operation of the CAVR, one can detect an appreciation for the importance of the truth seeking operations of the CAVR. For example, in a study conducted by Piers Pigou, participants expressed an interest in learning more about what happened in other parts of the country: I am also interested to know all of the violations that happened in other regions beside mine because those incidents happened all over Timor-Leste. Women’s group member, 33 years old, Dili

Several focus group members emphasised the importance of recording this chapter of Timor’s history:

34

35 36

37

38

See, eg, J. Morrow and R. White, ‘The United Nations in Transitional East Timor: International Standards and the Reality of Governance’ (2002) 21 Australian Yearbook of International Law 1. Constitution of the Democratic Republic of Timor Leste art 162. Parliament three times extended the mandate of the CAVR: in October 2004 (to 7 July 2005), in July 2005 (to 29 July 2005), and ﬁnally on 29 July 2005 (to 31 October 2005). National Commissioners were sworn in during January 2002, and Regional Commissioners in May 2002, ﬁve days before the handover from the UN to the new Timorese administration. The CAVR then entered its set-up phase with its pilot projects in truth seeking, community reconciliation and victim support occurring in June – September 2002. Pigou, above n 1, 25.

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The violations from 1974 to 1999 are part of history for the people of TimorLeste, and also lessons for future generations to prevent such tragedy from happening again. Male professional, 36 years old, Baucau

Pigou’s conclusion was that ‘not one participant suggested forgetting and moving on in an attempt to draw a veil over the past’. 2

The Product

The Final Report of the CAVR was submitted to the Timorese authorities in late 2005 and to the Secretary-General in early 2006. Initial concerns were voiced by NGOs and the media that the President appeared to be sanctioning a delayed publication of the Report. Indeed, while the CAVR, under its Regulation, was to have made its Report public at the same time as submitting it through oﬃcial channels, this did not occur. For several months, the website of the International Center for Transitional Justice was the major source of information concerning the Final Report. A Post-CAVR Technical Secretariat was formed in December 2005 upon the dissolution of the CAVR with the speciﬁc responsibility to disseminate the Final Report, including a popular version of the Report in the Tetum language. In January 2006, it circulated information detailing its dissemination plan, seeking to counter the fears of suppression. Whilst its work was disrupted by the political and institutional crisis of 2006, it has now been oﬃcially disseminated in all Districts. The Report is over 2000 pages and contains data drawn both from direct personal testimony as well as secondary sources. Some 85,164 human rights violations were reported to the CAVR, including 5000 illegal killings, 833 disappearances, over 25 000 arbitrary detentions, over 8000 cases of ill-treatment, and over 800 cases of sexual violence. Eighty-four per cent of the violations were reported as having been committed by Indonesian military, police and Timorese auxiliaries. Nearly 10 per cent were attributed to Fretilin/Falantil, and 2.5 per cent by 39 40 41

42 43

Ibid 26. Ibid 27. See, eg, International Center for Transitional Justice, ‘Timorese Parliament Should Release Truth Commission Report Immediately’ (Press Release, 28 November 2005) ; Amnesty International Public Statement, ‘Timor-Leste: Denial of Justice?’ (AI Index: ASA 57/005/2005, 29 November 2005) ; Jeﬀ Kingston, ‘The Search for Truth Divides East Timor’ International Herald Tribune (Neuilly Cedex, France), 21 December 2005. Communication from Pat Walsh, Senior Adviser, Post-CAVR Technical Secretariat to NGO Network, 4 January 2006 (copy on ﬁle with authors). CAVR Final Report, above n 4, Part 8, Responsibility and Accountability, 12–15.

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UDT. The Final Report reveals the results of an ambitious program of attempting to measure those whose deaths were as a result of the political conﬂict: either through direct killings, or through processes such as displacement and corralling within areas of insuﬃcient food supply causing starvation. Within the context of the civil war, the Final Report places particular responsibility on UDT for catalysing the armed conﬂict (and providing Indonesia with an excuse to intervene). However, the CAVR was unﬂinching in revealing the human rights violations carried out by Fretilin against political opponents during the civil war, as well as dissidents within its ranks and the community, particularly in the earliest years of the occupation. Violations of women, including sexual slavery and rape, are outlined. With the exception of those considered ‘most responsible’ (primarily senior commanders in the Indonesian security forces and Indonesian Government) and those previously indicted by the Timorese Prosecutor General, the CAVR Final Report does not ‘name names’ in relation to individual perpetrators. Instead, a list of perpetrators who were identiﬁed by witnesses and victims as involved in multiple serious human rights violations was sent to the Prosecutor General (with a recommendation for investigation and/or prosecution). The list was also sent to the President with a recommendation that such persons should be prohibited from holding public oﬃce. In the context of the CAVR’s inability to investigate allegations fully, the risk of misnaming/confusion of naming and the inability of the CAVR to guarantee the safety of victims, this decision is understandable, but will be disappointing to many victims and human rights activists. The CAVR’s Report reﬂects a heavy reliance on the views of victims, with more limited accounts available to it from perpetrators. The CAVR justiﬁed this in terms of attaching ‘special importance to listening directly to those who suffered human rights violations throughout the 25 year period, most of whom had not spoken outside the narrow circle of their family’. The voice of those involved in abuses does appear, however, through accounts of (Timorese) political actors and those involved in auxiliaries and militias. Given the lack of involvement of Indonesian authorities, their perspective is largely absent. In keeping with its mandate, the Final Report includes a range of recommendations, many of which are directed to Timorese authorities and to the strengthening of accountability mechanisms in Timor Leste. A reparations scheme for victims is recommended, to be funded by a ﬁxed allocation from the Timorese budget, reparations from Indonesia, Indonesian business companies and multinational corporations that proﬁted from the war and occupation or sales of weapons, Permanent Members of the Security Council and governments that provided military assistance to the Indonesian Government, and other contributions, managed through a trust 44 45 46

Ibid. For the CAVR’s reasoning in not naming names, see, CAVR Final Report, above n 4, Part 2, The Mandate of the Commission, 11. Ibid Part 1, Introduction, 9.

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fund. Apologies are called for from international actors who contributed to military co-operation programs and recognition is called for from Indonesia. States are also requested to implement sanctions (refusal of visas, freezing of assets) to Indonesian military oﬃcers indicted for crimes against humanity. On the justice front, the CAVR calls upon Indonesia to reform its Ad Hoc process, for the UN to reinstitute the Serious Crimes Process, as well as calling on the Security Council to remain seized of the matter of justice for crimes against humanity and to ‘be prepared to institute an International Tribunal’ should other measures be deemed to have failed. 3

Impact

Signiﬁcant comment on this topic is somewhat premature. Dissemination of the Final Report has only recently been completed. Since this research was undertaken, the crisis of April – May 2006 (discussed further in the postscript) and its aftermath have dominated the political agenda. Parliament has yet to debate the CAVR Report. Given the breadth of the CAVR’s recommendations across a wide variety of Ministries and agencies, a ‘whole-of-government’ response remains necessary to consider and implement the Report’s ﬁndings and recommendations. In one area, at least, it is clear that the CAVR’s recommendations are unlikely to be implemented in the near future: that of continuing eﬀorts to prosecute those guilty of serious crimes through a resurrected Serious Crimes Process in Timor and an international tribunal to prosecute those in Indonesia. As President Xanana stated when handing the Report to the National Parliament: Today, before our most illustrious guests and distinguished Members of Parliament, I must say that, upon learning about the contents of the [CAVR] Report, I concluded that both Minister Ramos-Horta and myself were right when we said the best justice, the true justice, was the recognition by the international community of the right to self-determination and independence the People of Timor-Leste have!

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Ibid Part 11, Recommendation 12.1-12.13, 35-44. The Final Report acknowledges that all Timorese have been victims, but notes that ‘not all victims are equal. We must acknowledge this reality and lend a hand to those who are most vulnerable’. Those regarded as most vulnerable are victims of torture or sexual violence, persons with mental and physical disabilities, widows and single mothers, children aﬀected by the conﬂict, and communities that suﬀered large scale and gross human rights violations. Ibid Part 11, Recommendation 7.2.1, 26. Xanana Gusmao, above n 3.

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He proceeded to justify the Government’s opinion that further prosecutions will not assist Timor’s development, and to explain the Government’s support for the newly established Truth and Friendship Commission, whose mandate includes recommending amnesties. Before the Security Council, President Xanana repeated this message, attributing the lack of ‘revenge killings’ post 1999 to the work of CNRT in facilitating reconciliation meetings and stressing the ongoing reconciliation eﬀorts between Indonesia and Timor Leste: I have had to ask myself if it would be in our national interest − which must include social harmony − to begin a process that I am told by some friends, will bring justice, and have this process go on for years, possibly setting back the democratic consolidation that is being undertaken in Timor-Leste and in Indonesia, respectively? The answer that I came to, after wide consultation with the people, is that it would not be.

According to the President, were the Serious Crimes Process to be reinstituted, a culture of political persecution would ensue, with accompanying political anarchy and chaos. A second area of recommendations with which President Xanana Gusmao has indicated disagreement is that of providing reparations to individual victims of human rights violations. When addressing the Security Council, President Xanana noted that ‘[a]ll the people of Timor-Leste accepted the sacriﬁces for their Homeland’. Rather than criticising states whose direct participation or indiﬀerence and inaction was identiﬁed by the CAVR as enabling an unjust situation to persist and calling for them to contribute to a trust fund, President Xanana thanked states for their assistance more recently in freeing Timor and rebuilding the country; the collective actions of the UN in 1999, he described as ‘acts of redemption, of superior justice’. This is in keeping with the President’s previously stated stance that rather than focusing on individual reparations, Timor should focus on community development. It is clear that the political landscape has changed dramatically from the CAVR’s inception to its conclusion, in particular through the cessation of the

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51 52 53 54

Commission of Truth and Friendship Indonesia–Timor Leste, Terms of Reference for the Commission of Truth and Friendship Established by Indonesia and Democratic Republic of Timor-Leste. For the mandate of the Truth and Friendship Commission, see <www.ctf-ri-tl.org/>. The Situation in East-Timor, Statement by President Xanana Gusmao to the Security Council, UN Doc S/Pv.5351, 23 January 2006, 7. Ibid 6. Ibid. Ibid 5.

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Serious Crimes Process in May 2005 and the establishment of the bilateral Indonesian/Timorese Truth and Friendship Commission. The CAVR was established on the basis that there was and would continue to be a Serious Crimes Process to prosecute serious crimes committed in 1999. Hence the directive to the CAVR to refer serious crimes cases identiﬁed during the CRPs to the General Prosecutor. Some 85 cases were so referred, but not investigated/prosecuted by the time the Serious Crimes Process was dissolved. Even in respect of the estimated 1400 murders from 1999, only 572 have resulted in indictments so far. Another 304 persons who have been indicted have not yet been tried because they remain outside the jurisdiction of Timor Leste. As Judge Rapoza, the last President of the Serious Crimes Panel, stated before his departure from Timor: The lesson to the learned from these numbers, ladies and gentlemen, is that the job is not done. A large number of those responsible for the serious crimes of 1999 have not been held accountable for their actions. As a result, the ﬁght against impunity is not over, although the forces of impunity are being withdrawn from the ﬁeld.

A UN Commission of Experts has made recommendations supporting the resurrection of the Serious Crimes Process, the placement of speciﬁc demands on Indonesia to review its prosecutions, (and barring this) the establishment of an international tribunal. The Security Council has requested the Secretary-General to provide an analysis of this report, indicating a level of unease with its recommendations. The Timorese authorities are opposed, having committed with Indonesia to a process which emphasises not further prosecutions, but further truth seeking and the making of recommendations concerning amnesties. In late 2005, 55 56

57

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In accordance with the Security Council directive and in line with the Government’s policy, investigations were halted in late 2004 and trials in May 2005. Figures taken from Siri Frigaard, ‘Domestic Prosecutions and Transitional Justice’ (Paper presented at the conference organised by ICTJ and the Foundation for Human Rights, Johannesburg, South Africa, 18 May 2005), cited in Megan Hirst and Howard Varney, ‘Justice Abandoned? An Assessment of the Serious Crimes Process in Timor Leste’ (Occasional Paper Series, International Center for Transitional Justice, June 2005) 17 <www.ictj.org/>. Judge Philip Rapoza, ‘The Serious Crimes Process in Timor-Leste: Accomplishments, Challenges and Lessons Learned’ (Paper presented at the International Symposium on UN Peacekeeping Operations in Post-Conﬂict Timor-Leste: Accomplishments, Challenges and Lessons Learned, Dili, Timor-Leste, 28 April 2005) . Letter from the President of the Security Council to the Secretary-General, 28 September 2005, UN Doc S/2005/613. The letter requested the Secretary-General to submit a report on justice and reconciliation ‘with a practically feasible approach’ taking into account the Commission of Experts report together with the views of Indonesia and Timor Leste.

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this Truth and Friendship Commission began its preliminary operations (with several former CAVR Commissioners taking on roles in the new Commission). While this body will broach relations with Indonesia and be able to look at issues of responsibility of Indonesian actors in a way that was not possible for the CAVR (or indeed the Serious Crimes Process), the Truth and Friendship Commission is a process that is explicitly directed towards amnesties, rather than prosecutions and is thus philosophically distinct from the CAVR’s approach embodied in its recommendations. The Truth and Friendship Commission is, however, in keeping with the policy articulated by Foreign Minster Jose Ramos Horta that Timor Leste needs ‘restorative justice’ focussed on the future, rather than ‘retributive justice’ focussed on prosecution, punishment and the past. Signiﬁcant questions may be raised if diﬀerent ‘truths’ emerge from the CAVR and the Truth and Friendship Commission in a manner parallel to the diﬀerent narratives which emerged from the Indonesian Ad Hoc trials and the Timorese/UN Serious Crimes Process. As Dr Asui Warman Adam submitted to the CAVR: The collective memory of both nations will determine the nature and the strength or weakness of the relationship. This will be reﬂected in the writing of history of both countries.

B

Community Reconciliation Process 1

Process

The CAVR was remarkably successful in raising awareness of the CRPs throughout East Timor. Approximately 40 000 people (of a population of less than one million) attended CRP hearings from across the country, including men, women and children, and the level of community participation and discussion was generally high. Hearings often continued all day and well into the night. The comAddress by H.E. Jose Ramos Horta, 61st Session of the Commission on Human Rights, 14 March – 22 April 2005; The Situation in East-Timor, Statement by President Xanana Gusmao to the Security Council, UN Doc S/PV.5132, 28 February 2005, 8. See also the views expressed by the Co-Chairman of the Truth and Friendship Commission, D.B. Soares, ‘East Timor: Reconciliation and Reconstruction’ (2007) East Timor Law Journal 3, available at . 60 CAVR Final Report, above n 4, Part 3, The History of the Conﬂict, 5. 61 Community participation in CRP hearings varied from a few dozen to many hundreds. A range of variables impacted on levels of attendance including: the kinds of cases that were being addressed, and whether the deponent was high proﬁle. See Piers Pigou, ‘The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation’ (Report for United Nations Development Programme, Timor Leste, April 2004) 84 . It should also be noted that overall, more men than women participated in hearings. Hearings that continued to 59

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position of the panels, in particular the involvement of members from the host community and incorporation of a role for traditional leaders, appears to have enhanced the legitimacy of the process and encouraged community participation. While the Regulation set out some basic steps to be followed in a hearing (including that panels must hear from the deponent, victims and other community members who could provide relevant information), beyond this, panels were given considerable ﬂexibility to determine their own procedures, encouraging them to develop speciﬁc responses to local situations and to incorporate elements of local traditional practice. Pigou, in his examination of the process, found that the incorporation of tradition and custom into the CRP was widely regarded as both necessary and useful, and that the involvement of traditional leaders endorsed both the process and its outcome. 2

Product

One can see concrete results in the form of the re-integration of perpetrators of minor crimes – or deponents – through the Community Reconciliation Process. Just under 1400 cases of minor crimes were successfully completed through the CRP (surpassing the CAVR’s initial goal of 1000) and, in the vast majority of cases, deponents complied with the terms of their community reconciliation agreements. Evidence of the popularity of the program is also suggested by the fact that at the conclusion of the CRP hearings there were still large numbers of perpetrators of minor crimes who wished to take part in the program. According to the CAVR’s Final Report, nearly 90 per cent of all cases received by the Commission proceeded to completion. The remaining 10 per cent were cases where a deponent did not attend the scheduled hearing, the hearing

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late in the night often made it diﬃcult for women to attend if they had children to care for or domestic tasks: see Kent, above n 2, 39. As we have noted above, ss 26.1-26.2 of UNTAET Regulation 2001/10, above n 5, required Regional CAVR Commissioners to convene a panel of between three to ﬁve persons, and that this panel should include local community representatives (from the host community), have appropriate gender representation, and be chaired by the Regional Commissioner. Panel members should also include sectoral representation from the youth, the church as well as local community leaders. While traditional leaders were generally not included in the CRP panel, they often retained an ‘overseeing role’, which required them to endorse and support the process and the agreement reached. Ibid ss 27.1, 27.2. Pigou, ‘The Community Reconciliation Process’, above n 61, 30. Ibid 81.

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was adjourned, or the Oﬃce of the General Prosecutor did not consent to them proceeding through the CRP. 3

Impact

As noted above, the impact of the CAVR in terms of its contribution to ‘reconciliation’ depends on what one expects of this process and whether one is referring to reconciliation between individuals, or a more ambitious concept of ‘community’ or ‘national’ reconciliation. While it is perhaps also too early to gauge the long term impact of the CRPs at the local community level, here we make some brief remarks about the impact of the reconciliation process on the lives of individual victims and deponents who participated in the CRP hearings. This is followed by some preliminary comments about the community level. (a) The Experience of Deponents

Examining the level of individual perpetrators, victims and communities involved in the CRP’s, it appears that there is a distinct diﬀerence in experiences/satisfaction levels that highlights the inevitably complex narrative of seeking ‘reconciliation’. In a community evaluation conducted in 2004 of 24 deponents and 24 victims who participated in CRP hearings, deponents were generally positive, stressing the importance of being able to explain their actions in front of their community and clear their name. A number described feeling ‘freer’ or ‘lighter’ following their participation in a CRP hearing, or explained that the process had been important for their children’s future acceptance in the community. In spite of the positive change in their own circumstances, the question of justice (or lack of ) for those who committed serious crimes coloured deponents’ experience of the CRP. Deponents frequently expressed dissatisfaction that those who committed serious crimes had not yet been prosecuted and in many cases remained living across the border, in West Timor. The majority of deponents perceived themselves to be the ‘little people’, commonly describing themselves as ‘poor farmers’, forced to commit the crimes that they did at the behest of militia leaders. While grateful for the change experienced in their own lives, they found it humiliating and unjust that only they should be held to account for their

66

67 68

The CAVR Final Report notes that at the conclusion of the CRPs, 111 cases had been retained by the Oﬃce of the General Prosecutor, which had exercised its jurisdiction in relation to serious crimes matters. This number includes 85 cases over which the Oﬃce did not grant approval to proceed through a CRP and 32 cases which were suspended at the CRP hearing stage due to new information relating to serious crimes coming to light, or because communities refused to accept the deponent. See CAVR Final Report, above n 4, Part 9, Community Reconciliation, 29. Kent, above n 2, 12. Ibid.

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actions, while those who committed serious crimes remained out of reach of the law. As a deponent in Suai explained: It’s like a tree that is rotten. If we keep cutting oﬀ the branches the tree will still live. We need to cut out the root.

Similarly, a deponent in Ainaro stated: The Mahidi [militia] leaders are still in West Timor and haven’t come back. We feel it is not right that the big people are still free. They are like the root of the tree, we are only the branches. ... We feel happy to take part in the reconciliation process but we still feel heavy because we small people have gone through the process but the big people are still free. … The state has to bring them back … they should be taken to the tribunal if we are going to be satisﬁed. 

Indeed, as we have noted above, it was always envisaged that the CAVR would operate in a complementary manner with other mechanisms, namely the work of the Serious Crimes Process. The division of responsibility for ‘serious crimes’ and ‘less serious crimes’ appeared on the surface to be a balanced and co-ordinated response to meeting the challenge of justice and reconciliation. The CAVR’s Regulation preserved the exclusive jurisdiction of the Oﬃce of the General Prosecutor over the prosecution of ‘serious crimes’ (deﬁned according to the relevant Regulation). It also provided general criteria for cases which might be appropriately dealt with in a CRP: including the nature of the crime, the total number of acts committed, and the deponent’s role. Yet, in reality, the Serious Crimes Process had been constrained by a myriad of factors including the national limits of its jurisdiction and the slow pace of prosecutions. Consequently, a signiﬁcant proportion of those responsible for the most serious crimes remained outside the reach of eﬀective prosecution. The ironic result is that those who were suspected of committing serious crimes are often those who have had to make the least penance to the community. 69 70 71

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Ibid 16. Ibid. UNTAET Regulation 2000/15, above n 15. ss 1.3, 2.2. ‘Serious crimes’ were deﬁned as war crimes, crimes against humanity, genocide and torture and murder and sexual oﬀences. The panels set up had exclusive jurisdiction over the international crimes (whenever and wherever they occurred), but its jurisdiction was limited in relation to murder and sexual oﬀences to those that occurred within the territory of East Timor between 1 January 1999 − 25 October 1999. See UNTAET Regulation 2000/10, above n 5, Schedule 1. It was later amended to underline the fact that murder and sexual oﬀences were not considered appropriate for serious oﬀences, the original wording referring to the exclusion of ‘serious criminal oﬀences’.

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(b) The Experience of Victims

CRP hearings were also expected to provide a number of beneﬁts to victims of minor crimes, and the Regulation establishing the CAVR named ‘assisting in restoring the human dignity of victims’ as a core objective. In particular, the opportunity for victims to confront their perpetrators and tell their stories in a public forum was expected to contribute to the healing process. The idea that individual and social healing is possible through public testimony is a common premise in the establishment of truth commissions and, for example, in South Africa, the phrase ‘Revealing is Healing’ was adopted as the Commission’s catchcry. The community evaluation found that victims expressed reactions towards the CRP that were more complex than those of deponents, yet also reﬂected the interconnections between less serious crimes and serious crimes. A key issue was that a signiﬁcant number of victims of minor crimes had also experienced the death or disappearance of a family member. In many of these cases, bodies have not yet been recovered and perpetrators have yet to be prosecuted. The most positive of this group were those who had been victims of minor crimes only. Many had welcomed the opportunity to confront their perpetrator and were ready to accept that the deponent had been forced to commit his or her actions as a consequence of the war. Reﬂecting a similar view to deponents, these victims often expressed a view that the deponents were ‘little people’ who could be forgiven. As one victim in Ermera explained: I didn’t think the deponents did what they did because of his own behaviour but because they were used by others. I wanted to accept them to achieve peace in our nation, community and family.

However, for victims who had also experienced the death or disappearance of a loved one, the CRP has raised more complex emotions. For this group it has been almost inconceivable to contemplate a process of reconciliation while justice for 73 74

75

Ibid 3.1(f ). This view, however, is one that is widely contested. See Brandon Hamber, ‘Does the Truth Heal? A Psychological Perspective on Political Strategies for Dealing with the Legacy of Political Violence’ in Nigel Biggar (ed), Burying the Past: Making Peace and Doing Justice After Civil Conﬂict (1st ed, 2001) 131. See also Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Human Rights Quarterly 573–639. Fletcher and Weinstein suggest that while catharsis may have some short-term beneﬁt for some, healing is a long-term process that involves signiﬁcantly more than emotional abreaction: at 593–94. See also Rosalind Shaw, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone (2005) United States Institute of Peace Special Report Shaw questions the value of truth telling in the Sierra Leone Truth and Reconciliation Commission. Kent, above n 2, 19.

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serious crimes has not yet been served. The motivations and desires of this group remain overwhelmingly the recovery and burial of bodies; the desire for a full and truthful account of the circumstances surrounding the death of loved ones; and the prosecution of those responsible. For example, as a man who was participating in the CRP because his house had been burned down during the post-ballot violence explained: About my house and buﬀalo, they were burnt while I was in West Timor. But I did not speak about these things at the [hearing] … The value of a house and buﬀalo is not the same as a human being. The house and buﬀalo are still important, I still think about these things. But I ﬁrst need to resolve the case of my brother [who was murdered by militia members in September 1999].

Those who have lost family members often maintained hopes that the CRP hearings would provide opportunities for gathering facts, evidence and witnesses about the death of loved ones that may one day be useful in a court of law. The restriction of the CRP mandate to minor crimes meant, however, that the ability to explore the ‘whole truth’ in relation to these questions was inevitably frustrated. Thus, participating in a CRP hearing has frequently brought disappointment rather than closure for this group. Several explained that rather than feeling ‘lighter’, they continue to feel ‘heavy’ or ‘broken hearted’ because the CRP hearing has caused them to remember once more the painful events of the past and has not brought the desired results. As one young widow explained: The CAVR has opened up our wounds, our pain, and now what is going to happen?

(c) Reparations

The question of reparations – both of the material and the symbolic kind – remains another critical factor aﬀecting victims’ acceptance of the CRP. For many victims, the opportunity to tell their story in a public forum has simply not been suﬃcient. This is perhaps not surprising given the reality of impoverishment in which many East Timorese live. In the community evaluation, victims and community leaders frequently raised the need for economic assistance, particularly for vulnerable groups such as widows and orphans. Interestingly, suggestions 76 77 78

Ibid 22. Ibid. According to the World Bank, with a per capita GDP of us366, Timor Leste is among the poorest countries in the world. In 2001, one in ﬁve people lived on less than one dollar a day. See World Bank Country Assistance Strategy for Timor-Leste, 2006-08, Creating the Conditions for Sustainable Growth and Poverty Reduction, World Bank Timor Leste, 15 .

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for reparations tended to gravitate towards forms of assistance that would allow victims and their families to rebuild their lives and recover lost opportunities, rather than monetary payments. Respondents focussed on the right for orphans and children of widows to access education, the right for those with injuries to access health care, the right to work, and the right for widows and victims to some means of subsistence. In the absence of attention to economic issues, there remains a pervasive sense by victims of being neglected. As one man who recently participated in a CRP hearing stated: We talk and talk from morning to night and then we come home and we are still hungry … I can’t even buy salt but I see some people living very well.

Or as a young widow explained: I am tired of talking to diﬀerent groups … I feel like many human rights groups have already come and interviewed me and until now I have not seen any result … I feel [as though no one cares] about our welfare or our children or about our day-to-day lives.

Allied to this sense of being forgotten is a perception held by many victims that there is economic disparity between themselves and the deponents. Several victims expressed a view that the deponents continued to ‘live well’, continuing to work in their positions as civil servants or teachers, while their own lives had not improved. This has exacerbated the sense of disappointment and bitterness they feel. The issue of reparations is a complex one and has often been a stumbling block in other truth and reconciliation commissions. While the South African Truth and Reconciliation Commission recommended legislation to establish monetary payments, medical treatment, counselling, information about mur79

80 81 82

See also a study carried out by the Chilean human rights organisation CODEPO and the Association for the Prevention of Torture (APT) Switzerland, in which survivors emphasised the importance of education for the children of those killed: Victor Espinoza Cuevas, Maria Luisa Ortiz Rojas and Paz Rojas Baeza, Truth Commissions: An Uncertain Path? Comparative Study of Truth Commissions in Argentina, Chile, El Salvador, Guatemala and South Africa from the Perspectives of Victims, their Relatives, Human Rights Organizations and Experts ( June 2002) The Association for the Prevention of Torture . A recent study by the International Center for Transitional Justice and the Human Rights Center, University of California, Berkeley, in Iraq discovered similar ﬁndings: Iraqi Voices: Attitudes towards Transitional Justice and Social Reconstruction (ICTJ Occasional Paper Series, May 2004) International Center for Transitional Justice . Kent, above 2, 25. Ibid 23. Ibid 26.

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dered relatives, and the naming of parks and schools, to date, the commitment of the South African Government to implement these recommendations remains uncertain. As in South Africa, the CAVR was not given a mandate or funds to deal comprehensively with the question of reparations for victims but rather, to make recommendations to the Government of Timor Leste regarding future initiatives. As in South Africa, disappointment on the part of victims is likely to ensue if there is not a timely response to these issues following the release of recommendations contained in the Final Report. (d) The Role of Victims in the CRP

The dissatisfaction of many victims with the CRP also highlights some broader concerns surrounding the place of victims within the CRP. As we have previously noted, the CRP was designed primarily around the reintegration of minor perpetrators, as an alternative to the formal legal system for cases of minor crimes. While reference was frequently made to victims and the potential importance of acknowledgement, apology and community service were recognised, no speciﬁc role or responsibility was designated to them in the process. The Regulation provided, for example, that victims’ consent would not be required in order to conclude a community reconciliation agreement. Decisions around appropriate acts of contrition to be performed by a deponent were left to the CRP panel’s discretion, although the victim could express their views on the matter. Moreover, the hearings were ‘perpetrator-driven’, victims were unable to initiate a hearing but were called to participate at the request of a deponent. A decision was also taken that victims could not pursue civil action in relation to their case in the future, following the resolution of that case through the CRP. 83

84

85

86

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Catherine Jenkins observes that the importance of reparations was undoubtedly underestimated in South Africa and was perhaps the ‘Achilles’ heel’ of the entire process: Catherine Jenkins, ‘A Truth Commission for East Timor: Lessons from South Africa’ (2002) 7 Journal of Conﬂict and Security Law 233, 251. The CAVR did however establish an urgent reparations scheme, intended as a temporary measure, which was developed in partnership with the Community Empowerment and Local Governance Project (CEP): CAVR Final Report, above n 4, Part 10, Acolhimento and Victim Support, 39. The CAVR Final Report urges the Government of Timor Leste to implement a program of reparations for the most vulnerable victims of human rights violations: above n 4, Part 11, Recommendation 12.1, 35. UNTAET Regulation 2001/10, above n 5, Part IV. This issue was considered by the Steering Committee prior to the establishment of the CAVR and a decision was taken that the terms of the agreement would be left to the competence of the panel. Contrary to the CAVR’s expectations, the acts of atonement requested of a deponent tended to be extremely lenient, and in the majority of cases, an acknowledgement of truth and public apology rather than requiring community service, reparation or other act of contrition was requested of the deponent. See CAVR Final Report, above n 4, Part 9, Reconciliation, 39.

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The policy behind these decisions was well-meaning, and based on the need to ensure that the cases of deponents would be settled in an achievable way. Allied to this were the practical diﬃculties of ensuring the consent of individual victims in cases in which a deponent committed a number of crimes in the one community. In a large number of cases (for instance, mass house burnings), deponents were seeking to reconcile with a number of victims in their community, rather than a single person. Yet these policy decisions undeniably had consequences for the needs and rights of individual victims. For example, briefing of victims prior to hearings and support for them following hearings was at times neglected. Little attention was paid to the development of coherent policies regarding victim protection and preparation. Consequently, at times victims had little understanding of the process they were participating in, and sometimes felt pressured by community leaders, family members or the panel into ‘accepting’ a deponent when they did not wish to. (e) The Impact of the CRP at the Community Level

It is too early to comprehensively gauge the extent to which the program has contributed to long-lasting co-existence at the local level. Nonetheless, we venture to suggest that the contribution of the CRPs in this area has been uneven. Whilst it facilitated the integration of many deponents back into their communities, it also highlighted ongoing expectations of a formalised response to serious crimes. Ironically, the very successful and extensive community education process conducted by the CAVR had the unintended eﬀect of raising awareness of the serious crimes investigations process. As Pigou describes it, East Timorese people were sold a ‘justice and reconciliation package’, in which they expected the serious crimes process to follow-on from where the reconciliation process left oﬀ. These expectations, if left unfulﬁlled, may result in heightened disappointment and anger. A related issue of concern is the question of the perpetrators whose cases have been referred to the Oﬃce of the General Prosecutor; the so-called ‘pending cases’. As noted above there are approximately 111 cases in which the Oﬃce of the General Prosecutor has exercised jurisdiction, either because a deponent’s statement contained an admission of serious criminal oﬀences or because a CRP hearing was suspended due to new information related to serious crimes coming to light during the course of the hearing. The likelihood of future legal action on these cases is extremely low. The community evaluation found that a number of 88

See, eg, Patrick Burgess, ‘Justice and Reconciliation in East Timor: The Relationship between the Commission for Reception, Truth and Reconciliation and the Courts’ (Unpublished paper presented at the International Conference at the Irish Centre for Human Rights, Galway University, 3–5 October 2002). 89 See Kent, above n 2. 90 Pigou, ‘The Community Reconciliation Process’, above n 61, 11.

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those whose cases were ‘pending’ were anxious about the resolution of their cases. While in theory these cases are conﬁdential, in reality, in small, remote communities in which victims and deponents live side-by-side and are often related to one another, the concept of conﬁdentiality has little resonance. III

Some Lessons Learned

At this point in time, it would be premature to draw deﬁnitive conclusions about the success of the CAVR. Much is in ﬂux in the national and international arena. Moreover, as we have suggested, there are inherent complexities in attempting to evaluate the CAVR’s contribution to reconciliation in a context in which expectations in this area remain unresolved. The CAVR is but one player in a complex social, economic and political setting. At present, perhaps all that can be said is that the CAVR has achieved some limited successes. In its truth seeking function, the Commission appears to have avoided the temptation to create a particular kind of narrative truth that promotes political stability and instead, managed to convey the complexity and contested nature of Timor Leste’s history. It has provided a forum for victims to tell their stories; it has opened up the events of the civil war to more open discussion than had previously been the case and it has commenced a process of putting together an historical record of human rights abuses that occurred during the Indonesian period (some of which have never before been the subject of critical study). The CRP program has provided for the re-integration of a large number of East Timorese involved in low-level oﬀences during 1999. Yet, at this juncture, a number of questions remain unanswered. In particular: – What happens to expectations of individual accountability for those most responsible for human rights violations? – What happens to the expectations of those victims wishing to know more about the fate of their family members? – From whence will come the acknowledgement of culpability for those outside Timor Leste? – And ﬁnally, from whence will come necessary measures of reparation for victims of human rights abuses? At a broader level, these unanswered questions demonstrate a number of preliminary lessons that can be learned from East Timor’s truth and reconciliation experience. 91

See Frederick Rawlski, ‘Truth Seeking and Local Histories in East Timor’ (2002) 1 Asia Paciﬁc Journal on Human Rights and the Law 77–96. Rawlski suggests that to be most eﬀective, the CAVR would need to struggle between creating an oﬃcial narrative that promotes stability, and loyalty to its own truth-seeking functions: at 94.

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A ‘Survivor-Centred’ Mechanisms The views expressed in the community evaluation of the CRPs indicate that for many victims and survivors of violence in Timor Leste, speaking about their experiences has not been suﬃcient. Data is not available on the experience of victims during the public hearings, but it was evident that support structures were somewhat limited. This is not surprising, as the therapeutic nature of telling one’s story has long been questioned within the psychological literature. At the very least, the development of appropriate support structures for victims who testify before truth and reconciliation commissions needs greater attention. Brandon Hamber has argued for the need for a ‘survivor-centred’ approach to Truth and Reconciliation Commissions. He warns of: the real danger of unearthing trauma without formulating a clear strategy to deal with the anger, sadness and other emotional diﬃculties that may arise. It is imperative that the TRC does not unearth painful memories … without ensuring that appropriate services and support structures are available to them. The psychologically [sic] healing process of testifying or telling ones [sic] story is not dependent upon the content of the story … but rather on the environment and the process of the actual re-telling.

The priority placed upon economic well-being by community leaders and victims suggests that a ‘survivor centred approach’ will require ongoing attention to the issue of reparations. Although, as Martha Minow suggests, we should be mindful of the dangers of reparations programs, in particular the suggestion that reparations somehow remedy non-monetary harms. Nothing, Minow warns, ‘should imply that money repayments, returned property, restored religious sites, or apologies seal the wounds, make victims whole, or clean the slate’. Nonetheless, reparations may play an important practical and symbolic contribution in a context of real impoverishment. As Naomi Roht-Arriaza writes, ‘reparations may be the most tangible and visible expression of both acknowledgement and change, and in that sense an important contributor to reconciliation and social reconstruc92

93 94

95

Indeed, the CAVR Final Report acknowledges that more consideration could have been given to the role and contribution of victims, stating that ‘a stronger place for victims in the formal decision-making structure of the CRP would have helped ensure their interests were not overlooked: above n 4, Part 9, Community Reconciliation, 39. Fletcher and Weinstein, above n 74, 593. Brandon Hamber, The Need for a Survivor-Centered Approach to the Truth and Reconciliation Commission Community, ( June 1996) Centre for the Study of Violence and Reconciliation . Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998) 117.

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tion’. Indeed, in the absence of attention to issues of reparations, truth and reconciliation commissions may risk having little impact on the everyday lives and attitudes of those who dignity they purport to restore. An underlying theme of many of these lessons is the need to involve victims and survivors in discussions about what transitional justice strategies, including questions of truth, reconciliation and justice, should look like, and the importance of developing integrated approaches to such processes. Eric Stover and Harvey Weinstein, for instance, speak of more integrated approaches to ‘social reconstruction’, positing an ‘ecological model’ of social reconstruction including programs that promote justice, democracy, economic prosperity and transformation and reconciliation. B The Need for Integrated Transitional Justice Strategies The divergence apparent in the debate over ‘justice’ (that is prosecutions of those most responsible for the serious crimes committed), highlights the need for an integrated transitional justice strategy from the earliest stages. Whilst the CAVR was founded upon an assumption of a continuing process of criminal prosecutions and its community consultations reﬂected support for this parallel conceptualisation, it is clear that there was not a clear shared vision of transitional justice. Diﬀerences of opinion have emerged over time, especially amongst political leaders. In the Timorese context, it was perhaps related also in part to the timing of the Commission, being established during a period of UN administration. However, even had the Commission been established post-independence, there remained a need for widespread consultation on appropriate policy with respect to those who had committed serious crimes, both of Timorese and Indonesian origin. The current impasse means that the CAVR has required perpetrators of ‘less serious crimes’ to undergo a signiﬁcant public process and bear responsibility for their actions, whilst many involved with ‘serious crimes’ have not been similarly brought to account or prosecuted. Similarly, the CAVR proc96

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Naomi Roht-Arriaza, ‘Reparations in the Aftermath of Repression and Mass Violence’ in Eric Stover and Harvey M. Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004) 121. Roht-Arriaza suggests that reparations can encompass a range of measures, both moral and material. Material reparations can include restitution of lost or stolen property, a job, a pension. They can include rehabilitative services to victims, including medical, psychiatric or occupational therapies. They can encompass monetary compensation. Moral reparations can encompass the disclosure of facts of a victim’s mistreatment or a loved one’s death, and the public naming of those responsible for these crimes. They can include oﬃcial apologies and acknowledgement of wrongdoing, judicial proceedings, the exhumation and identiﬁcation of the remains of victims, and assistance in reburials and mourning ceremonies. A collective aspect may also be important, including public memorials, days of remembrance, parks or other public monuments. Ibid 325.

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esses have revealed the depth of human rights violations which occurred. It has yet to be seen what impact this will have on community expectations with respect to justice. IV

Conclusion

Ultimately perhaps, there is a need for humility and recognition that there are no blueprint solutions; the process of reconciliation in post-conﬂict societies is in the end a more complex, long-term and politically contested process than the establishment of a commission would suggest. Yet, as truth commissions increasingly become an aspect of the recommended ‘toolkit’ for successful transitions to democracy – part of the recipe for post-conﬂict development and nation building – there is a danger that such institutions come to represent a kind of ‘quick ﬁx’ solution. Expectations, for example, that truth commissions can help a nation heal and reconcile after widespread human rights abuses are likely to invite disappointment. Perhaps, as Minow reminds us, no one framework itself is adequate. However, as she writes: through collective steps such as prosecutions, truth commissions, memorials, and education, people wager that social responses can alter the emotional experiences of individuals and societies living after mass violence. Perhaps rather than seeking revenge, people can come to desire to rebuild. The wager is that social and political frameworks can make a diﬀerence to how individuals emerge from devastating atrocities.

The CAVR has been part of this framework, but ultimately must be seen in the context of the range of institutional responses to Timor Leste’s experience of gross human rights violations. For many East Timorese survivors of violence, the journey towards justice, reconciliation and healing remains far from complete. V

Postscript

The research and writing of this article occurred in early 2006. In April – May 2006, Timor Leste became embroiled in a political and institutional crisis which saw signiﬁcant fracturing of the military and police forces, culminating in an open armed confrontation between elements of the two forces, an outbreak of violence by youth gangs and the displacement of some 150 000 persons, many of whom remain living in camps for internally displaced persons. Responding to the breakdown in security and restoring institutions continues to dominate the political agenda. The nature of the crisis is detailed at length in the Report of the UN Independent Special Commission of Inquiry (ICOI), convened at the 98

Minow, above n 95, 147.

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request of Timorese authorities. The breakdown of law and order in the capital, Dili, led to the return of international peacekeepers to Timor Leste and the United Nations’ resumption of executive responsibility for policing. With the resignation of the Prime Minister, together with key Ministers (including the Minister for the Interior and the Minister for Defence), an interim Government was formed under the Prime Ministership of Jose Ramos Horta. Elections for both the President and Parliament are scheduled for early to mid 2007. The causes and dynamics of the 2006 crisis are complex and multifaceted. However, it is the view of the authors that these events do not themselves undermine the achievements of the CAVR. Instead, the events of 2006 and 2007 reinforce our view that the pursuit of reconciliation is a long-term process, requiring a holistic and long-term approach. The crisis has demonstrated the fragility of key state institutions and the urgency of giving serious consideration to the implementation of many of the recommendations of the CAVR Final Report, including those relating to strengthening accountability structures within the police and military, strengthening the justice sector and the ‘rule of law’, countering impunity, and providing reparations to victims. The crisis has also reinvigorated public discussion in Timor Leste on questions of justice and reconciliation, with some civil society organisations linking the lack of accountability for those who committed the most serious crimes in earlier periods to the development of a climate of impunity and lawlessness. The crisis has also highlighted the diversity of divisions within the Timorese community. In addition to those studied by the CAVR, other layers of divisions have risen to the surface in recent events: including tensions within the Resistance movement, as well as the seemingly more recently produced cleavage between ‘Easterners’ and ‘Westerners’. The exploration and reconciliation of these tensions will be a necessary priority for healing the rifts of 2006 and restoring conﬁdence in state institutions.

A copy of the October 2006 Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, can be accessed at . For additional analysis of the conﬂict see the International Crisis Group, Resolving Timor-Leste’s Crisis, Asia Report No 120, 10 October 2006, . 100 See, eg, Timor Leste National Alliance for an International Tribunal, Letter to Koﬁ Annan, Secretary-General United Nations, 21 July 2006, available at .

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Chapter 9 Diﬀerent Models of Tribunals Madelaine Chiam

The International Military Tribunal (IMT) at Nuremberg represented the ﬁrst time that senior political and military leaders were tried and sentenced by an international tribunal for their part in the commission of crimes against peace, war crimes and crimes against humanity. The legacies of the IMT, both positive and negative, were inﬂuential in the creation of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The lessons of these later Tribunals have in turn aﬀected the way in which subsequent postconﬂict tribunals have been composed and function. The Special Court for Sierra Leone, the East Timor Special Panels, the Cambodian Extraordinary Chambers and the Kosovo Courts, as well as the International Criminal Court (ICC), have been constructed to address at least some of the limitations identiﬁed with the earlier Tribunals. The social and political consequences of the IMT, ICTY and ICTR have also had an impact on views about the role of truth commissions and other mechanisms, such as reparations, in transitional justice. Indeed, the international community has learned much from the many diﬀerent transitional justice mechanisms that have developed since the IMT. One lesson, perhaps the most important, is that there is no ‘model’ approach to transitional justice. As the former United Nations Secretary-General has stated, ‘[w]e must learn as well to eschew one-size-ﬁts-all formulas and the importation of foreign models, and, instead, base our support [for transitional justice] on national assessments, national participation and national needs and aspirations’. This attitude might have its origins in the IMT, but it is also a considerable way from the aims of that Tribunal, in as far as it sought to ensure international criminal accountability for mass murderers and torturers. This chapter undertakes a modest exploration of three models of judicial tribunals that have been established in the aftermath of mass atrocity: international, ‘mixed’, and national tribunals. The chapter aims to examine how the international community’s attitudes towards transitional justice have shifted to take into 1

Report of the Secretary-General, The Rule of Law and Transitional Justice in Conﬂict and Post-Conﬂict Societies, UN Doc S/2004/616 (2004), Summary.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 205-228.

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account the experiences of each model. Observers of these tribunals have adopted diﬀerent approaches to assessing their successes and failures, and many of the critiques relate to either: 1. The extent to which the tribunals have, and are seen to have, provided justice: justice being understood as holding individuals accountable in a manner that adheres to international standards of fair process; and 2. The degree to which the tribunals have contributed to a process of reconciliation within the local society. Judicial mechanisms have often been used in conjunction with other means of achieving accountability and reconciliation, such as investigatory commissions, truth commissions, lustration mechanisms, civil remedies and reparations. Diﬀerent chapters in this volume address in detail the substantive issues relating to the extent to which tribunals and other accountability mechanisms play a role in long-term reconciliation within domestic societies. My intention here is not to revisit those arguments. Rather, my aim is to use the two broad themes of justice and reconciliation as a guide to the way post-conﬂict tribunals have been perceived and, thus, to the way that tribunal processes have been subsequently designed. In the remainder of this chapter, I outline the establishment of a number of tribunals, their institutional design, and the extent to which those tribunals have succeeded in meeting the expectations of their diﬀerent constituencies. In exploring the motivations for and the workings of diﬀerent international, ‘mixed’ and national tribunals, I argue that, despite the many criticisms that have been levelled at the judicial arm of transitional justice mechanisms, these processes are, and will remain, signiﬁcant in securing justice after conﬂict. I

International Tribunals: The ICTY and the ICTR

The ICTY and ICTR, as the ﬁrst international war crimes tribunals to be established since World War Two, are the most obviously direct descendants of the Nuremberg IMT. The character and work of these Tribunals are well-known, and

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See, eg, Ivana Nizich, ‘International Tribunals and their Ability to Provide Adequate Justice: Lessons from the Yugoslav Tribunal’ (2001) 8 ILSA Journal of International and Comparative Law 353; Diane F. Orentlicher, ‘Judging Global Justice: Assessing the International Criminal Court’ (2003) 21 Wisconsin International Law Journal 495; Michael P. Scharf and Ahran Kang, ‘Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL’ (2005) 38 Cornell International Law Journal 911. For a brief discussion of these mechanisms, see M. Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ in M Cherif Bassiouni (ed), Post-Conﬂict Justice (2002) 26.

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this section brieﬂy revisits some of their key features, in order to explore their inﬂuence on the creation of subsequent tribunals. A

Institutional Design

Created by Resolutions of the UN Security Council, the primary aim of the ICTY and the ICTR is the prosecution of persons ‘responsible for serious violations of international humanitarian law’, on the basis that such prosecutions ‘will contribute to ensuring that such violations are halted and eﬀectively redressed’. A further aim of the Tribunals is to ‘contribute to the process of national reconciliation and to the restoration and maintenance of peace.’ Funded by assessed contributions from UN Member States, the Tribunals have proved enormously expensive to run: the budget of each Tribunal for 2004–5 was over us$200 million. Completion strategies called for by the Security Council should see the work of both Tribunals completed by 2010. The Tribunals are governed by their respective Statutes, which were annexed to their founding Security Council Resolutions. The applicable law for both Tribunals is international law and both tribunals have primacy over national courts. The Tribunals are physically situated outside the countries over which they have jurisdiction and are staﬀed almost exclusively by international professionals. The distance of the Tribunals from the scenes of the atrocities and the appointment of non-nationals as judges, lawyers and investigators, stemmed from the belief that this remoteness would enhance the impartiality and credibility of the Tribunal proceedings. Indeed, one factor in the creation of the 4

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The ICTY was established by SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993, and the ICTR was established by SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994. SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993, Preamble; SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994, Preamble. See SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994, Preamble. This commitment is not contained in SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993, but it is part of the ICTY’s general statement of objectives: see, eg, . Information on the ICTY budget is available on the ICTY website: . Information on the ICTR budget is available on the ICTR website: . See SC Res 1503 (2003), UN Doc S/RES/1503 (2003), 28 August 2003. Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to SC Res 827 (1993), UN Doc S/RES/827 (1993) (adopted 25 May 1993, as amended 19 May 2003) (‘Statute of the ICTY’); Statute of the International Criminal Tribunal for Rwanda, annexed to SC Res 955 (1994), UN Doc S/RES/955 (1994) (adopted 8 November 1994, as amended 27 October 2003) (‘Statute of the ICTR’). See, eg, discussion in Jose Alvarez, ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24 Yale Journal of International Law 365, 371-8.

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Tribunals was that they should do justice for the international community as well as for the victims. The establishment of both Tribunals was seen as evidence that the international community was ﬁnally serious about enforcing fundamental human rights standards, by punishing individuals, most particularly senior state oﬃcials, responsible for their violation. The ICTY and ICTR were viewed as credible means for achieving that end because they were designed to avoid the ﬂaws associated with the Nuremberg Trial. From the outset, therefore, the ICTY and the ICTR could be characterised as ‘new and improved’ versions of Nuremberg, and as signalling the start of the international community’s renewed commitment to human rights, the rule of law and the avoidance of impunity. B

How Have the Tribunals Functioned?

With such high expectations, it is not surprising that the Tribunals have failed to live up to their promise. In terms of their ability to provide a degree of justice, both for the international community and for victims, the Tribunals have established some accountability for individual perpetrators, in accordance with international standards of due process. Both Tribunals have had reasonable success in pursuing high-level oﬃcials, although the ICTR has a better record in this regard. Some of the ICTR prosecutions include the former Prime Minister and members of his Government, high-ranking military oﬃcers, political leaders and administrative oﬃcials. The ICTR’s relative success in this area can be seen as a direct result of the criticism levelled at the ICTY for its lack of a clear prosecutorial strategy in relation to indictments and for its apparent focus on low-level perpetrators, at least initially. Both Tribunals have contributed to the development of international law, in particular international criminal law and international humanitarian law, through their jurisprudence. These limited successes, however, have been accompanied by widespread and often scathing criticism, most commonly about the Tribunals’ lack of legitimacy 11

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See, eg, Statement by Delegate of France on the Adoption of SC Res 808 (1993), UN Doc S/RES/808 (1993), 22 February 1993, extracted in Michael P. Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’ (2000) 49 DePaul Law Review 925, 928; Statement of Diane Orentlicher in M. Cherif Bassiouni et al, ‘War Crimes Tribunals: The Record and Prospects: Conference Convocation’ (1998) 13 American University International Law Review 1383, 1384. See, eg, Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Legacy of Nuremberg (2nd ed, 2001). A list of the individuals prosecuted or indicted by the ICTR is available on the ICTR website. See International Criminal Tribunal for Rwanda, ‘Fact Sheet No 1’, . Nizich, above n 2, 356-9.

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and their failure to contribute to processes of reconciliation within the former Yugoslavia and Rwanda. This failure is argued to have a number of causes, including physical location, unfamiliar international procedures, lack of capacity-building and lack of outreach. The decision to locate the ICTY in the Netherlands and the ICTR in Tanzania was made in an eﬀort to ensure security for the participants in the trials, including witnesses, judges and prosecutors, and to guarantee the Tribunals’ independence. The physical distance has, however, also resulted in a deep lack of connection between the Tribunals and the domestic context of their cases. This in turn has meant that there has been misunderstanding about the purpose and procedures of the Tribunals among their domestic constituencies, creating fundamental credibility problems for the Tribunals. As one commentator remarked in relation to the ICTY, ‘the ICTY, because of its seat in The Hague, has been regarded as more than just inaccessible, it has failed to establish the sustainable connection to the local population necessary for successful judicial reconstruction and transitional justice in the region’. Both the ICTY and the ICTR draw their applicable law from their internationally-drafted Statutes and from international law. This has meant that the Rwandan and former Yugoslav populations have generally not been familiar with the laws, languages and procedures of the Tribunals, compounding a lack of understanding and misinformation. The foreignness of the adversarial system to Rwandans, for example, and its conﬂict with traditional community-based means of dispute resolution, has added to the perception of that the Tribunal is removed from everyday Rwandan life. The focus of both Tribunals on recruiting international staﬀ, and their failure to include nationals from Rwanda and the former Yugoslavia in any real way, has resulted in the Tribunals making only a minimal contribution to capacitybuilding within the national legal systems. Local judges and lawyers have been given no training in investigating and conducting war crimes trials, nor have the Tribunals provided much assistance in developing the judicial infrastructure in the diﬀerent regions. For many observers of the international Tribunals, the lack of capacity-building has been especially galling given the money that has 15

16 17 18 19

Harvey Weinstein and Eric Stover, ‘Introduction: Conﬂict, Justice and Reclamation’ in Harvey Weinstein and Eric Stover (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004) 1; Laura A. Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295. Danielle Tarin, ‘Prosecuting Saddam and Bungling Transitional Justice in Iraq’ (2005) 45 Virginia Journal of International Law 467, 513. Ibid 512. Ibid 513. See David Tolbert, ‘The International Criminal Tribunal for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings’ (2002) 26 Fletcher Forum for World Aﬀairs 5; Varda Hussain, ‘Sustaining Judicial Rescues: The Role of Outreach

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been spent on the Tribunals. Indeed, on one view, the money spent on the ICTR would have been better spent rebuilding the Rwandan judicial system, and assisting its domestic prosecutions of the thousands of Rwandans who remained in Rwandan custody, accused of participation in the genocide. The outreach of the Tribunals, especially initially, was poor. There was little attempt to explain to the relevant communities the role and methods of the Tribunals, which hindered the development of understanding about them within the local population. While both Tribunals eventually established outreach programs, these were conducted on a largely ad hoc basis and did not eﬀectively convey information about the work of the Tribunals. In particular, the time, resources and eﬀort required to conduct war crimes investigations and prosecutions was not successfully communicated, and the lengthy delays in achieving justice for the victims was not eﬀectively explained. C

Lessons of the International Tribunals

The experiences of the international Tribunals raise questions about the purpose of, and the intended audience for, their quest for accountability in post-conﬂict situations. If the Tribunals were directed primarily at the international community, that community has generally been satisﬁed that justice is being served through prosecutions that have maintained the highest standards of fairness and due process. If, however, the audience for these accountability mechanisms is the victims of the atrocities, then it is clear that the international Tribunals are not models designed to meet that constituency’s needs. The lack of physical proximity, the foreignness of the proceedings and of the decision-makers, and the failure to communicate eﬀectively within the local communities, have dramatically undermined the credibility of the ICTY and the ICTR within their respective aﬀected populations. In the case of the ICTY, the death of former President Slobodan Milošević before the completion of his trial has compounded local frustrations with the Tribunal. From the perspective of the victims, interna-

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and Capacity-Building Eﬀorts in War Crimes Tribunals’ (2005) 45 Virginia Journal of International Law 547. For a description of the Rwandan domestic genocide trials, see William A. Schabas, ‘Genocide Trials and Gacaca Courts’ (2005) 3 Journal of International Criminal Justice 879. See also Lars Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice’ (2006) 79 Temple Law Review 1. Tolbert, above n 20; Victor Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Program’ (2005) 3 Journal of International Criminal Justice 950. Ibid. See, eg, Tolbert, above n 19; and Bassiouni, above n 3. See, eg, ABC Television, ‘Controversy Continues after Milosevic’s Death’, The 7:30 Report, 13 March 2006 ; ‘Milosevic Dies before Trial Verdict’ Reuters 12 March 2006; Gregory Crouch and

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tional reassurances of a commitment to due process have not made up for the shortcomings of the international Tribunals. It is unlikely that there will be any future international tribunals along the lines of the ICTY and the ICTR. Antonio Cassese, indeed, has argued that the practice of setting up such tribunals should be ‘abandoned’. The creation of the ICC negates to a large degree the need for such ad hoc tribunals, and the international community is, in any event, reluctant to create future similar tribunals, not least because of their prohibitive cost. The examples of both the ICTY and the ICTR remain important, however, in helping to construct other judicial responses to mass atrocity. II ‘Mixed’ or ‘Internationalised’ Tribunals As a consequence of the many diﬃculties that beset the international Tribunals, a diﬀerent model of tribunal has developed, one that has become known as the ‘mixed’, ‘hybrid’ or ‘internationalised’ model of tribunal. Under this model, both the institutional apparatus of the court or tribunal and its applicable law is a blend of the international and the national. In theory, the mixed model should address the shortcomings of the international model in a number of ways. First, a mixed tribunal should be less costly to run than a fully international tribunal. The varied ways in which mixed tribunals have been funded indicate that this model oﬀers a less expensive means of establishing post-conﬂict justice mechanisms. It is, as such, likely to attract greater international support than the fully international model. Second, the location of a mixed tribunal in the territory of the atrocities and the blending of international and domestic judges and applicable law are designed to address some of the legitimacy problems experienced by the international tribunals. Not only should it be easier for an aﬀected population to see justice ‘in action’ when the trials are locally-based, the inclusion of local judges and local law in the proceedings should contribute to a sense of national ownership over the process. At the same time, maintaining a role for international judges and international law should help to preserve both the reality and the appearance of impartiality and objectivity. This in turn should help to minimise perceptions, whether substantiated or not, of bias or vengeance that

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Marlise Simons, ‘Slobodan Milosevic Found Dead’, The New York Times (New York), 12 March 2006. See, eg, Alvarez, above n 10, 385-436. Antonio Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight against International Criminality’ in Cesare R Romano, Andre Nollkaemper and Jann K. Kleﬀner, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (2004) 12. See, eg, Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541. See generally Cassese, above n 26, 3.

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might arise from a purely domestic process. Capacity-building is also potentially enhanced by a mixed process, where national staﬀ can work alongside and be trained by international staﬀ, contributing to the ongoing rebuilding of the local justice infrastructure. The practice of the mixed tribunals that have been established to date reveals a diverse set of experiences. The East Timor Special Panels, the Special Court for Sierra Leone, the ‘Regulation 64’ Courts in Kosovo and the Cambodian Extraordinary Chambers share the characteristic of being ‘mixed’; but there are a range of diﬀerences between them in relation to their manner of creation, jurisdiction, composition and structure. I focus here on two of these tribunals, the East Timor Special Panels and the Special Court for Sierra Leone, because they provide contrasting examples of the way in which tribunals of this kind can work. A The East Timor Special Panels The United Nations Transitional Administration in East Timor (UNTAET) was established by the Security Council in 1999 to restore security in East Timor in the aftermath of the violence that followed the UN-sponsored East Timorese independence referendum. UNTAET’s authority included ‘overall responsibility for the administration of East Timor’ and it was ‘empowered to exercise all legislative and executive authority, including the administration of justice’. As part of its exercise of authority, and in line with the Security Council’s concern that those responsible for the ‘widespread and ﬂagrant violations of international humanitarian law and human rights law’ be individually accountable, UNTAET set up the Special Panels for East Timor (Special Panels) and the Serious Crimes Unit (SCU), which were responsible for prosecutions. 1

Institutional Design

Unlike the ICTY and ICTR, the Special Panels and SCU were not a direct creation of the Security Council. The Special Panels and the SCU were funded through assessed and voluntary contributions made to the UN Mission in East Timor. The Special Panels were established under the auspices of the District 29

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For a review of mixed tribunals, see Carsten Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425. SC Res 1272 (1999), UN Doc S/RES/1272 (1999), 25 October 1999. Ibid para 1. Ibid Preamble. Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, UN Doc

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Court of Dili and the Dili Appeals Court and were given exclusive jurisdiction over serious criminal oﬀences, including genocide, war crimes, crimes against humanity and torture. The Special Panels were administered out of the District and Appeals Courts, rather than by a separate Registry. They were thus a part, albeit a special part, of the local judicial system. The Panels were vested with universal jurisdiction with respect to most of the serious criminal oﬀences; their jurisdiction was limited temporally in relation only to murder and sexual oﬀences. Despite this broad power, the SCU investigations focussed on the events of 1999, rather than on events during the preceding years of Indonesian occupation. The law applied by the Panels was a combination of East Timorese law and international law, including applicable treaties and the law of armed conﬂict. This eﬀectively meant that international law standards applied in relation to genocide, war crimes, crimes against humanity and torture, while East Timorese law

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S/2005/458, 26 May 2005, 29 (‘Report of the Commission of Experts’). Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Oﬀences, UNTAET/REG/2000/15, 6 June 2000, s 1 (‘UNTAET Regulation 2000/15’). See Daphna Shraga, ‘The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions’ in Cesare R. Romano, Andre Nollkaemper and Jann K Kleﬀner, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (2004) 33. UNTAET Regulation 2000/15, above n 34, s 2. Report of the Commission of Experts, above n 33, 18. UNTAET Regulation 2000/15, above n 34, s 3. See, eg, Charter of the International Military Tribunal, art 6, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, signed in London on 8 August 1945, 2 UNTS 279; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘Additional Protocol II’); Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’); Convention against Torture and

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standards (which were the standards of Indonesian penal law) applied in relation to murder and sexual oﬀences. The Panels were composed of a combination of two international judges and one East Timorese judge and, in cases of particular importance a panel of ﬁve judges could be established, consisting of three international and two East Timorese judges. The SCU staﬀ members were overwhelmingly international, although a number of Timorese were employed and trained by SCU staﬀ. 2

How Did the Panels and SCU Function?

The work of the Special Panels and SCU ended on 30 June 2005. In the four years of its hearings, the Panels conducted 55 trials, mostly of low-level defendants. Of the defendants, 84 were convicted and three were acquitted. The mixed tribunal model as it applied in East Timor had some successes from both a justice and reconciliation perspective, but ultimately, the process seemed to create more problems than they resolved. East Timor, after the 1999 referendum, was a judicial vacuum, which required the almost complete reconstruction of the local judiciary and other elements of a justice infrastructure. Despite this, initial control of the judiciary and jurisdiction for ordinary crimes was given directly to the East Timorese by UNTAET, partly in response to the criticism that UN state-building needed to incorporate much greater local autonomy and participation. Ultimately, however, that decision meant that the legal institution-building within East Timor was poor: most of the newly appointed judges lacked criminal or practical experience and were not equipped with the training or resources to carry out their work eﬀectively. The absence of experience was compounded by communication diﬃculties between local and international staﬀ and diﬃculties of access to relevant legal materials in all of the

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Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘Convention against Torture’). UNTAET Regulation 2000/15, above n 34, s 22. Report of the Commissi0n of Experts, above n 33, 19. In accordance with SC Res 1543 (2004), UN Doc S/RES/1543 (2004), 14 May 2004, the mandate of the UN Mission of Support in East Timor (UNMISET), and hence the mandate of the Special Panels and SCU, ended on 20 May 2005. A few staﬀ were retained until 30 June 2005 to ensure a proper end to proceedings. Report of the Commissi0n of Experts, above n 33, 32. See, eg, discussion in Report of the Commissi0n of Experts, above n 33, 20-22. See, eg, Amnesty International, ‘East Timor: Justice Past, Present and Future’, ASA 57/001/2001, 27 July 2001 (‘East Timor: Justice Past, Present and Future’). Suzanne Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor’ (2003) 16 Harvard Human Rights Journal 245, 254. East Timor: Justice Past, Present and Future, above n 45, 4.2.

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oﬃcial languages of the Special Panels: English, Portuguese, Bahasa Indonesia and Tetum. The presence of a majority of international judges on the Special Panels also gave rise to a perception that the Panels were primarily a foreign entity imposing their will on a national system. This perception was fuelled by the minimal local participation in both the creation and the conduct of the Panels and the SCU. Capacity-building was not a priority during the creation of the Special Panels, and no systematic method of training and assistance was put in place. Even where local East Timorese shared responsibility for the work, they often felt sidelined by the process. In East Timor, therefore, the potential beneﬁts of capacity-building were undermined by the absence of an organised and co-ordinated approach to training. The hopes that a mixed tribunal model would oﬀer more in terms of capacity-building were not met by the Panels process. Indeed, the Report of the UN Commissi0n of Experts concluded in 2005: if the international component were removed from the Timor-Leste judicial process, it would be impractical to expect that national institutions would have the capacity, in the foreseeable future, to undertake the investigation and prosecution of serious crimes.

The SCU prosecutors experienced problems in their capacity to carry out their work, including in activities such as gathering evidence, locating witnesses and securing testimony. It therefore became diﬃcult to conduct prosecutions while maintaining international standards of fairness and due process. The problem was compounded by the SCU’s inability to require the assistance of third states in extraditing accused individuals or providing access to evidence. The ICTY and ICTR, created under Chapter VII of the UN Charter, possess an authority to require the co-operation of other states that has not been replicated in any subsequent tribunal or in the ICC. The East Timor Panels, and other subsequent mixed tribunals, have thus had limited success in securing the extradition of high-ranking oﬃcials outside their territory. Instead most of those oﬃcials have either escaped prosecution or been subject to trials with questionable legiti48 49

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Ibid 9.2. See also Report of the Commission of Experts, above n 33, 33-4. See Erica Harper, ‘Delivering Justice in the Wake of Mass Violence: New Approaches to Transitional Justice’ (2005) 10 Journal of Conﬂict and Security Law 149; Ramesh Thakur, ‘East Timor: When Peace and Justice Collide’, International Herald Tribune (Neuilly Cedex, France), 31 August 2005. Report of the Commission of Experts, above n 33, 32. See also Katzenstein, above n 46, 265-8. Katzenstein, above n 47, 265-266. Report of the Commission of Experts, above n 33, 32. Harper, above n 49, 163-6.

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macy. Some high-ranking Indonesian oﬃcials, for example, have had the claims against them heard by the much criticised Ad Hoc Human Rights Court for Timor Leste. The diﬃculties experienced by the SCU and the importance of due process to the Panel’s procedures were not well-understood within the local population, amongst which there was dissatisfaction at the failure to prosecute those most responsible for the atrocities. The lack of understanding was often exacerbated by the poor administration of the Panels and the SCU. There was, for example, inadequate provision of translation facilities within the Panel’s process. This undermined the advantages of holding the trials within East Timor by making it diﬃcult for the participants and the public to follow the proceedings. The infrastructure failings and the absence of proper outreach to the local population led to a disjuncture between what that population expected of the Panels process and how it operated in practice. Consequently the Panels were perceived as ineﬀective and as lacking legitimacy. A further problem arose from the manner in which the Panels, the SCU and the defence lawyers were funded. The UN funding for the Panels and the SCU has been described as ‘inadequate and irregular’ and it severely hampered their ability to function eﬀectively. Even so, the Panels and the SCU were in a better position than the defence lawyers, who were poorly supported by the UN, and were provided primarily by East Timor. The disparity in funding between prosecution and defence meant that the East Timorese defence lawyers lacked experience, administrative support and proper resources. This compromised proper standards of due process and made it arguable that many defendants lacked eﬀective counsel. The culmination of all of these issues is that the Special Panels process is not generally regarded as a success. It was ineﬃcient, it failed to adhere to international standards of due process, and it minimised local participation. B The Sierra Leone Special Court The Special Court for Sierra Leone (Special Court), while also a mixed model of tribunal, was created and functions diﬀerently from the East Timor Special

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See, eg, Report of the Commission of Experts, above n 33, 38-80. Harper, above n 50, 159-64. See, eg, Report of the Commission of Experts, above n 33, 33-4. Katzenstein, above n 46, 260-2. Harper, above n 49, 164. See also Hussain, above n 19, 567-9. Report of the Commission of Experts, above n 33, 28. See also Katzenstein, above n 46, 257-64. 60 Katzenstein, above n 46, 262-4. 61 Ibid; East Timor: Justice Past, Present and Future, above n 45, 9.2.

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Panels. At this stage of its work, the Special Court seems a more successful example of a mixed war crimes tribunal. 1

Institutional Design

The Special Court was established by an Agreement between the UN and the Government of Sierra Leone. This Agreement was requested by the Security Council in order to ensure individual accountability for serious violations of international humanitarian law and to contribute to the process of reconciliation in Sierra Leone. The Agreement was signed on 16 January 2002 and the Court began work in July that year. Under the Agreement, a Special Court is established in Sierra Leone with the aim of prosecuting persons ‘who bear the greatest responsibility’ for violations of international humanitarian law in Sierra Leone after 30 November 1996. Unlike the East Timor Special Panels, therefore, which were part of the local justice system, the Special Court stands outside the normal Sierra Leone legal system. The judges of the Court are a combination of local and international persons, but the hybrid nature of the judiciary is not set out in nationality terms. Rather, the Sierra Leone Government and the UN are empowered to appoint a speciﬁed number of judges to the Trial and Appeals Chambers. The Prosecutor and Registrar are appointed by the UN, in consultation with the Government of Sierra Leone, and the Prosecutor is required to appoint a Sierra Leonean Deputy Prosecutor. The functions and competence of the Court are set out in its Statute, which was annexed to the Agreement. The Statute reiterates that the role of the Special Court is to pursue those who bear the greatest responsibility for the atrocities committed within Sierra Leone, under standards of both international law and Sierra Leonean law. International crimes over which the Court has jurisdiction include crimes against humanity such as murder, extermination, torture and rape; violations of Common Article 3 of the Geneva Conventions; and other serious violations of international humanitarian law. Domestic crimes over which the 62 63

64 65 66 67 68 69

SC Res 1315 (2000), UN Doc S/RES/1315 (2000), 14 August 2000. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed 16 January 2002, reproduced in Appendix II to Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, UN Doc S/2002/246, 8 March 2002, Annex (‘SCSL Agreement’). Ibid art 1. Ibid art 2. Ibid arts 3, 4. Statute of the Special Court for Sierra Leone, annexed to SCSL Agreement, above n 63 (‘Statute of the Special Court for Sierra Leone’). Ibid art 1. Ibid arts 2, 3, 4.

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Court has jurisdiction include oﬀences relating to the abuse of girls and wanton destruction of property under the relevant Sierra Leonean law. The Special Court has primacy over national courts in relation to areas within the Special Court’s competence. A 2004 decision of the Special Court’s Appeals Chamber conﬁrmed that amnesties granted under Sierra Leone’s Lomé Peace Agreement did not prevent the prosecution of serious crimes within the Court’s jurisdiction. The Special Court is funded by voluntary contributions from the international community. This arrangement resulted in funding for the Court until the end of 2004, at which time the Secretary-General appropriated us$20 million from UN resources to supplement the Court’s ﬁnances. As of 1 January 2006, the ﬁnancing of the Court reverted to voluntary contributions and by 30 September 2005, only us$10 million of the estimated us$25 million needed to fund the Court’s work had been secured. The Court has since secured the required funding, but its ﬁnancial position beyond June 2007 remains unclear. 2 How Has the Court Functioned?

To date, the Prosecutor has indicted 13 individuals in relation to the Sierra Leonean atrocities, over whom the Court has secured custody of 11. The Court has had reasonable success so far in its pursuit of those most responsible for violations of international humanitarian law within Sierra Leone. While two of the most notorious leaders have died, the Prosecutor has indicted persons from all sides of the conﬂict and the capture and prosecution of Charles Taylor, former President of Liberia, is a notable success in this regard. Lacking a Security Council mandate requiring third state co-operation with the Court, political pressure ﬁnally secured the agreement of the Nigerian Government to transfer

70 71

72 73 74

75

76

Ibid art 5. Prosecutor v Morris Kallon and Brima Bazzy Kamara (Appeals Decision on Challenge to Jurisdiction: Lomé Accord Amnesty), Case Nos SCSL-04-15, SCSL-04-16, 13 March 2004. SCSL Agreement, above n 63, art 6. United Nations, ‘$10 Million for Sierra Leone Special Court, Far Short’ (Press Release, 30 September 2005). For detail on voluntary contributions to the Court, see International Centre for Transitional Justice, ‘The Special Court for Sierra Leone Under Scrutiny’, Case Study Series, March 2006, 29-32 (‘SCSL Under Scrutiny’). Two of the indictments were dropped following the deaths of the indictees, see International Centre for Transitional Justice, ‘The Special Court for Sierra Leone: The First Eighteen Months’, Case Study Series, March 2004, 4 (‘SCSL: The First Eighteen Months’). Ibid.

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Taylor to the Special Court. Trials of the accused in custody, other than Taylor, began in 2004 and are expected to be completed by 2007. The Prosecutor’s strategy of indicting persons from the ‘victorious’ side of the conﬂict as well as from the ‘losing’ side, most notably Sam Hinga Norman who was serving as Interior Minister at the time of his arrest, has helped to minimise a perception that the Court is administering victors’ justice. At the same time, the explicit focus of the Court on those who bear greatest responsibility sets a deﬁned strategy for the Prosecutor and goes some way to managing community expectations about the role of the Court. While there has been some dissatisfaction about this particular limitation and its interpretation by the Prosecutor, the Court in general enjoys support among the local population. The location of the Court within Sierra Leone has created some security and political issues. The trial of Charles Taylor has been transferred to The Hague, because of fears that his presence would threaten the peace and stability of the region. The arraignment and initial court appearances of Sam Hinga Norman were held in a closed session because of security concerns, raising questions of fairness and due process. Since then, however, the appearances of two other former oﬃcials of the Government have taken place in public, and the joint trial of all three defendants in the Norman case was public. The Court’s presence in Sierra Leone has also made it vulnerable to domestic political manipulation. One of the leading defence lawyers, for example, was a long-time political rival of Sam Hinga Norman. At the same time, the physical proximity of the Court to Sierra Leoneans has enhanced a feeling of local ownership over the proceedings. The daily events of the trials are the subject of considerable local and media discussion, for example. There have, in addition, been advantages in terms of both capacity-building and outreach. By January 2006, over half of the staﬀ of the Special Court were Sierra Leone nationals. Although many key positions are held by international staﬀ, 77 78 79

80

81 82 83 84 85

Ibid, Epilogue. For general information on the Special Court and its trials, see the website of the Special Court: . See, eg, Eric Pape, ‘Cleaning House’ (Sept/Oct 2003) Legal Aﬀairs 69. Sam Hinga Norman died in February 2007, following completion of the trial, but pending a verdict in his case. Douglas Farah, ‘Sierra Leone Court May Oﬀer Model for War Crimes Cases’, Washington Post (Washington), 15 April 2003; James Cockayne, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2005) 28 Fordham International Law Journal 616, 639-45. SC Res 1688 (2006), UN Doc S/RES/1688 (2006), 16 June 2006. SCSL: The First Eighteen Months, above n 75, 3, 6. Ibid 6. Cockayne, above n 80, 649. Ibid 644.

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Sierra Leoneans are included in all aspects of the Court’s work, which has enabled it to carry out its mandate in a domestically sensitive manner. The Special Court has also adopted a systematic, side-by-side working method in those areas where international staﬀ are training local staﬀ, which has had some success in contributing to capacity-building within Sierra Leone. In terms of outreach, the Special Court’s ﬁrst Prosecutor, David Crane, put in place an outreach program from the beginning of the Court’s operation. This program included a series of ‘town hall’ meetings across the country to explain the Court’s work and to receive feedback. The Special Court Registry established a formal Outreach Unit in 2003, whose work has included outreach to the military and a booklet designed to explain the Court to children. The website of the Special Court is also reasonably comprehensive, and a considerable amount of information about the proceedings before the Court can be found there. The commitment to outreach from early in the Court’s work has resulted in a high level of awareness and understanding of the Court within the local population. The voluntary nature of the Special Court’s funding has given rise to some particular challenges. For example, the initial priority for the Court was to fund the Oﬃce of the Prosecutor, which left the Registry in the peculiar position of having several key positions unﬁlled when the time came to process detainees. As of 30 January 2007, the Court had secured suﬃcient funding to proceed to opening statements in the Charles Taylor trial, scheduled for 4 June 2007, and the Prosecutor was conﬁdent of achieving the funding needs for the remainder of 2007, but not beyond. The uncertainty of continued funding makes advanced planning diﬃcult. Indeed, the precariousness of the Court’s ﬁnancial situation is one of the greatest threats to the continued credibility of its work. C Lessons of the Mixed Tribunal The development of the ‘mixed’ tribunal model demonstrates a shift in the international community’s attitudes towards transitional justice. The focus of the 86 87

SCSL: The First Eighteen Months, above n 75, 9. David M. Gersh, ‘Poor Judgment: Why the Iraqi Special Tribunal Is the Wrong Mechanism for Trying Saddam Hussein on Charges of Genocide, Human Rights Abuses and Other Violations of International Law’ (2004) 33 Georgia Journal of International and Comparative Law 273, 286. See also Hussain, above n 19, 569-72. 88 For detailed description of the outreach program, see SCSL Under Scrutiny, above n 74, 35-9. 89 See SCSL: The First Eighteen Months, above n 75, 8. 90 Ibid 9. 91 See . 92 SCSL: The First Eighteen Months, above n 75, 10. 93 Press Conference by Prosecutor of Special Court for Sierra Leone, UN Department of Public Information, 30 January 2007.

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mixed tribunal on connecting with the local populations and the emphasis in its institutional design on establishing legitimacy within that population is a move away from seeing the international community as a primary beneﬁciary of the prosecution of war crimes and crimes against humanity. The international community still beneﬁts from mixed tribunal prosecutions, including through the avoidance of impunity and the continued domestic enforcement of international human rights law, but it is no longer the main audience. Rather, the populations aﬀected by the atrocities have assumed a central role and much more attention is paid to constructing judicial methods that might make a contribution to longterm national reconciliation. The lessons of the ICTY and the ICTR demonstrate that creating a sense of national ownership over the judicial process and communicating eﬀectively with the local population are important parts of making such a contribution. As the case studies of the East Timor Special Panels and the Sierra Leone Special Court show, however, simply allowing for the inclusion of local laws, procedures and people in the process is not enough. Mixed tribunals need to make sustained and systematic eﬀorts at national inclusion. The manner in which the tribunal is created can be important. Establishing the Special Court by agreement between the Sierra Leone Government and the UN, for example, gave it an initial legitimacy that the Special Panels, set up by UN decree, lacked. Funding of the mixed tribunals is also crucial, both in how it is provided and how it is used. The failure of the UN or other members of the international community to provide eﬀective support for the East Timorese defence lawyers, for example, seriously undermined the credibility of the judicial proceedings. The mixed tribunal model retains ﬂaws, but it does potentially allow for national participation in the manner envisaged by the Secretary-General’s Report. At the same time, it enables the continued involvement of international oﬃcials, which brings expertise in war crimes trials and can help to ensure a degree of impartiality within the proceedings. In terms of providing an eﬀective judicial model, therefore, the mixed tribunal oﬀers a number of advantages. III

National Tribunals

National tribunals, such as the Ad Hoc Human Rights Court in Jakarta, are a third judicial option for addressing the aftermath of mass atrocity. Indeed, despite the range of activities instituted by the international community in the name of post-conﬂict justice, national tribunals ‘remain the cornerstones of the prosecution of international crimes’. The centrality of national mechanisms is emphasised by the use of the principle of complementarity to limit the ICC’s jurisdiction. National courts potentially possess many of the advantages asso94 95

Report of the Secretary-General, above n 1, Summary. Bassiouni, above n 3, 33.

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ciated with ‘mixed’ tribunals in regards to legitimacy and credibility. They are located in the territory in which the atrocities occurred; the applicable laws, language and procedures are familiar to the local population; public access to the tribunal proceedings is easier; and nationals conduct the trials which would naturally make them sensitive to local political and cultural history. National tribunals can play an important role, in conjunction with international or ‘mixed’ mechanisms, in ensuring accountability for ‘lower-level’ perpetrators of human rights violations, or those who are not subject to international or mixed procedures. In Rwanda, for example, national courts supplement the work of the ICTR with domestic prosecutions for genocide and through the gacaca. The gacaca is a network of local tribunals presided over by elected Rwandan nationals, designed to address the cases of the over 80 000 individuals accused of genocide-related crimes who have been kept in custody for nearly 10 years without trial. While the gacaca has been the subject of criticism, there is no question that some additional form of national process is necessary to prosecute the thousands of genocide suspects not dealt with by the ICTR or national judicial proceedings. The drawbacks to using purely national mechanisms stem from the potential for political interference, vengeance and bias, both real and perceived, that is raised by staging trials in the territory where the atrocities occurred. Relying on national mechanisms is also unrealistic in cases where the human, physical and logistical infrastructure of a justice system has been destroyed, as was the case for example in East Timor. Some of the advantages and disadvantages of national mechanisms are illustrated in the following short case study of the Iraqi High Tribunal (‘Iraqi Tribunal’), formerly known as the Iraqi Special Tribunal (‘Special Tribunal’). A The Iraqi High Tribunal 1

Institutional Design

The Iraqi Tribunal was established by the Iraqi Transitional Government on 18 October 2005. Its founding Statute is a revised version of the Statute that had created the Special Tribunal, under the authority of the Coalition Provisional

96 97 98

See William A. Schabas, ‘The Rwanda Case: Sometimes It’s Impossible’ in M. Cherif Bassiouni (ed), Post-Conﬂict Justice (2002) 499, 512. See, eg, Jacques Fierens, ‘Gacaca Courts: Between Fantasy and Reality’ (2005) 3 Journal of International Criminal Justice 896. See International Centre for Transitional Justice, ‘Brieﬁng Paper: Creation and First Trials of the Supreme Iraqi Criminal Tribunal’ (2005) 2 (‘Creation and First Trials of Iraqi Tribunal’).

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Authority in Iraq. The Special Tribunal had eﬀectively been a creation of the United States, the occupying power in Iraq in 2003. There was a question over the legal capacity of an occupying power to establish such a tribunal and the Special Tribunal had been dogged by a perception that it was intended to mete out ‘victors’ justice’. The Statute of the Iraqi Tribunal, on the other hand, was promulgated by the elected members of the Iraqi National Assembly. While this has not spared the Iraqi Tribunal from being subject to political interference, it does make it appear to be the creation of primarily national processes. Surveys of the local Iraqi population carried out in 2003 had revealed a strong preference amongst the Iraqi population for the criminal trials of the leaders of the Ba’athist regime to be carried out in Iraq, under Iraqi-controlled processes. The legitimacy of the Iraqi Tribunal is therefore enhanced to the extent that it is, and is seen to be, a predominantly Iraqi process. The Statute of the Iraqi Tribunal contains a number of diﬀerences from the Statute of the Special Tribunal, most of which are designed to remove international inﬂuence from the Iraqi Tribunal. The Special Tribunal, for example, had been envisaged along the lines of the Sierra Leone Special Court, sitting outside the domestic legal system. The Iraqi Tribunal, on the other hand, is an integrated part of the domestic legal system. The rules of procedure and evidence used by the Iraqi Tribunal, which were originally drafted to resemble those of other international tribunals, now align far more closely with the provisions of the Iraqi Code of Criminal Procedure of 1971. As a consequence, a number of procedural guarantees that had been included in the Statute of the Special Tribunal have been removed, raising concerns amongst international observers about respect for fairness and due process in the Iraqi Tribunal proceedings. The jurisdiction of Iraqi Tribunal is limited by subject-matter to genocide, crimes against humanity and war crimes, and to some ‘political’ oﬀences under Iraqi law such as waste of national resources and attempts to manipulate the judiciary. The deﬁnitions of the international crimes, as incorporated into Iraqi domestic law, reﬂect the deﬁnitions in international law. The Iraqi Tribunal’s 99 100 101 102 103

104 105

Delegation of Authority regarding an Iraqi Special Tribunal, Coalition Provisional Authority Order No 48, 10 December 2003 See Creation and First Trials of Iraqi Tribunal, above n 98, 2, 7. Ibid 7. Ibid 8. Ibid 9-10. See also Human Rights Watch, Judging Dujail: The First Trial before the Iraqi High Tribunal, 20 November 2006 (‘Judging Dujail’); Human Rights Watch, ‘The Former Iraqi Government on Trial’, Brieﬁng Paper, 16 October 2005 (‘Former Iraqi Government on Trial’); Richard Dicker, ‘Give Iraq Justice, Not Vengeance’, International Herald Tribune (Neuilly Cedex, France), 18 October 2005. Statute of the Iraqi High Tribunal, Law No 10 of 2005, Oﬃcial Gazette of the Republic of Iraq, No 40006, 18 November 2005, arts 10-14 (‘IHT Statute’). Ibid arts 11-13.

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temporal jurisdiction is limited to crimes committed from 17 July 1968 − 1 May 2003. Non-Iraqi nationals cannot be subject to the Tribunal, even if they are accused of oﬀences on Iraqi territory, which eﬀectively excludes any members of occupying forces from the purview of the Tribunal. Judges, prosecutors and staﬀ of the Tribunal and the primary defence counsel are required to be nationals of Iraq. This contrasts with the Statute of the Special Tribunal which had allowed for the appointment of international judges. Non-Iraqis can be appointed as advisers to judges and prosecutors in the ﬁeld of international law, but no such advisers had been appointed as of October 2005. The failure to appoint any international advisers has meant that the predominant source of international assistance for the Iraqi Tribunal has come from the Regime Crimes Liaison Oﬃce (RCLO), based in the United States’ Baghdad Embassy. Indeed, it is notable that while the Iraqi annual budget for the Tribunal is US$15 million, the budget for the RCLO’s work in supporting proceedings before the Tribunal is US$128 million. This has fed a perception that, despite its creation by the National Assembly, the Iraqi Tribunal remains under the inﬂuence of the United States. 2

How Is the Tribunal Functioning?

The Iraqi Tribunal has suﬀered a range of setbacks that have seriously compromised its legitimacy and impartiality, real and perceived, in the eyes of both the Iraqi population and international observers. As such, it illustrates some of the pitfalls of using predominantly national legal systems to enforce post-conﬂict justice. The Iraqi Tribunal has, from its inception as the Special Tribunal, been especially vulnerable to political inﬂuence. The hiring and ﬁring of multiple Tribunal administrators, for example, has reﬂected successive executive government attempts to install an administrator loyal to the Iraqi leadership, rather than to the Tribunal. Other attempts have been made to dismiss or appoint oﬃcials or judges of the Tribunal, in particular through the de-Ba’athiﬁcation procedure. 106 107 108 109 110

Ibid art 1.2. Ibid. See also Creation and First Trials of Iraqi Tribunal, above n 98, 9. IHT Statute, above n 104, arts 22.4, 28. Former Iraqi Government on Trial, above n 103, 6. IHT Statute, above n 104, art 6. See also Creation and First Trials of Iraqi Tribunal, above n 98, 13. 111 Creation and First Trials of Iraqi Tribunal, above n 98, 11. 112 For a diﬀerent view, see Scharf and Kang, above n 2. 113 See Judging Dujail, above n 103, 37-43; Former Iraqi Government on Trial, above n 103, 16. 114 Ibid.

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The threat of dismissal is therefore ever-present for judges of the Tribunal. This compromises both the judges’ and the Tribunal’s independence. The absence of international judges who may, or may appear to, temper the impact of domestic political pressure makes the possibility of political vulnerability far more likely in a national judicial process. A major diﬃculty for the Iraqi Tribunal is thus that its proceedings seem more like a politically motivated show trial than a good faith attempt to deliver justice and accountability. The serious lack of security within Iraq has also compromised the ability of the Iraqi Tribunal to conduct open and fair trials. Concerns for the safety of the judges on the Iraqi Tribunal have meant that many of their identities have been kept secret, even as the trials are proceeding. During the trial of Saddam Hussein two of the defence lawyers were assassinated and three of the judges resigned. The identity of witnesses in the Hussein trial was kept secret and others refused to testify for fear of retaliation. In these circumstances, it was diﬃcult for the Saddam Hussein trial to be, and to be seen to be, fair. In particular, the fear and intimidation tactics directed at the judges and the killing of the defence lawyers compromised the ability of the process to deliver justice and to demonstrate a commitment to the rule of law. To the extent that securing criminal justice forms part of peace-making within Iraq, the lack of security surrounding the Saddam Hussein trial presented a genuine obstacle to a successful outcome. The lack of security also inhibits the Iraqi Tribunal’s ability to conduct an eﬀective outreach program. As the experiences of the international and mixed tribunals have shown, systematic and transparent outreach enables the general public to understand the machinations of the tribunal processes, which in turn contributes to their legitimacy. In the Hussein trial, the only outreach consisted of limited televising of proceedings and media brieﬁngs. In addition, local Iraqis could not easily gain access to the place of the trial to observe the proceedings for themselves. This lack of access hindered the public’s ability to comprehend properly the purpose and workings of the trial and thus contributed to local frustrations with the process. Questions have been raised too about the extent to which these national trials for war crimes and crimes against humanity will contribute to capacity-

115 See Judging Dujail, above n 103, 64; Jason Straziuso, ‘Iraq Releasing Vote Complaint Findings’, Associated Press (New York), 15 January 2006. 116 See, eg, Judging Dujail, above n 103, 62-3; CBS News, Secret Witness Testiﬁes (2006) ; Anthony Dworkin, Saddam Hussein on Trial (2005) Crimes of War Project . 117 Judging Dujail, above n 103, 26. 118 See, eg, George Packer, ‘Saddam on Trial’, New Yorker (New York), 31 October 2005. 119 Judging Dujail, above n 103, 25.

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building within the local Iraqi legal community. The international crimes over which the Iraqi Tribunal has jurisdiction have not previously been a part of the Iraqi criminal law, and none of the judges has experience in the complex procedures of evidence collection required or in conducting trials of this kind more generally. In addition, while Iraq retained a functioning legal system in the aftermath of the 2003 war, the system itself, and in particular the judiciary, was a creature of the Hussein regime. Its participants were not accustomed to working in a manner free from executive interference. There is, accordingly, a lack of public conﬁdence in the ability of Iraqi judges to conduct complicated war crimes trials without some form of expert assistance from international judges and prosecutors. Indeed, some of the Iraqi judges have themselves expressed a desire for greater training in the relevant areas of law and for assistance in the form of sitting international judges. Such assistance will become particularly important if the Iraqi court system is to continue with trials of other members of the Hussein regime. Another point of contention raised by the Iraqi Tribunal, at least in the view of the international community, is the capacity of the Tribunal to issue a death sentence. While a state’s right to use the death penalty is not prohibited under international law, the international community generally expresses a strong preference against its use. None of the international or mixed tribunals or the ICC has the capacity to order a sentence of death. There is, thus, discomfort amongst many members of the international community arising from this particular power of the Iraqi Tribunal. It raises questions of fairness in the treatment of international criminals across diﬀerent judicial systems. Further, the execution of Saddam Hussein, and the potential for the execution of other persons accused of multiple atrocities over a long period, deprives victims of the opportunity to have all of their claims brought to trial. Incompatibility between the sentencing powers of local and international tribunals is an issue with which the international community will have to come to terms, given the centrality of local prosecutions in the transitional justice system. 120 121 122 123

See, eg, Gersh, above n 87. Ibid; Judging Dujail, above n 103, 74. Tarin, above n 16, 473-4. See, eg, Human Rights First, Letter from Lawyers Committee for Human Rights to Mr Abel Aziz Al-Hakim, Head of the Iraqi Governing Council (2003) . 124 See, eg, Tarin, above n 16, 532. 125 See, eg, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 6 (entered into force 23 March 1976); Former Iraqi Government on Trial, above n 103, 18; Creation and First Trials of Iraqi Tribunal, above n 98, 23. 126 Saddam Hussein was executed on 30 December 2006: see, eg, BBC News Online, 30 December 2006, .

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Lessons of the National Tribunal

In line with the 2003 surveys of the Iraqi population, the Iraqi Tribunal represents, to some degree, a transitional justice mechanism based on ‘national assessments, national participation and national needs and aspirations’. Nonetheless, it is failing to deliver the kind of justice that will contribute to securing proper accountability for the decades of human rights abuses under the Hussein regime. There is an argument that responsibility for this failure lies with the United States: an occupying power that was so keen to demonstrate local control of national processes, it established a tribunal in an impossibly fraught political and security environment. At the same time, many of the shortcomings of the Iraqi Tribunal could apply to any national environment: the intermingling of the desires for justice and vengeance; political interference by those who assumed power in the aftermath of atrocity, especially if they are or represent primarily victims of the former regime; lack of expertise and capacity within the remaining national legal system; and inconsistencies between international and national standards of criminal law and procedure. To the extent therefore that the international community retains an interest in the legitimacy and viability of transitional justice mechanisms, it needs to balance satisfying the interests of the national constituency with maintaining satisfactory, if not international, standards of fairness and respect for the rule of law. There is no question that national processes, where they exist, can play a successful part in this equation. It may, however, help to enhance the credibility of national tribunals if the international community provides guidance, assistance and funding to them. IV

Conclusion

Assessing the advantages and disadvantages of diﬀerent models of tribunals is only one part of seeking accountability post-conﬂict. Many of the judicial models adopted, whether international, mixed or national, have been used in conjunction with other transitional justice mechanisms, most often truth commissions. Thus, exploring the interaction between the East Timor Special Panels and the Commission for Truth and Reconciliation in East Timor, and the Sierra Leone Special Court and the Sierra Leone Truth and Reconciliation Commission, allows for further insights into the workings of transitional justice mechanisms. The advent of the ICC, too, and its interface with mixed and national tribunals, will be a signiﬁcant factor when considering the establishment of judicial mechanisms in other post-conﬂict situations.

127 Secretary-General’s Report, above n 1, Summary. 128 For a review of these issues, see Stahn, above n 29.

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Within the focus of this chapter, however, future tribunals must build on the experiences of existing tribunals, just as the latter have developed upon the lessons of their predecessors, if they are to play an eﬀective role in securing justice after conﬂict. Factors to be considered include whether the primary beneﬁciaries of the mechanism are meant to be the national or international community or both. This will then aﬀect the structure, composition and applicable law of the tribunal, and can help to ensure a systematic approach to issues such as capacitybuilding and outreach. Tribunal designers must also consider whether the model proposed can be adequately sustained by the proposed funding commitments. In the case of East Timor, for example, some have asked whether no tribunal would have been better than the partial justice delivered by the Panels and SCU. Aspects such as these, in combination with the Secretary-General’s exhortation to pay heed to ‘national assessments, national participation and national needs and aspirations’, may then move international and national communities a little further towards ﬁnding justice in the aftermath of conﬂict.

129 Katzenstein, above n 46, 277-8.

Chapter 10 The Operations of the International Criminal Court – A Brief Overview and First Impressions Geoﬀrey Skillen

The Rome Statute of the International Criminal Court (ICC) entered into force on 1 July 2002. Since then the Court has been busy in preparation for its ﬁrst trials. It therefore seems timely to reﬂect on what has occurred since the inception of the Court as a legal entity. I will also oﬀer a few observations, both on the way in which the Court has conducted itself so far and on how it should conduct itself as it enters what might be called its judicial phase. I

Institutional Matters

Immediately before 1 July 2002 the Court was no more than a theoretical entity – an institution established by a treaty awaiting entry into force before anything concrete could be done to make it work. In the short time since its creation, numerous vital institutional matters have been resolved. The ﬁrst 18 judges took up oﬃce on 11 March 2003. A second round of elections was held in January 2006. Under the Presidency of Phillipe Kirsch of Canada, the judges are now organised into pre-trial, trial and appeals chambers, as required by art 39 of the Rome Statute.  Mr Luis Moreno-Ocampo of Argentina was sworn in as Chief Prosecutor on 16 June 2003. Mr Bruno Cathala of France was elected by the judges as Registrar on 24 June 2003.

1

2

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, art 126 (entered into force 1 July 2002) (‘Rome Statute’). Article 126 of the Rome Statute provides that it enters into force on the ﬁrst day of the month after the 60th day following the deposit of the 60th instrument of ratiﬁcation, acceptance or accession. On 11 April 2002, 10 states deposited instruments of ratiﬁcation, crossing the threshold of the 60 needed for entry into force. At the time of writing, there are 104 States Parties to the Statute. Rome Statute, above n 1, art 36(9)(b). Article 36(9)(b) provides that at the ﬁrst election, one third of the judges elected shall be selected by lot to serve a term of three years. Accordingly, re-elections were due in March 2006.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 229-235.

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The 2005 Report of the Court to the United Nations General Assembly states that the Court has recruited 323 permanent staﬀ from 58 countries. The Assembly of States Parties (ASP) is the management oversight and legislative body of the Court. It has met ﬁve times, most recently at The Hague from 23 November – 1 December 2006. A number of agreements critical to the Court’s operations have been negotiated, including a Relationship Agreement with the United Nations, as required by art 2 of the Rome Statute. An Agreement on Privileges and Immunities has also been concluded, governing the legal status of the Court and the privileges and immunities to be enjoyed by oﬃcers of the Court when performing duties in the territory of States Parties. Negotiations with the host state, The Netherlands, about the Court’s facilities and detention arrangements for convicted persons have now concluded. These are but a few examples of progress that has been made on institutional matters. While it’s not the function of this chapter to exhaustively list these matters, it might be noted that progress has also been made on a number of other fronts, including the establishment of a committee on budget and ﬁnance, of a victim’s trust fund and victim’s participation section of the Registry, and the drafting of a code of professional conduct for counsel.

3 4

5

6

7

Report of the International Criminal Court, UN Doc A/60/177, 1 August 2005. The functions of the Assembly of States Parties are set out in Rome Statute, above n 1, art 112. For the proceedings of the ﬁfth session, see Assembly of the States Parties to the Rome Statute of the International Criminal Court, Oﬃcial Records of the Fifth Session, 23 November – 1 December 2006, UN Doc ICC-ASP/5/32 (2006). Relationship Agreement between the United Nations and the International Criminal Court, signed and entered into force 4 October 2004, 2283 UNTS 196. The Agreement was approved by the Assembly of States Parties on 7 September 2004 in Assembly of States Parties to the Rome Statute of the International Criminal Court, Oﬃcial Records of the Third Session, 6-10 September 2004, UN Doc ICC-ASP/3/25 (2004), 8, and by the General Assembly in Cooperation between the United Nations and the International Criminal Court, GA Res 58/318, UN Doc A/RES/58/318, 13 September 2004. Agreement on the Privileges and Immunities of the International Criminal Court, opened for signature 9 September 2002, 2271 UNTS 54 (entered into force 22 July 2004). The Agreement was adopted by the Assembly of States Parties on 9 September 2002 in Assembly of States Parties to the Rome Statute of the International Criminal Court, Oﬃcial Records of the Fourth Session, 28 November – 3 December 2005, UN Doc ICC-ASP/1/3 (2004), 217-32 Headquarters Agreement between the International Criminal Court and the Kingdom of the Netherlands, signed on 7 June 2007 (not yet in force). The Agreement was approved by the Assembly of States Parties on 1 December 2006 in Assembly of States Parties to the Rome Statute of the International Criminal Court, Oﬃcial Records of the Fifth Session, 23 November – 1 December 2006, UN Doc ICCASP/5/32 (2006), 350

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II

231

Crime of Aggression

The crime of aggression is an international crime under the jurisdiction of the Court. The deﬁnition of this crime, however, has not yet been agreed upon by the States Parties to the Rome Statute. Progress has continued on drafting of the crime of aggression. A special working group of the ASP has been formed for this purpose, and has met several times at Princeton University, United States, most recently from 29 January to 1 February 2007. III

Judicial Matters

Concurrent with much of the activity described above, the Prosecutor has opened investigations into four situations. They are in relation to events in the Democratic Republic of the Congo (DRC) (opened in June 2004); Uganda (opened in June 2004); Darfur, Sudan (opened in June 2005); and the Central African Republic (CAR) (opened in May 2007). The Cote D’Ivoire, a non-State Party, has lodged a declaration accepting the jurisdiction of the Court. The DRC, Uganda and the CAR each made the referrals of the situations under investigation themselves, as is provided for in art 13(a) of the Rome Statute. The situation in Sudan was referred to the Court by the Security Council acting under Chapter VII of the UN Charter, as is provided for in art 13(b). In the DRC, the ICC Prosecutor is investigating allegations of thousands of deaths by mass murder and summary execution since 2002, as well as large-scale patterns of rape, torture and the use of child soldiers. On 29 January 2007, the Pre-Trial Chamber conﬁrmed charges against Thomas Lubanga Dyilo, thereby paving the way for the conduct of the ﬁrst trial before the Court. In Uganda, the allegations are of large scale abductions, killings, torture and sexual violence. The majority of alleged abductees are children. On 14 October 2005, the Pre-Trial Chamber unsealed arrest warrants for ﬁve senior leaders of

8

9

10 11 12

Rome Statute, above n 1, art 5(2). Article 5(2) of the ICC Statute provides that the Court shall have jurisdiction over the crime of aggression once an amendment to the Statute has been adopted which deﬁnes the crime and sets out the conditions under which the Court shall exercise jurisdiction. This cannot occur until seven years after entry into force of the Rome Statute (see art 121 and 123). The most recent report of the working group is contained in Assembly of State Parties, Special Working Group on the Crime of Aggression, UN Doc ICC-ASP/5/35 (2007). For more details on this topic, see Carrie McDougall’s chapter in this volume. This procedure is provided for in Rome Statute, above n 1, art 12(3). SC Res 1593 (2005), UN Doc S/RES/1593 (2005), 31 March 2005. International Criminal Court, Situation in the Democratic Republic of Congo .

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the Lord’s Resistance Army. The warrants had been issued on 8 July 2005 but had been sealed to protect victims and their families. In Sudan, the allegations are of killing of thousands of civilians and widespread destruction and looting of villages, leading to the displacement of approximately 1.9 million civilians, as well as allegations of a pervasive pattern of rape and sexual violence and persistent targeting and intimidation of humanitarian personnel. On 14 December 2006, the Prosecutor addressed the Security Council, setting out progress made in the investigation. On 2 May 2007, the Pre-Trial Chamber issued arrest warrants for two individuals. The Court has opened ﬁeld oﬃces in Kinshasa (DRC) and Kampala (Uganda), to better enable the Prosecutor to carry out the investigations. The Court is also negotiating agreements with international and regional organisations, including the African Union and the United Nations Mission in the Democratic Republic of the Congo (MONUC), to secure co-operation in carrying out the Court’s functions. IV The Court’s Initial Period Before the Rome Statute’s entry into force, supporters and opponents of the Court alike argued and made predictions about how the Court would operate. Those who took part in the debate were able to make judgments totally unfettered by empirical evidence. Australian readers will recall the vigorous debate that raged before the Australian Government made the ﬁnal decision to ratify the Statute. The inquiry conducted by the Parliament’s Joint Standing Committee on Treaties ( JSCOT) into whether ratiﬁcation would accord with Australia’s national interest lasted for almost two years, receiving 252 submissions from interested parties, conducting seven rounds of public hearings, and ﬁnally making a qualiﬁed recommendation in favour of ratiﬁcation. 13 14 15

16

International Criminal Court, Situation in Uganda . International Criminal Court, Darfur . For example, during the Parliamentary debate on the legislation to enable Australia’s ratiﬁcation of the Rome Statute, a member of Parliament suggested that the court might be interested in a prosecution for genocide stemming from the installation of condom vending machines in aboriginal communities, on the basis that this could constitute a measure intended to prevent births in the aboriginal community. See Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2002, 4365–7, Katter (Memb. For Kennedy). Joint Standing Committee on Treaties, Parliament of Australia, Report 45: Inquiry into the 1998 Statute of the International Criminal Court (May 2002). Five members of the Committee recommended that Australia withdraw from the Rome Statute in the event that the court represented any adverse impact on Australia’s interests. For more details on this topic see David Blumenthal’s chapter in this volume.

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With the beneﬁt of hindsight, we can now reﬂect on the experience of the last three-and-a-half years and make qualiﬁed judgments based on it. Most importantly, this experience suggests that the Court and the Prosecutor are strictly observing the dictates of the Rome Statute in only taking on the most serious cases of international concern. Fears that the Prosecutor would be unduly inﬂuenced by the encouragement of non-governmental organisations to take on frivolous or unworthy cases have so far proven to be unfounded. The Oﬃce of the Prosecutor has stated that it has received over 1700 communications relating to situations that might fall within the jurisdiction of the Court. Of these cases, 80 per cent have been found to be manifestly outside the jurisdiction of the Court, and the remainder have been grouped by situation and considered for further analysis.The Prosecutor has, however, so far declined in any case to exercise his power under art 15 of the Rome Statute to initiate an investigation of his own motion. On 9 February 2006, the Prosecutor issued a statement that he would not investigate allegations of war crimes committed in Iraq by coalition forces. His oﬃce had received allegations of aggression, genocide, crimes against humanity and war crimes. The crime of aggression is clearly outside the Court’s jurisdiction at present. The genocide allegations did not disclose the requisite intent to destroy an identiﬁable group. The crimes against humanity allegations did not meet the jurisdictional threshold of ‘widespread’ or ‘systematic’ attacks against a civilian population. While the analysis of the war crimes allegations indicated that crimes may have been committed, they did not meet the standard of being committed as part of a plan or as part of a large-scale commission of crimes. This statement reinforces the commitment of the Prosecutor to ensure that the Court adheres to its Statute and addresses only the gravest violations, when national courts fail to do so. Similarly, suggestions that the Prosecutor would take on cases that should more properly be handled domestically have not come to fruition. This is amply demonstrated by the fact that the DRC and Uganda situations result from referrals by the concerned States Parties themselves (so-called ‘self-referrals’) and the Sudan situation from a referral by the Security Council. The experience makes clear that the Prosecutor has only taken on the most serious cases that cannot or will not be adequately handled by domestic courts. In addition to the good reason that the Rome Statute requires him to do this, there are some obvious pragmatic reasons, not the least of which that the Prosecutor will have neither the time nor resources to take on any but the most serious cases. It comes as something of a surprise that the ﬁrst two situations to be investigated by the Prosecutor result from ‘self-referrals’. When the Rome Statute was 17

Iraq Response .

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Geoﬀrey Skillen

being negotiated, it was suggested that the referral of a situation by a State Party, provided for in art 14 of the Rome Statute, was unlikely to be a fruitful source of work for the Court. The reason for this was because of the traditional reluctance of states to make complaints against others, as is provided for in several of the major human rights treaties. Little thought was given to the prospect of states referring situations involving themselves or their nationals. The referral by the Security Council of the situation in Sudan is also worthy of speciﬁc mention. When the Rome Statute was adopted, fears were expressed that the mechanism of Security Council referral would prove illusory, on the basis of the likelihood that any given case would be vetoed by one or more permanent members of the Council. In the case of Sudan, Resolution 1593 was adopted by 11 in favour, none against and four abstentions, including the United States and China. This development, coming as it does so early in the life of the Court, suggests that the Security Council will not be unwilling to exercise its referral power in appropriate circumstances. V The Future In my view, the Court has made an appropriately cautious and sound start. The Prosecutor has so far only agreed to investigate the most serious cases. This is well demonstrated by the February 2006 statement on Iraq. He and future occupants of the Oﬃce must be rigorous in continuing this practice. To do otherwise, and to take on cases that might be thought to be frivolous or politically motivated, would play into the hands of those critics of the Court who predicted that it would become a vehicle for pushing ideological agenda extrinsic to the stated purposes of the Court. There is accordingly unlikely to be much, if any, scope for the exercise of the Prosecutor’s power to initiate investigations proprio motu. Similarly, the Prosecutor must continue to strictly satisfy himself that cases taken on have no prospect of being handled adequately at a domestic level. The investigations initiated so far obviously satisfy this criterion. The Prosecutor must also consider the likelihood of gaining the co-operation with relevant states that will be needed to mount successful investigations and prosecutions. The Court will need to devote attention and where necessary resources to facilitate this. It has already recognised this reality in the opening of ﬁeld oﬃces in the s§tates where investigations are being conducted, and in 18

19

See, eg, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 41 (entered into force 23 March 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195, art 11 (entered into force 4 January 1969); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, art 21 (entered into force 26 June 1987). SC Res 1593 (2005), UN Doc S/Res/1593 (2005), 31 March 2005.

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the negotiation of agreements with governments, and international and regional organisations aimed at securing co-operation with the Court. When cases reach trial stage, it will be essential that they are tried professionally, impartially and that all the incidents of fair trial are strictly observed. If the interests of justice require it, the Court should not hesitate to acquit. The Court must not allow itself to feel pressured into recording convictions in its early stages merely to justify its existence. This will rebut criticisms that have been made to the eﬀect that the Court will not conduct itself in accordance with the standards accepted in countries such as Australia. The management of the Court must exhibit propriety and professionalism. This is especially true of its ﬁnancial management. There must be no hint of any scandal or impropriety in the Court’s administration – the consequences for the standing and credibility of a new international institution are obvious. During the negotiation of the Rome Statute, it was eloquently advocated that it be a vehicle for numerous purposes other than those which emerged in the version of the Rome Statute ﬁnally adopted. Some saw it as a means of advancing the cause of disarmament, while others emphasised the importance of criminalising particular types of conduct, such as sexual violence, or crimes against children. Others still argued that the Court’s jurisdiction should be retrospective, in order to enable the prosecution of particular crimes. In many instances, advocates of these causes were disappointed with the Rome Statute. Yet the Court could not have been all things to all people, and the Rome Statute is probably as good an outcome as could have been expected, given the realpolitik that inevitably pervaded the negotiations. There is in any event the opportunity for any demonstrated shortcomings in the Rome Statute to be rectiﬁed in another two-and-a-half years. I would suggest that the prospects for any addition to the Court’s jurisdiction or reform of its operations will be greatly enhanced if, at that time, it can demonstrated to the States Parties who will make the decisions at the Review Conference that the Court has acted appropriately and can be entrusted with an expanded mandate.

20

Rome Statute, above n 1, arts 121, 123. See the amendment and Review Conference provisions in these two articles.

Part Five Nuremberg and Australian Implementation of International Criminal Law

Chapter 11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints Michael Carrel

I

Introduction

In November 1945, the matter of war crimes was very much on the agenda of the Allied powers, and particularly so in Australia. World War Two was over, the Axis powers had been decisively defeated and war crimes trials had begun in both Europe and the Asia-Paciﬁc region to judge selected German and Japanese prisoners for various crimes associated with the war. In the Philippines, General Douglas MacArthur, the Supreme Commander Allied Powers, had been quick to place the Japanese General Yamashita Tomoyuki on trial for war crimes committed by his subordinates against civilians in Manila as the war had drawn to an end. This ‘command responsibility’ trial had begun on 8 October 1945 and concluded on 7 December 1945. General Yamashita was found guilty and hanged on 23 February 1946. In Europe, the International Military Tribunal (IMT) at Nuremberg would begin its deliberations on 20 November 1945 and continue until 1 October 1946. The corresponding tribunal in Tokyo, the International Military Tribunal for the Far East (IMTFE), would not get underway until 29 April 1946, but would then remain sitting for two-and-a-half years – until 12 November 1948. Australia’s own war crimes program would begin on 29 November 1945 and continue until mid 1951. This chapter will ﬁrstly consider the ‘stimuli’ that impelled Australia to commence that program and then look at the ‘constraints’ that limited the program’s eﬀectiveness and eventually brought it to its end.

1

2

US v General Tomoyuki Yamashita, (Manila. 8 October – 7 December) Case No 21 in United Nations War Crimes Commissions, Law Reports of Trials of War Criminals (1946) Vol IV, 1. See, eg, Roger S. Clark, ‘Nuremberg and Tokyo in Contemporary Perspective’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 171; M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (1992) 205.

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 239-257.

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A Australia’s Historic Fears of Japan From 17 July – 2 August 1945, the ﬁnal meeting of the Grand Alliance, with Truman, Churchill, Stalin and Chiang Kai-shek, had taken place in Potsdam, Germany, to discuss among many things, the surrender terms for Japan. Towards the end of that two-week meeting, the so-called Potsdam Proclamation was issued, which included the following terms: We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties on our prisoners. We call upon the Government of Japan to proclaim now the unconditional surrender of all the Japanese armed forces, and to provide proper and adequate assurances of their good faith in such action. The alternative for Japan is prompt and utter destruction.

Australia and New Zealand were angry that they had not been consulted in the framing of Japanese peace terms. Dr Evatt, the Australian Minister for External Aﬀairs, expressed Australia’s disappointment in a statement issued two days later: [The Potsdam Proclamation] was published without prior reference to, still less the concurrence of, the Australian Government … All that need be said about the actual terms of peace foreshadowed in the ultimatum is that they appear to treat Japan more leniently than Germany, in spite of the fact that the slightest sign of any tenderness towards Japanese imperialism is entirely misplaced, having regard to the outrageous cruelties and barbarities systematically practised under the imperialist regime.

Clearly a nerve had been touched. Australia, in the lead up to World War Two, had developed a deeply-held fear of Japan. This was a fear based on Japan being both a potential military threat and a social threat. Professor Joanna Bourke, in her book An Intimate History of Killing, has summarised those fears felt by Western nations: Japan was the ﬁrst non-white country to industrialise and become an imperial power, it was the ﬁrst to claim a place among the great powers (at the Paris

3

4

See, eg, Potsdam Proclamation (Terms for Japanese Surrender), signed 26 July 1945, United States–China–United Kingdom, 3 Bevans 1204, paras 10 and 13. See also Charles L. Mee Jr, Meeting at Potsdam (1975) 313-5. Paul Hasluck, Australia in the War of 1939-1945 (1952).

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Peace Conference), the ﬁrst to beat a western power at war (Russia in 1905), and the ﬁrst to raise the idea of Asia for the Asians.

Australia viewed itself as a white, Anglo-Saxon enclave in a racially alien corner of the world. One of the ﬁrst pieces of legislation it had introduced at Federation in 1901 brought about the so-called ‘White Australia’ Policy, designed to exclude all Asians and ‘coloured’ people from entering Australia. Even though Japan had been an ally of Australia during World War One, this did not diminish in any respect Australia’s military fears of that country. During the inter-war years, Japan had developed a powerful navy and her occupation, under a League of Nations mandate, of former German island territories north of the equator brought Japan’s physical presence ever closer to Australia. With Japan’s surprise attack on Pearl Harbour on 7 December 1941, Australia’s worst fears were dramatically heightened. John Curtin, who had become Australian Prime Minister just two months before that date, rallied the nation to a common cause by invoking old racial fears of Japan. He also played up the spectre of Japanese invasion with the Australian public in order to mobilise the nation’s war eﬀort. II

Japan’s War Crimes Record in World War Two

Curtin’s eﬀorts to demonise Japan in the interests of national cohesiveness were soon matched by the actions of Japan itself. During the 1930s, Japanese society had become increasingly consumed by a militarist philosophy that produced an enormously brutalising eﬀect on the nation. This was particularly evident in its armed forces, which had become exceptionally authoritarian and where men were trained to blindly follow orders without question. Beatings had become a common method of enforcing discipline. Surrender had become the supreme disgrace. Whereas, during World War One, Japanese armed forces had behaved with honour towards captured enemy soldiers and civilians, the equivalent forces during World War Two often behaved with utter barbarity. The contempt that Japanese forces now felt towards prisoners of war (POWs) and civilians in occupied territories resulted in extensive incidents of war crimes and atrocities.

5 6 7 8

Joanna Bourke, An Intimate History of Killing (1999) 205. Immigration Restriction Act 1901 (Cth). Peter Stanley, Australia Under Threat of Invasion (2002) Australian War Memorial <www.awm.gov.au/events/conference/2002/stanley_paper.pdf>. Hugh Clarke, Colin Burgess and Russell Braddon, Australians at War: Prisoners of War (1988) 70.

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There had been almost 133 000 Allied POWs held by the Japanese during World War Two. Of these, more than 36 000 had died, thus providing an overall death rate of 27 per cent. A

Number of Allied POWs and Death Rates Under the Japanese

Country Australia United Kingdom Canada New Zealand United States The Netherlands Total

Number of POWs

Number of Deaths

22 376 50 016 1 691 121 21 580 37 000 132 784

8 031 12 433 273 31 7 107 8 500 36 375

Death Rate (per cent) 35.9 24.8 16.1 25.6 32.9 22.9 (average) 27.4

These ﬁgures show that there were 22 376 Australian POWs held by the Japanese, of whom 8031 were either killed or died of neglect – a death rate of 36 per cent. In other words, more than a third of Australian POWs in Japanese hands would die. As the evidence of war crimes against both POWs and civilians began to be revealed as the war progressed, so did the need increase with Australia and its fellow Allies to achieve a reckoning with Japan at war’s end. And as the war progressed, this need for reckoning coalesced into the call for war crimes trials. III War Crimes and the Law By the start of World War Two it was well established that there existed a system of laws of war that regulated the conduct of armed hostilities. These laws were embodied in both customary international law and in treaty law. The key treaties aﬀecting land warfare were the 1907 Hague Convention IV (which was already considered to be declaratory of customary law) and the two 1929 Geneva Conventions: the so-called Red Cross Convention, related to land warfare, and 9 10

11 12

Yuki Tanaka, Hidden Horrors: Japanese War Crimes in World War II (1998) 70. Clarke, Burgess and Braddon, above n 8, 153. These ﬁgures generally accord with those contained in Gavin Long, The Six Years War: Australia in the 1939–1945 War (1973) 470, 474. Hague Convention (IV) Respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, 1 Bevans 631 (entered into force 26 January 1910). Geneva Convention of July 27, 1929, for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, opened for signature 27 July 1929, 2 Bevans 965 (entered into force 19 June 1931).

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the POW Convention. Japan was a party to Hague Convention IV and the Red Cross Convention, but had not ratiﬁed the POW Convention at the insistence of its armed forces. The military ﬁrmly believed that, were Japan to ratify the POW Convention, it would entirely undermine two fundamental codes of behaviour bred into its armed forces: that it was an ignominy to surrender to the enemy and that to die for the Emperor was the highest honour that could be attained. It was, however, less well established that there existed a right under international law for one nation to prosecute individuals of another nation for war crimes. Certainly that right had not existed at the end of World War One. However, the 1919 Versailles Peace Treaty that resulted from the post-war Paris Peace Conference aﬃrmed a principle that individual oﬀenders against the laws of war were personally responsible for their acts and therefore liable to punishment. Even though the Leipzig war crimes trials that followed were unsatisfactory in many respects, they did establish that it was possible for a state to not only punish crimes committed on its territory, but that a state could also punish crimes wherever committed against the safety of that state and its nationals. By the start of World War Two, therefore, it had become generally accepted that a belligerent had a right under international law to prosecute for war crimes those members of the armed forces of the opponent who fell into its hands. Australia’s determination to prosecute Japanese defendants for war crimes was therefore well supported in international law and had the full backing of the London-based United Nations War Crimes Commission (UNWCC), of which Australia was an active member. That Commission had been established in October 1943 with the express aim of becoming a repository for evidence concerning war crimes, which would also list individuals accused of their commission and make plans for the apprehension and trial of those accused. Concomitant with Australia’s membership of the UNWCC was the establishment of its own locally-based Australian War Crimes Commission, headed by the then Chief Justice of the Supreme Court of Queensland, Sir William Flood Webb. During the period June 1943 – January 1946, Webb conducted three separate enquiries into Japanese war crimes committed against Australians.

13 14 15 16

Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 27 July 1939, 2 Bevans 932 (entered into force 19 June 1931). Treaty of Peace with Germany (Treaty of Versailles), opened for signature 28 June 1919, 2 Bevans 43, art 228 (entered into force 10 January 1920). See, eg, Bassiouni, above n 2, 202. Australian War Memorial: Webb I, ‘A Report on Japanese Atrocities and Breaches of the Rules of Warfare’ (15 March 1944, AWM226, 5); Webb II, ‘A Report on War Crimes against Australians Committed by Individual Members of the Armed Forces of the Enemy’ (31 October 1944, AWM226, 6); Webb III, ‘A Report on War Crimes Committed by Enemy Subjects against Australians and Others’ (31 January 1946, AWM226, 8). See, eg, David Sissons, ‘Sources on Australian Investigations into

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Australia, through its own Webb enquiries, had been painstaking in its investigation of war crimes and was determined that those responsible for such crimes should not escape punishment. Along with Australia’s historic fear of Japan, the appalling World War Two war crimes record of Japan and the determination of other Allied nations to seek a reckoning for those crimes, international law provided a powerful stimulus to initiate a war crimes trials program. That program was given its legal basis on 4 October 1945, with the passing of the Australian War Crimes Act 1945 (Cth). This legislation, together with a set of supporting Regulations, provided for military courts to try those accused of war crimes. The pressure was now on the Australian Army to get the trials underway, for the powerful stimulus of public feeling was very much to the fore during the months immediately following hostilities. IV The Allied Prosecution of Japanese War Criminals The Allied prosecution of Japanese war criminals at the end of World War Two was conducted at both an international level and at national levels. At the international level, the IMTFE, sitting in Tokyo from 1946–48, tried and sentenced 25 ‘major’ Japanese war criminals for plotting and waging war in the Asia-Paciﬁc region. A far greater number of Japanese war criminals – so-called ‘minor’ war criminals – were, however, tried and sentenced in a series of some 2240 subsidiary trials involving some 5600 defendants conducted at the national level throughout the region by Allied military courts between 1945–51. In these trials, 920 Japanese were condemned to death and some 3000 others were sentenced to various prison terms. I should take just a moment to explain these terms ‘major’ and ‘minor’ war criminals. The term ‘major’ war criminal originated in the Nuremberg Charter and referred to leaders, organisers and instigators involved in either crimes against peace, war crimes or crimes against humanity. These crimes were described in sub-paragraphs (a) to (c) of art 6, with (a) referring to ‘crimes against peace’, or what is now more commonly referred to as the crime of aggression. It was the German and Japanese political and military leaders who were charged with crimes against peace, and they were generally referred to as ‘major’ or ‘A Class’

17 18 19 20

Japanese War Crimes in the Paciﬁc’ (1997) 30 Journal of the Australian War Memorial . War Crimes Act 1945 (Cth) s 5(1). Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, as amended 26 April 1946, TIAS 1589, 4 Bevans 20, art 5. Phillip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951 (1971) xi, xiv. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279, art 6 (‘Nuremberg Charter’).

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war criminals. It was those charged with simply ‘war crimes’ (‘B Class’ crimes) or ‘crimes against humanity’ (‘C Class’ crimes) who were referred to as ‘minor’ war criminals – a somewhat misleading term, when you take into account some of the dreadful crimes they covered. Australia played a signiﬁcant part in the subsidiary trial process. Between November 1945 – April 1951, Australia conducted 300 trials in nine diﬀerent locations against 807 individual defendants. Of that number, 579 were convicted on one or more charges and 137 of these were sentenced to death and executed.

21

22

See, eg, Gavan McCormack, ‘Apportioning the Blame: Australian Trials for Railway Crimes’ in Gavan McCormack and Hank Nelson (eds) The Burma-Thailand Railway: Memory and History (1993) 85. Australian War Memorial: ‘War Crimes Trials: Japanese War Criminals Charged under the War Crimes Act 1945 by Australian Military Authorities (1958, AWM226, 14); ‘Wewak, Labuan, Morotai and Darwin (Register of Sentences Imposed in Australian War Crimes Trials)’ (1945–50, AWM226, 15); ‘Rabaul (Register of Sentences Imposed in Australian War Crimes Trials)’ (1946–47, AWM226, 16); ‘Singapore, Hong Kong, Los Negros (Register of Sentences Imposed in Australian War Crimes Trials)’ (1946– 51, AWM226, 17) (see table on following page). See also Peter Stanley, ‘“He’s (Not) Coming South”: The Invasion that Wasn’t’ (Paper presented at the Remembering 1942 History Conference, Australian War Memorial, 31 May 2002), available at .

16

190

3

25

13

26

300

Labuan 3/12/4531/1/46

Rabaul 12/12/45– 6/8/47

Darwin 1/3/46– 29/4/46

Singapore 25/6/46– 29/4/47

Hong Kong 24/11/47– 13/12/48

Manus Is 5/6/50–9/4/51

Total

69

644

952ii

38

51

10

266

128

1

81

279

44

4

11

12

124

17

1

66

Accused Accused Convicted Acquitted

113

42

78

22

392

156

2

147

Accused Tried

29

-

-

16

-

2

11

-

-

Accused Ordered for Retrial

114iii

5

5

18

-

84

2

-

-

34iii

-

-

-

1

3

5

-

25

Death Hanging Shooting

4

6

-

8

5

-

-

39

16

Life

2

-

-

-

-

2

-

-

-

25 years

154

17

12

10

-

49

56

-

10

80

6

3

3

1

22

38

-

7

Imprisonment 11–24 10 years years

221

25

14

14

8

98

22

1

39

Under 10 years

One of the Morotai trials, M45, began at Ambon (2-18 January 1946) but concluded at Morotai (25 January – 15 February 1946). As some were defendants in more than one trial, the total number tried was 807 (not 952). With some defendants being awarded the death penalty in more than one trial (and two condemned men having died in custody) the total number executed was 137 (not 148).

2

Wewak 30/11/45– 11/12/45

i ii iii

25

Trials

Morotaii 29/11/45– 28/2/46

Place

246 Michael Carrel

Australian War Crimes Trials 1945–1951 – Statistics

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

247

Sentences of Death Court

Court Sentence

Conﬁrmed Sentence

Morotai

27

25

Labuan

29

7

Wewak

1

0

Rabaul

113

87

Darwin

1

1

Singapore

20

18

Hong Kong

10

5

Manus

14*

5

Total

*

215

148

This total includes the two death sentences received by one of the defendants, Miyamoto Ipachi, from two separate trials, LN8 and LN23.

V The Australian Army’s Role The Australian Army was given complete authority to run the Australian war crimes trials program. By December 1945, it had established a war crimes section within the Directorate of Prisoners of War and Internees at Army Headquarters in Melbourne. The Directorate quickly established two outstations – one in Singapore, known as 1 Australian War Crimes Section (1AWCS), which was primarily involved in investigating and conducting trials involving Australians that had occurred in the Malaya, Burma, Thailand area, and the other in Tokyo, known as 2 Australian War Crimes Section (2AWCS). The Tokyo section was not permitted by the Supreme Commander Allied Powers, General Douglas MacArthur, to conduct Australian trials but it certainly conducted investigations and participated in US-run trials in Japan involving crimes against Australian POWs. A What Lessons Can Be Learnt from the Australian War Crimes Trials Program There would seem to be four particular lessons that emerged from the Australian war crimes trials program: – Along with the other national war crimes programs of that era, the Australian war crimes trials ultimately assisted the process of strengthening and reinforcing the importance of international humanitarian law. 23

Piccigallo, above n 19, 127-8.

248 – – –

Michael Carrel Military tribunals, because of their very nature, are susceptible to accusations of ‘victor’s justice’. War crimes tribunals subject to resource constraints will be reduced in eﬀectiveness. Ad hoc war crimes trials programs, such as that conducted by Australia postWorld War Two, invariably will be subject to external political constraints to hasten their eventual closure. B

Strengthening International Humanitarian Law

The post-war Australian war crimes trials program, together with the various other Allied war crimes trials programs of that era, provided an important stimulus for the strengthening of international humanitarian law. In the late 1940s, the international community was determined that the worst of the crimes and atrocities of World War Two – including concentration camps, the mass slaughter of civilians, and the terror bombings – would not be repeated. In 1948, largely as a consequence of Nazi wartime attempts to achieve a ‘ﬁnal solution’ against the Jewish people in Europe, the Convention on the Prevention and Punishment of the Crime of Genocide – otherwise known as the Genocide Convention – was approved for signature by the United Nations General Assembly. The following year, in a process in which Australia was actively involved, international agreement was reached to revise and strengthen the Geneva Conventions. This included establishment of a fourth and totally new convention designed to give protection to civilians in time of war. The four Geneva Conventions of 1949 were further strengthened in 1977 with the inclusion of two Additional Protocols. Together, 24 25

26

27

Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’). Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention IV, above n 26 (collectively, ‘Geneva Convenions’. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, opened

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

249

these four Conventions and the two Additional Protocols provide the main body of international treaty law designed to protect those not participating in hostilities in time of war. Despite the existence of such laws, there remained no international system for bringing to account those who commit war crimes. Following the outbreak of war in Croatia (1991) and Bosnia-Herzegovina (1992), the UN Security Council was impelled in 1993 to create an ad hoc war crimes court in The Hague, to be known as the International Criminal Tribunal for the former Yugoslavia (ICTY). This Tribunal was tasked with investigating and prosecuting those responsible for the serious violations of international humanitarian law that had been committed in the former Yugoslavia since 1991. In 1994, the Security Council created a further ad hoc tribunal, to be known as the International Criminal Tribunal for Rwanda (ICTR), located in Arusha, Tanzania, to investigate and prosecute those responsible for committing genocide and other serious violations of international humanitarian law in Rwanda during 1994. These two Tribunals, which are still sitting, are the ﬁrst such courts to be established to consider widespread crimes committed in an area of conﬂict since World War Two. More recently, in August 2000, the Security Council approved the establishment of a further ad hoc international tribunal to investigate and prosecute war crimes committed during armed conﬂict in Sierra Leone, and in May 2003 the UN reached a draft agreement with the Government of Cambodia for a similar tribunal to be established to try former Khmer Rouge leaders. The problem with ad hoc tribunals, however, is that they can be slow and complicated to set up, and they can be costly. Moreover, as they are only established after the event, they provide no capacity to deter the perpetrators of such crimes and can lead to allegations of ‘victor’s justice’. In recognition of these problems, the international community, after many years of preparatory negotiations, met in Rome in 1998 to ﬁnalise and adopt a statute for a permanent International Criminal Court (ICC). Australia, along with 104 other nations, has ratiﬁed the Rome Statute, which entered force on 1 July 2002. The ICC, which is based in The Hague and is independent of the United Nations, is the ﬁrst permanent international judicial body capable of trying individuals for genocide, crimes against humanity and war crimes when national courts are unable

28 29 30 31 32

for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978 (‘Additional Protocol II’). SC Res 808 (1993), UN Doc S/RES/808 (1993), 22 February 1993; SC Res 827 (1993), UN Doc S/RES/827 (1993), 25 May 1993. SC Res 955 (1994), UN Doc S/RES/955 (1994), 8 November 1994. SC Res 1315 (2000), UN Doc S/RES/1315 (2000), 14 August 2000. Khmer Rouge Trials, GA Res 57/228B, UN Doc A/RES/57/228B, 22 May 2003. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, art 126 (entered into force 1 July 2002) (‘Rome Statute’).

250

Michael Carrel

or unwilling to do so. A few days before it entered into force, the Australian Commonwealth Parliament passed two Bills – the International Criminal Court Bill 2002 (Cth) and the International Criminal Court (Consequential Amendments) Bill 2002 (Cth) – which established procedures in Australian domestic law that fulﬁl Australia’s obligations under the Rome Statute and provided for a series of amendments to various Commonwealth Acts to enable the operation of those procedures. Leaving aside the War Crimes Act 1945 (Cth), which is still in existence but now only provides for the prosecution of war crimes that took place in Europe during World War Two,  the primary piece of Australian legislation that will enable any future war crimes trials to take place in Australia is the Criminal Code Act 1995 (Cth). This act, which was amended to meet Australia’s obligations under the Rome Statute, provides for such trials to be conducted under civilian auspices; not military. C ‘Victor’s Justice’ One of the strongest allegations that have been levelled against the post-war series of Allied war crimes trials – which were largely military-run programs – was that they were a manifestation of ‘victor’s justice’. Even the Nuremberg and Tokyo Tribunals, which were to an extent ‘internationalised’ and had civilian oversight, suﬀered with some justiﬁcation from this accusation. In Australia’s case, the Army was given complete authority to run the program. The Army took responsibility for investigating, prosecuting, adjudicating and punishing war crimes committed by the Japanese military. There was no civilian oversight of the program, other than that provided for by the Minister for the Army under normal governmental procedures. Under such arrangements, it would have been particularly diﬃcult for any military court convened in the immediate aftermath of a war that had evoked such an outpouring of national anger to be seen as being absolutely impartial in its dealings with defendants appearing before it. This deﬁciency was later recognised by the international community when it came to revise the Geneva Conventions in 1949. The new Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III) considerably raised the bar from its 1929 predecessor by now requiring that: ‘in no circumstances whatever shall a prisoner of war be tried by a court of any

33 34

35 36

Ibid arts 1, 5. Timothy L.H. McCormack, ‘Australia’s Legislation for the Implementation of the Rome Statute’, in Matthias Neuner (ed), National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (2003) 65-82. War Crimes Act 1945 (Cth) s 6(c). Criminal Code Act 1995 (Cth).

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

251

kind which does not oﬀer the essential guarantees of independence and impartiality as generally recognised …’. Another matter relevant to the accusation of ‘victor’s justice’ was that which related to death sentences. The Australian War Crimes Act 1945 (Cth) provided for penalties of death, even though similar penalties would not have applied to Australian servicemen facing similar charges under existing Australian legislation. Following the adoption of the 1949 Geneva Conventions (which Australia eventually ratiﬁed on 14 October 1958), such a situation could no longer occur: Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

This provision is now incorporated into Australian domestic legislation, with the 2002 amendment of the Criminal Code Act 1995 (Cth) stipulating that the maximum sentence for any such act, whether it constitutes genocide, crimes against humanity or war crimes, is to be life imprisonment. Another particularly contentious example of ‘victor’s justice’, which applied to all of the post-war Allied war crimes trials, was that which related to the defence of ‘superior orders’. For most of World War Two, the military manuals of the Allies had contained provisions that fully allowed for such a defence: ‘members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy’. Then, in 1944, with the prospect of war crimes trials being held, the British, Australian and US military law manuals were radically revised to reﬂect that members of the armed forces were henceforth bound to obey lawful orders only and could not escape liability if, in obedience to a command, they commit acts which violate the laws of war. No such change of policy occurred, however, in the Japanese armed forces. The inviolability of unquestioning obedience to superior authority 37 38 39 40 41 42 43

Geneva Convention III, above n 26, art 84. War Crimes Act 1945 (Cth) s 11(1). Geneva Convention III, above n 26, art 87. See, eg, Criminal Code Act 1995 (Cth) division 268. See, eg, George Dickinson, ‘Japanese War Trials’ (1952) 24 Australian Quarterly 69, 72. UK War Oﬃce, Manual of Military Law (6th ed, 1914) para 443 (emphasis added). UK War Oﬃce, Manual of Military Law (7th ed, 1929) para 443 (amendment 34 of April 1944), quoted in United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) 282. Similar amendments were made to the Australian and US manuals: United States War Department, Rules of Land Warfare (Basic Field Manual 27-10, 1940) para

Michael Carrel

252

remained steadfast right until the very end of the war. Australian courts therefore never accepted any Japanese defence of ‘superior orders’, even though they would often take into account the Japanese military culture of unquestioning obedience to superior orders in mitigation of sentence. In the era of the ICC, no such unfair application of the law would likely feature in any future war crimes trial conducted in Australia. The Rome Statute contains provisions which recognise that, in certain cases, a defence of ‘superior orders’ can apply. These provisions have now been incorporated into Australian legislation as follows: 2.

3.

The fact that a war crime has been committed by a person pursuant to an order of a Government or a superior, whether military or civilian, does not relieve the person of criminal responsibility. It is a defence to a war crime that: a. the war crime was committed by a person pursuant to an order of a Government or a superior, whether military or civilian; and b. the person was under a legal obligation to obey an order; and c. the person did not know that the order was unlawful; and d. the order was not manifestly unlawful.

In considering the extent to which ‘victor’s justice’ may or may not have applied to the Australian war crimes trials conducted between 1945−51, the perception can sometimes overshadow the reality. For the evidence would seem to suggest that the great majority of the 300 war crimes trials conducted by the Australian Army after World War Two appear to have achieved just outcomes. Nevertheless, certain constraining factors did occur from time-to-time that tended to inhibit the concept of justice as it would be recognised today. As the trials program settled down, there were certainly some isolated instances of harsh sentencing and arbitrary justice, but these were invariably picked up and rectiﬁed during the post-trial review and conﬁrmation process. Indeed, by about September 1946, sentencing inconsistencies had largely disappeared from Australian trials. When they did occur, they were usually the result of a particular court’s response to mitigating circumstances, which sometimes resulted in the imposition of a sentence that was lighter than might otherwise have been the case. Nevertheless, by today’s standards at least, justice was occasionally ‘rough’ – and the invariable cause of this resulted from certain key sections of the

44 45

345 (change 1 of 15 November 1944); Australian Military Board, Australian Edition of Manual of Military Law (1941) art 443 (as amended 30 September 1944). See, eg, Australia v Baba Masao (Rabaul, 28 May – 2 June 1947) Case No 60, United Nations War Crimes Commission, Vol XI. Criminal Code Act 1995 (Cth) s 268.116, implementing Rome Statute, above n 33, art 33 (‘Superior orders and prescription of law’).

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

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Australian War Crimes Act 1945 (Cth) and the supporting Regulations. Like its British and American counterparts, this legislation had been drawn up to provide for a quick and eﬃcient means of prosecuting large numbers of defendants, often in relatively remote localities where it might prove diﬃcult to obtain the actual physical presence of witnesses. As it eventuated, the most problematic area of the legislation was that which was contained in s 9(1) of the Act, which laid down the rules of evidence. This particular section allowed a military court to ‘take into consideration any oral statement, or any document appearing on the face of it to be authentic, provided the statement or document appears to the court to be of assistance in proving or disproving the charge’. Thus, rather than having to produce a physical witness, prosecution counsel could instead simply submit an aﬃdavit or witness statement into proceedings (which did not necessarily have to be signed), thereby denying defence counsel the opportunity to cross-examine the witness and to test the evidence. By the standards of the time, which were very much inﬂuenced by the sense of community outrage at the extent of Japanese war crimes committed during the war, this diminution in the normal standards of common law justice was largely considered to have been acceptable. As Sir Gerard Brennan, an exChief Justice of the High Court of Australia who was also the junior associate to Justice Kenneth Townley who presided over the Manus Island trials, has recently remarked on this matter: In terms of absolute justice, of course criticisms can be made; in terms of the standards, the political and moral standards of our community at that time, one can only say that the standards may be criticised, but the conformity of Section 9 with those standards is probably unexceptionable.

The rules of evidence that would apply to any future Australian war crimes trial convened under the Criminal Code Act 1995 (Cth) would certainly be of a higher standard than those which applied under the War Crimes Act 1945 (Cth), reﬂecting as they do the more exacting standards that have been introduced through the Rome Statute. D The Need for Adequate Resources Whilst the perceptions of ‘victor’s justice’ that still linger over the post-war Allied war crimes trials appear to have been accepted by Australia, it is not so clear that 46 47

War Crimes Act 1945 (Cth) s 9(1). Interview with Sir Francis Gerard Brennan AC KBE, who was an associate of Justice Kenneth Townley, President of the Australian War Crimes Court, Manus, New Guinea, 1950-1951 (Sydney, 15 September 2004). A transcript of the interview is held in the Australian War Memorial’s Oral History Collection S03304.

254

Michael Carrel

there is suﬃcient recognition that, to be fully eﬀective, a war crimes trials program needs to be adequately resourced. The Australian Army faced enormous challenges in maintaining the post-war war crimes trials program at an appropriate level. The root cause of this was insuﬃcient resources, both in funding and in personnel – a problem that ended up impacting signiﬁcantly on the overall eﬀectiveness of the program. In the early months following the cessation of hostilities, the Army struggled to meet a multitude of tasks in the forward areas to Australia’s north. These tasks primarily involved the concentrating and disarming of Japanese forces, recovering and interrogating Australian POWs and internees, investigating war crimes, and apprehending suspected war criminals. Adding to the Army’s diﬃculties was the need to complete all tasks during a period of rapid demobilisation. By the middle of 1946, when the eﬀects of demobilisation began to be especially felt, the Army was already struggling to provide the necessary resources to keep the program running on an adequate basis. 1AWCS Singapore would appear to have been under-funded and the personnel posted to that unit seem not to have been adequately supported administratively. Similar resource diﬃculties continued after the Section’s transfer to Hong Kong in 1947. Even when the immediate post-war priority tasks involving surrendered Japanese servicemen had been completed, the job of maintaining the war crimes trials program did not become any easier. As the Army continued to downsize to a peace-time all-volunteer force with a limited manpower ceiling, there were continuing problems in providing suﬃcient personnel with the right skills to properly maintain the trials program. Ideally, the Army should have been able to use skilled criminal investigators to conduct the vitally important preparatory work required to bring a case to trial. But, in the post-war environment, there were widespread skill shortages and the skills required to professionally undertake casework were no longer generally available to the Army. Making the task even more diﬃcult for some of the unskilled investigators was the action taken by Japanese authorities to actively conceal the evidence of war crimes, even to the extent of providing misleading information to draw investigators away from the crime. Although there had been a number of contributing factors leading to the murder of three Australian war crimes investigators in Java in April 1946, it now seems apparent that a major factor was that the trio had been ill-equipped and ill-prepared to conduct its work in such a dangerous environment. Although this incident was the most tragic involving Australian war crimes investigators, in many respects it dramatically underlines the rather ad hoc and under-resourced manner in which the Australian war crimes trials program was conducted. The Australian war crimes trials program was largely sustained by a relatively small and dedicated group of Australian Army Legal Corps (AALC) oﬃcers, who acted as prosecution counsel in virtually all of the trials and as defence counsel in many. But, with the possible exception of the ﬁnal set of trials held on Manus

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

255

Island (which were comparatively well resourced), the AALC was stretched to the limit in maintaining this ambitious program. And in their attempts to keep the program going, the health of some individual members suﬀered. Considerable eﬃciencies would likely have been obtained, had civilian lawyers been brought in to support the program, as was done with the US war crimes trials. However, resource constraints and possibly misplaced pride in wishing to maintain complete self-suﬃciency caused the Australian Army to reject this solution. Overworked they may have been, but this does not seem to have aﬀected the quality of legal opinion provided by members of the AALC. These oﬃcers appear to have been generally well versed in the important concepts of international law that were particularly applicable to the war crimes trials of that period – ‘command responsibility’, ‘superior orders’ and ‘military necessity’. When acting as Judge Advocates to the courts, members of the AALC were able to provide appropriate and consistent advice on these matters, which provided certain legal constraints on many of the court ﬁndings of those trials. Ad hoc war crimes tribunals are always susceptible to resource constraints, but the lessons learnt from Australia’s post-war experiences in this area show that the overall eﬀectiveness of its program was considerably reduced as a result of this. E Vulnerability to Outside Pressures Perhaps the fourth major lesson to emerge from Australia’s post-war war crimes trials program is that such ad hoc programs, as well as being susceptible to resource constraints, are also vulnerable to outside pressures to eventually bring them to an end. We are currently witnessing this with respect to the activities of both the ICTY and ICTR. It was certainly evident with Australia’s own post-war program. That program may possibly have continued on in its faltering manner for a few more years had it not been for US pressure to wind up the Allied B and C Class war crimes trials programs. This pressure had resulted from growing ideological diﬀerences between the Soviet sphere and the West, which by 1947 had become known as the Cold War. The US needed a strong and prosperous Japan as a counter to the extension of Soviet inﬂuence in the Asia-Paciﬁc region and the growth of Japanese communism. From the perspective of the US, the need to rehabilitate Japan and to bring it into the Western fold required an early end to the various Allied war crimes programs. Australia was initially slow to respond to this pressure and for far too long held to an unrealistic hope that MacArthur would permit Australia to conclude its trials program on Japanese soil. It took a change of government in Australia at the end of 1949 for the message to be ﬁnally understood – there comes a time when, for various reasons, the trial of war criminals by the victorious power after a war should come to an end. It was now time for Australia to do so. 48

See, eg, Piccigallo, above n 19, 136.

256

Michael Carrel

VI

Postscript

The postscript to the Australian war crimes trials program, which oﬃcially ended on 11 June 1951, when the ﬁve defendants who had received death sentences at Manus Island were hanged, lasted a further six years. Following the ratiﬁcation of the Allied Peace Treaty with Japan and the end of occupation in April 1952, there was a great deal of pressure on states holding Japanese prisoners to return them to Japan to see out their sentences. Australia, like other states involved, eventually succumbed to this pressure. In late July 1953, the last 165 prisoners being held at the War Criminals Compound on Manus Island were returned to Japan where they were held in a Tokyo prison. Then, in April 1955, after further Japanese pressure, Australia agreed to a system of parole after a prisoner had served 10 years of his sentence. Finally, in May 1956, the Australian Government agreed to a system of Remission and Release. Australia’s last ﬁve prisoners were released on 4 July 1957. Two days later, the key Australia–Japan Commerce Agreement was signed in Tokyo. I would tend to agree with commentators who have claimed that, in the end, ‘there was a superabundance of pragmatism and too little justice’.

49 50

51

Treaty of Peace with Japan, and Protocol, opened for signature 8 September 1951, [1952] ATS 1 (entered into force 28 April 1952). Agreement and Four Exchanges of Notes between the Government of Australia and the Government of Japan on Commerce, opened for signature 8 September 1951, Australia–Japan, [1957] ATS 15 (entered into force 4 December 1957). Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes Prosecutions, 1944–1948 (1997) 199.

11 Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints

Australia’s War Crimes Trials and Sections War Cri mes Secti ons 1 2 3 4

1 AWCS Singapore (Dec 45 - Sep 47) 1 AWCS Hong Kong (Sep 47 - Dec 48) 1 AWCS Manus Island (Apr 50 - Jun 51) 2 AWCS Tokyo (Feb 46 - Jan 50)

Tri al Venues 5 6 7 8 9 10 11 12 13

Morotai (Nov 45 - Feb 46) Wewak (Nov - Dec 45) Labuan (Dec 45 - Jan 46) Rabaul (Dec 45 - Aug 47) Ambon (Jan 46) Darwin (Mar - Apr 46) Singapore (Jun 46 - Apr 47) Hong Kong (Nov 47 - Dec 48) Manus Island (Jun 50 - Apr 51)

Tokyo

2,12

7 5 Morotai

1,11

SINGAPORE

JAPAN

PA C I F I C OCEAN

HONG KONG

Labuan

4

BORNEO Manus I Wewak

9 Ambon

NEW GUINEA

NETHERLANDS EAST INDIES

Darwin

6

10

INDIAN OCEAN AUSTRALIA

3,13 Rabaul

8

257

Chapter 12 Excluding the Undesirable: Interpreting Article 1F(a) of the Refugee Convention in Australia Alison Duxbury*

I

Introduction

For most Australian lawyers the Charter of the International Military Tribunal (IMT) at Nuremberg and the Judgment of that Tribunal are far removed from daily practice. Issues concerning international criminal law rarely appear in Australian domestic courts, notable exceptions being the decisions of the Full Court of the Federal Court in Nulyarimma v Thompson and the High Court in Kruger v Commonwealth and Polyukhovich v Commonwealth. In the 1990s attempts to prosecute individuals for crimes committed in World War Two pursuant to the 1988 amendments to the War Crimes Act 1945 (Cth) were unsuccessful. Furthermore, there have been no prosecutions for grave breaches of the 1949 Geneva Conventions or *

1 2 3 4 5

The author would like to thank Sarah Finnin for her excellent research assistance in preparing this paper. She would also like to thank participants in the workshop, ‘War Crimes and the AAT’ at the Conference: ‘Nuremberg and Transitional Justice: Civilising Inﬂuence or Institutionalised Vengeance?’ for their contributions and comments. (1999) 96 FCR 153. (1997) 190 CLR 1. (1991) 172 CLR 501 (‘Polyukhovich’). See War Crimes (Amendment) Act 1988 (Cth). Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’) (collectively, ‘Geneva Conventions’).

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 259-282.

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Alison Duxbury

Additional Protocol I in the Supreme Courts of the States or Territories, despite the enactment of the Geneva Conventions Act (Cth) in 1957. But this lacuna does not mean that international criminal law has failed to have any inﬂuence on Australian courts and tribunals. Outside the criminal law context, the Federal Court of Australia and the Commonwealth Administrative Appeals Tribunal (the ‘AAT’ or ‘Tribunal’) have developed a signiﬁcant jurisprudence relating to war crimes and crimes against humanity. This jurisprudence involves the interpretation of art 1F of the Convention Relating to the Status of Refugees. Commentators and the United Nations High Commissioner for Refugees (‘UNHCR’) have highlighted that ‘[N]azi genocide and war crimes were fresh in the minds of those governments who drafted the new framework of human rights and refugee law in the immediate post-war years’. This statement is supported by the provisions of the Refugee Convention dealing with inclusion and exclusion. According to art 1A(2) a person is owed protection obligations if that person has a well founded fear of religious, racial or political persecution, or persecution by reason of their membership of a particular social group, if they were to return to their country of nationality. However art 1F of the Refugee Convention, known as the ‘exclusion clause’, states that: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as deﬁned in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; 6

7 8

9

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’). Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’). Chaloka Beyani, Joan Fitzpatrick, Walter Kalin and Monette Zärd, ‘The Editorial Group: Introduction’ (2000) 12 International Journal of Refugee Law 1. The UNHCR has noted that ‘[a]t the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of States that war criminals should not be protected.’ See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 (Geneva, January 1992), para 148 (‘UNHCR Handbook’), available at . Refugee Convention, above n 7, Article 1A(2); Protocol Relating to the Status of Refugees, opened for signature 16 December 1966, 606 UNTS 267, art 1(2) (entered into force 4 October 1967).

12

Interpreting Article 1F(a) of the Refugee Convention in Australia

261

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

Broadly the aim of this provision is to exclude the undesirable or undeserving from the beneﬁts of claiming refugee status. Thus, Bastarache J in the Supreme Court of Canada stated that: the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona ﬁde refugees at the time of their claim for refugee status.

Bastarache J emphasised that ‘those who are responsible for the persecution which creates refugees should not enjoy the beneﬁts of a Convention designed to protect those refugees’. These comments have been quoted with approval by judges of the Federal Court of Australia. Furthermore, art 1F can be seen to ‘protect public safety and security in receiving countries’, such as Australia. The UNHCR Handbook emphasises that ‘[t]here was … a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.’ In SAH and Minister for Immigration and Multicultural and Indigenous Aﬀairs, Deputy President Forgie claimed that this rationale was applicable to paragraph (a) as well as paragraph (b) of art 1F. Article 1F also preserves the moral integrity of the international protection regime. Hathaway has written that the decision to exclude ‘even if they are genuinely at risk of persecution … is rooted in both a commitment to the promotion of an international morality and a pragmatic recognition that states are unlikely to agree to be bound 10 11 12

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Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982, 1024. Ibid 1028–9. WAKN v Minister for Immigration and Multicultural and Indigenous Aﬀairs (2004) 138 FCR 579, 591 (per French J) (‘WAKN’); SRYYY v Minister for Immigration and Multicultural and Indigenous Aﬀairs (2005) 86 ALD 511, 520 (‘SRYYY’). Commonwealth of Australia, ‘Persons Deemed Unworthy of International Protection (Article 1F): An Australian Perspective’ (Paper Prepared as a Contribution to the UNHCR’s Expert Roundtable Series), reproduced in Commonwealth of Australia, Interpreting the Refugees Convention: An Australian Contribution (2002) 21, 23. UNHCR Handbook, above n 8, para 148. [2002] AATA 263 (‘SAH’). SAH [2002] AATA 263, para 40, referring to the decision of French J in Dhayakpa v Minister for Immigration and Ethnic Aﬀairs (1995) 62 FCR 556, 565 (‘Dhayakpa’). Commonwealth of Australia, ‘Persons Deemed Unworthy of International Protection (Article 1F): An Australian Perspective’, above n 13, 23.

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by a regime that requires them to protect undesirable refugees.’ While it is not necessary to choose between these rationales, a preference for one approach over another may inﬂuence the way in which the exclusion clause is interpreted. In Australia it falls upon a delegate of the Minister for Immigration and Multicultural Aﬀairs to determine if an applicant is entitled to a protection visa and whether that applicant falls within the ambit of art 1F. Section 500(1)(c) of the Migration Act 1958 (Cth) provides that the AAT may review a decision to refuse to grant a protection visa where art 1F has been applied. In a number of cases where the delegate’s decision has been aﬃrmed by the AAT, the applicant has appealed to the Federal Court on the basis that the AAT committed an error of law. Through this procedure a signiﬁcant jurisprudence has emerged in Australia on issues relating to war crimes and crimes against humanity as a result of an administrative rather than a criminal process. These decisions have assumed particular importance as a result of the 2005 judgment of the Full Court of the Federal Court in SRYYY. In that case the Full Court was called upon to clarify the appropriate international instrument for determining whether there are ‘serious reasons for considering that’ an international crime has been perpetrated. As the number of instruments dealing with such crimes proliferates so does the possibility that diﬀerent deﬁnitions may be used to establish whether a war crime or crime against humanity has been committed. This chapter will explore the jurisprudence of the Federal Court and the AAT in relation to art 1F(a), focussing on the consequences of utilising particular deﬁnitions of war crimes and crimes

18

19

20

21

22 23

James C. Hathaway (ed), Reconceiving International Refugee Law (1997) 214, quoted in Matthew Zagor, ‘Persecutor or Persecuted: Exclusion under Article 1F(A) and (B) of the Refugees Convention’ (2000) 23 UNSW Law Journal 164, 167. For example, Bliss has written that: The exclusion clauses play a crucial role in international refugee law. They exclude from protection those not deserving refugee status, and so protect genuine refugees, the population of the receiving country, and the institution of refugee protection. Michael Bliss, ‘“Serious Reasons for Considering”: Minimum Standards of Procedural Fairness in the Application of the Article 1F Exclusion Clauses’ (2000) 12 International Journal of Refugee Law Special Supplementary Issue 92, 131. For an overview of the statutory provisions in the Migration Act 1958 (Cth), see John Vrachnas, Kim Boyd, Mirko Bagaric and Penny Dimopoulos, Migration and Refugee Law: Principles and Practice in Australia (2005) 178–89. In cases where an applicant is not excluded on the basis of art 1F or art 33(2) of the Refugee Convention, the Refugee Review Tribunal has jurisdiction to undertake a review on the merits of a decision to refuse an applicant refugee status: Migration Act 1958 (Cth) s 411. See Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). (2005) 86 ALD 511.

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against humanity contained in international legal documents. The choice of a particular international instrument may have signiﬁcance for three areas: determining whether an act can be classiﬁed as a war crime or a crime against humanity, the range of defences available, and the type of criminal responsibility that would lead to the conclusion that there are ‘serious reasons for considering’ that a crime has been perpetrated as mandated by art 1F. II

Choosing the Appropriate International Instrument A The Range of Available Deﬁnitions

The importance of a correct interpretation of art 1F cannot be overstated. As is highlighted by Zagor, ‘[t]he consequences of being excluded might be grave indeed to an asylum seeker, potentially resulting in a return to persecution and possibly death.’ A failure to apply the correct deﬁnition or to accurately identify the elements of the crime could amount to a jurisdictional error and thus constitute a reason for setting aside the original decision. Despite these consequences, the Refugee Convention does not delineate the ambit of the crimes that would result in exclusion. Article 1F(a) provides that the terms ‘war crimes’, ‘crimes against humanity’ and ‘crimes against peace’ are to be deﬁned in accordance with ‘the international instruments drawn up to make provision in respect of such crimes’. At the time that the Refugee Convention was adopted, the choice of instruments containing deﬁnitions of war crimes or crimes against humanity was limited. Each of the four Geneva Conventions, adopted in 1949, include a pro24

25 26

The term ‘crime against peace’ is not included in this study as it has not been interpreted in art 1F jurisprudence in Australia. In its 2002 study on exclusion in the refugee context, the Lawyers Committee for Human Rights ‘found that crimes against peace have rarely, if ever, been invoked by decision-makers’: Lawyers Committee for Human Rights, Refugees, Rebels and the Quest for Justice (2002) 129. Pejic argues that as the crime of aggression has yet to be deﬁned in an international treaty, art 1F(a) as it relates to such crimes cannot yet be applied: Jelena Pejic, ‘Article 1F(a): The Notion of International Crimes’ (2000) 12 International Journal of Refugee Law Special Supplementary Issue 11, 15. Matthew Zagor, ‘No Mean Feat to Walk the Line between Refugees and Criminals’, Sydney Morning Herald (Sydney), 8 December 2005. By operation of ss 474 and 483 of the Migration Act 1958 (Cth), no appeal lies from a decision of the AAT where it is classiﬁed as a ‘privative clause decision’. The jurisprudence concerning privative clauses in Australia is complicated, and was recently discussed by the High Court in the refugee law context in Plaintiﬀ S157/2002 v Commonwealth (2003) 211 CLR 476. The High Court held that a decision that contained a jurisdictional error was not protected by the privative clause in the Migration Act 1958 (Cth). For an example of the operation of this concept in the art 1F context, see the discussion in SHCB v Minister for Immigration and Multicultural and Indigenous Aﬀairs [2003] FCA 229, aﬃrmed on appeal to the Full Court of the Federal Court: (2003) 133 FCR 561 (‘SHCB’).

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vision setting out the acts that would amount to grave breaches in international armed conﬂict and would therefore be subject to mandatory penal provisions in a High Contracting Party’s legal system. More speciﬁcally, art 6 of the Charter of the IMT at Nuremberg set out deﬁnitions of crimes against peace, war crimes and crimes against humanity for the purposes of prosecuting suspected Nazi war criminals at the end of World War Two. War crimes were deﬁned in art 6(b) as ‘violations of the laws or customs of war’, followed by a non-exhaustive list of prohibited acts. A crime against humanity was described as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Charter of the International Military Tribunal for the Far East (IMTFE) contained a similar description of crimes against humanity, but only a very brief deﬁnition of ‘Conventional War Crimes’ as ‘violations of the laws and customs of war’. Other treaties, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide would also have been relevant given that genocide is recognised as a type of crime against humanity. Article 1F(a) is not limited to treaties, and thus the drafters of the Refugee Convention would have been aware of pertinent General Assembly Resolutions, as well as the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal adopted by the International Law Commission. Since 1951 the number and range of potential deﬁnitions for such crimes has increased rapidly. The Statutes for the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Statute for the 27

28

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31 32

Geneva Convention I, above n 5, art 50; Geneva Convention II, above n 5, art 51; Geneva Convention III, above n 5, art 130; and Geneva Convention IV, above n 5, art 147. Annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279 (‘London Agreement’ and ‘Nuremberg Charter’). Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, amended 26 April 1946, TIAS 1589, 4 Bevans 20, art 5. Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’). In SRYYY, the Full Court of the Federal Court described genocide as ‘a particular species of crime against humanity’: (2005) 86 ALD 511, 518. For example, GA Res 95 (I), UN Doc A/RES/95 (I), 11 December 1946, cited in SRYYY (2005) 86 ALD 511, 518. Yearbook of the International Law Commission (1950) Vol II.

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Special Court for Sierra Leone and, most importantly, the Rome Statute of the International Criminal Court all contain similar, but not necessarily identical, deﬁnitions of war crimes and crimes against humanity. In 1977 two Additional Protocols were added to the Geneva Conventions – Additional Protocol I extends protection in times of international armed conﬂict while Additional Protocol II deals with internal armed conﬂict. The publication arising from a 1999 conference on the exclusion clause in the Refugee Convention also includes art 38 of the Convention on the Rights of the Child, dealing with the participation and recruitment of child soldiers, as a relevant international instrument. These documents reﬂect advances in customary international law, particularly in the ﬁeld of international humanitarian law. But by increasing the choice of deﬁnitions these same developments add to the diﬃculty in determining the reach of art 1F(a). As was highlighted by the Full Court of the Federal Court in SRYYY, the choice of instrument ‘can have a signiﬁcant impact on whether or not those acts constitute the commission of a crime against humanity and, more particularly a “war crime.”’ This in turn will dictate whether an applicant is to be excluded from refugee status. B

Potential Limits on the Choice of International Instrument

The growing body of international instruments containing deﬁnitions of crimes against humanity and war crimes raises the question whether decision-makers are limited to instruments that were in existence at the time that the Refugee Convention was adopted when interpreting the terms in art 1F(a). The AAT and 33

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Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to SC Res 827 (1993), UN Doc S/RES/827 (1993) (adopted 25 May 1993, as amended 19 May 2003) (‘Statute of the ICTY’); Statute of the International Criminal Tribunal for Rwanda, annexed to SC Res 955 (1994), UN Doc S/RES/955 (1994) (adopted 8 November 1994, as amended 27 October 2003) (‘Statute of the ICTR’); Statute of the Special Court for Sierra Leone, annexed to Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed 16 January 2002, reproduced in Appendix II to Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, UN Doc S/2002/246, 8 March 2002, Annex (‘Statute of the Special Court for Sierra Leone’); Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’). Additional Protocol I, above n 6; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘Additional Protocol II’). Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Peter J van Krieken (ed), Refugee Law in Context: The Exclusion Clause (1999) 149. SRYYY (2005) 86 ALD 511, 528.

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the Federal Court have rejected such an approach. In SAH, Deputy President Forgie in the AAT recognised that in 1951 the most comprehensive deﬁnition of such crimes was contained in the London Agreement of 8 August 1945 and the Nuremberg Charter, but declined to limit her reasoning to such deﬁnitions. Instead, the Deputy President canvassed the provisions of a number of instruments, including Common Article 3 of Geneva Convention III, art 5 of the Statute of the ICTY, and the relevant provisions of the Rome Statute. In SRNN, Deputy President Chappell utilised the deﬁnitions in recent international instruments, speciﬁcally the Statute of the ICTY and the Rome Statute. Despite increasing reliance on statutes of international criminal tribunals, decision-makers are not limited to such treaties or statutes. When deﬁning a crime against humanity in Re W97/164, the respondent sought to rely upon a number of instruments, including the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission. Although President Mathews in the AAT described the Draft Code as lacking the ‘status of international instrument as referred to in Article 1F(a)’ the President utilised Hathaway’s pronouncement that it oﬀered a ‘conceptual framework for the deﬁnition of crimes within this clause’ and consequently referred to the ILC’s commentary in her decision. In listing the potential deﬁnitions, the recent decision of the Full Court of the Federal Court in SRYYY does not appear to draw a distinction between treaties and other international documents for the purposes of art 1F(a), thus expanding the choice of instruments available to a decision-maker. The AAT has also relied upon international case law, including the ICTY’s decision in the Tadic Case, to explain the deﬁnitions contained in relevant international instruments. Australian case law involving refugee applicants from Nepal, Afghanistan, Sri Lanka and Iraq has continued to refer to a wide range of documents containing deﬁnitions of war crimes and crimes against humanity, removing any doubt that decision-makers are restricted to international instruments that were in existence at the time the Refugee Convention was adopted. 38 39 40 41

42 43 44

SAH [2002] AATA 263, para 46. Ibid paras 47–54. SRNN and Department of Immigration and Multicultural Aﬀairs [2000] AATA 983, para 74 (‘SRNN’). International Law Commission, ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ in Yearbook of the International Law Commission 1996 (1996) Vol II, Part Two, 17-56. Re W97/164 and Minister for Immigration and Multicultural Aﬀairs (1998) 51 ALD 432, 443 (‘Re W97/164’). Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT-94-1-A (2 October 1995) (‘Tadic Case’). See, eg, Re W97/164 (1998) 51 ALD 432, 445.

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Another method of limiting decision-makers’ choices is to conﬁne them to the deﬁnitions contained in international instruments in existence at the time that the alleged conduct occurred. This issue was discussed in SRYYY by the Full Court of the Federal Court, a case that clariﬁed a number of issues concerning the correct approach to interpreting art 1F. SRYYY concerned a former member of the Sri Lankan army who had been involved in the conﬂict against the Tamil Tigers. He applied for a protection visa in Australia on the basis that if he returned to Sri Lanka he would be killed. During the application process he disclosed that he had been involved in interrogating Tamil civilian detainees, including children, and that he had assaulted and threatened the detainees in order to obtain information. The Minister’s delegate refused to grant the protection visa on the grounds that there were serious reasons for considering that the appellant had been ‘complicit in the crimes against humanity and war crimes of the Sri Lankan Army’. The AAT aﬃrmed the delegate’s decision and the case was appealed to the Federal Court on the basis that the AAT had committed an error of law. On appeal from a single judge of the Federal Court, one of the questions that the Full Court had to consider was whether the AAT had fallen into a jurisdictional error in applying the deﬁnitions contained in the Rome Statute, given that the Statute had not come into force at the time that the alleged conduct occurred. It was argued that the use of the relevant provisions in that Statute would oﬀend the principle of nullum crimen sine lege. The Full Court of the Federal Court rejected any requirement that an instrument had to be adopted or in force at the time that the alleged crime took place. But the Full Court also acknowledged that the crimes listed in the Rome Statute had ‘crystallised into crimes in international law’ at the date of adoption of the Statute, thus removing concerns as to retrospective criminalisation of conduct. This acknowledgement leaves open the possibility that questions concerning the retrospective operation of criminal law could arise if it is alleged that an applicant committed an act prior to it being recognised as a crime in customary international law. Although the Court rejected the idea that an international instrument had to be in existence at the time that an alleged crime took place, it recognised that a particular instrument may be more appropriate than others in determining criminal liability depending on where an act had taken place. For example, the London Charter would be the most appropriate document for determining whether an international crime had been committed during World War Two, whereas the Statutes of the ICTY and ICTR would be suitable for dealing with crimes com45 46 47 48

SRYYY (2005) 86 ALD 511, 511. Ibid 513. Ibid 531. Ibid 535. Moreover, although the Rome Statute, above n 33, was not in force when the crime was alleged to have been committed in SRYYY, the Court acknowledged that it had already been adopted by the majority of states at the Rome Conference: at 532.

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mitted in the former Yugoslavia and Rwanda respectively. But this does not mean that a decision-maker is limited to statutes or treaties that have arisen as a direct result of any one conﬂict or situation. The Court held that art 1F does not purport to apply to persons who have committed a crime under an international instrument, as the international instrument is ‘merely the source of the deﬁnition according to which a person’s exclusion from the Refugees Convention is to be tested.’ Consequently, although the armed conﬂict in Sri Lanka has not been the subject of any particular international instrument, the general criterion in art 1F(a) was applicable, and the deﬁnitions contained in the Rome Statute could be utilised to determine whether there were serious reasons for considering that a crime had been committed. The Full Court’s reliance upon the Rome Statute is in accordance with its desire to ensure that decision-makers do not use out-of-date deﬁnitions in determining the criminality of a refugee applicant’s conduct. It also recognises the signiﬁcance of this instrument in domestic law following the implementation of its provisions in Australia via the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth). III

Deﬁning War Crimes and Crimes against Humanity

The decision of the Full Court in SRYYY does not dictate that decision-makers have to rely on any particular international instrument, but rather gives them the choice of a number of relevant documents to determine the ambit of war crimes and crimes against humanity. However, the Court was clear in deciding that a delegate (or the AAT on review) needs to give careful consideration to each of the elements in the chosen deﬁnition. A failure to do so may constitute a reviewable error as is demonstrated by the ﬁnal decision in SRYYY whereby the Full Court found that the AAT erred by not addressing the essential elements of a crime against humanity. Speciﬁcally, the AAT appeared to have confused the elements of a crime against humanity and a war crime in ﬁnding that the ‘Sri Lankan army was involved in systematic persecution of a civilian group’ (as required for a crime against humanity) and thus concluding that there were serious reasons for considering that a war crime had been committed by the applicant.

49 50 51 52 53 54 55

Ibid 534. Ibid 533. Ibid 534. Ibid 534. Ibid 540. Ibid 541. Ibid 540.

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When deﬁning war crimes or crimes against humanity for the purposes of art 1F(a), two issues of signiﬁcance have emerged: the consequence of the distinction between internal and international armed conﬂict in determining whether a war crime has been committed, and the ambit of the term ‘crime against humanity’. In relation to the ﬁrst point, a question has arisen whether a war crime can be committed in an internal armed conﬂict. The 1949 Geneva Conventions, with the exception of Common Article 3, only apply to international armed conﬂicts. Common Article 3, dealing with armed conﬂicts ‘not of an international character’, is not subject to the grave breaches regime whereby a state must undertake to enact provisions penalising certain conduct. More recently, the importance of the distinction in the Geneva Conventions between international and non-international armed conﬂicts has decreased with art 8 of the Rome Statute criminalising conduct that has occurred in internal armed conﬂicts that do not constitute ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’. Thus, the choice of deﬁnition has signiﬁcant consequences where it is alleged that a refugee applicant has committed a crime in a civil war context. The question was considered by the AAT in SRNN, another case involving an applicant from Sri Lanka. The AAT examined recent developments in international criminal law, including the adoption of the Rome Statute and the establishment of the ICTY and ICTR, and came to the conclusion that the deﬁnition of a war crime had been extended to encompass acts committed during an internal armed conﬂict, such as the situation in Sri Lanka. This was aﬃrmed in SRYYY when the Full Court of the Federal Court agreed that since World War Two one of the most signiﬁcant changes in the scope of individual criminal responsibility has been the acceptance that an individual may be responsible for war crimes committed in internal armed conﬂict. Thus, the Full Court has ensured that the Australian jurisprudence is in accordance with international legal developments on the deﬁnition of war crimes. The term ‘crime against humanity’ has been examined in a number of art IF cases in both the AAT and the Federal Court. The High Court has also considered the ambit of crimes against humanity in a case involving a suspected World War Two war criminal brought pursuant to the 1988 amendments to the War Crimes Act 1945 (Cth). In that case Deane J described the term as ‘a convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed in international law but which may not involve a war crime in the strict sense by reason of lack of con-

56 57 58 59

Additional Protocol II does not contain a grave breaches provision: above n 34. Rome Statute, above n 33, art 8(2)(c)–(f ). SRNN [2000] AATA 983, para 63. SRYYY (2005) 86 ALD 511, 527.

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nexion with actual hostilities’. In deﬁning crimes against humanity, two questions have arisen in art 1F case law – whether a nexus is required between the act and an armed conﬂict, and secondly, the meaning of the term civilian population or civilian group. The Nuremberg Charter limited the ambit of the IMT to crimes against humanity that were committed ‘before or during the war’. The Statute for the ICTY also deﬁnes a crime against humanity as an act that is ‘committed in an armed conﬂict, whether international or internal in character, and directed against the civilian population’. However, the nexus is removed in the Rome Statute which requires that a crime against humanity be ‘committed as part of a widespread or systematic attack directed against any civilian population’. All three deﬁnitions have been referred to by members of the AAT. The AAT has consistently declined to limit a crime against humanity to an act committed during an armed conﬂict, with President Mathews stating in W97/164 that the limitation in the Nuremberg Charter was designed to restrict the jurisdiction of the IMT rather than the ambit of the crime. Instead, she quoted the view of the Appeals Chamber of the ICTY in Tadić Case: It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conﬂict. Indeed, as the prosecutor points out, customary international law may not require a connection between crimes against humanity and any conﬂict at all.

In any event President Mathews found that the situation in Burma, the country where the applicant was alleged to have committed the relevant acts, amounted to an internal conﬂict. The AAT’s approach in removing the nexus between 60 Polyukhovich (1991) 172 CLR 501, 596. See also comments on the Nuremberg Charter, art 6(c): at 669 (Toohey J). 61 Nuremberg Charter, above n 20, art 6(c). 62 Statute of the ICTY, above n 33, art 5. 63 Rome Statute, above n 33, art 7. The nexus between an armed conﬂict and a crime against humanity is also omitted from the Statute of the Special Court for Sierra Leone, above n 33, art 2. 64 See, for example: Re W97/164 (1998) 51 ALD 432, 444–5 (Nuremberg Charter); SRNN [2000] AATA 983, para 55 (Nuremberg Charter), para 60 (Rome Statute and ICTY Statute); SAH [2002] AATA 263, paras 48-49 (Nuremberg Charter), para 52 (ICTY Statute), para 53 (Rome Statute); SAL and Minister for Immigration and Multicultural and Indigenous Aﬀairs [2002] AATA 1164 para 31 (Nuremberg Charter), para 35 (ICTY Statute), para 36 (Rome Statute) (‘SAL’); SRHHH and Minister for Immigration and Indigenous Aﬀairs [2005] AATA 1020, para 179 (Nuremberg Charter and Rome Statute). 65 Re W97/164 (1998) 51 ALD 432, 445. 66 Ibid 445, quoting Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT-94-1-A (2 October 1995) para 141. 67 Re W97/164 (1998) 51 ALD 432, 446.

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crimes against humanity and an armed conﬂict is appropriate given developments in international criminal law. However, following the approach of the Full Court in SRYYY, the linkage may still be relevant when a decision-maker appropriately relies upon the Nuremberg Charter or the Statute of the ICTY in situations where it is alleged that an applicant has committed a crime that falls within the ambit of these instruments. While the potential for an allegation to arise that an applicant for refugee status has committed a crime during World War Two is now minimal, it is possible for an applicant to arrive from the former Yugoslavia. Another issue that has arisen in deﬁning a crime against humanity is the correct meaning of the term ‘civilian population’ or ‘civilian group’ given that a crucial element of the crime is that the act is directed against civilians. In a case that was heard prior to the adoption of the Rome Statute, President Mathews in the AAT stated that there must be a ‘systematic pattern of persecution aimed at members of an identiﬁable race or group’ in order to constitute a crime against humanity. She repeated this deﬁnition in Re N96/1441, a case involving a former member of the Lebanese armed forces who it was alleged had been involved in the torture of civilians, in particular former members of a Christian militia group. Counsel for the applicant argued that the actions had not been committed against Lebanese civilians as the relevant people were ‘members of an armed political organisation opposed to the aims of the government’. President Mathews distinguished civilians from members of the military and determined that although the victims had been members of a Christian militia group involved in the civil war in the 1980s, by the time that the members had been detained and persecuted the military organisation had been disbanded and its members could be considered Lebanese civilians. Thus, the victims of the torture in this case were part of the civilian population. The requirement that civilians need to be part of an identiﬁable race or group would now appear to be at odds with the deﬁnition in the Rome Statute, which requires that the acts are directed against a ‘civilian population’ per se, rather than an identiﬁable group within a civilian population. It would only be necessary to prove such a condition in international criminal law if it was alleged that an applicant had committed genocide or persecution as a type of crime against humanity. 68 69 70 71 72

Ibid 445. Re N96/1441 and Minister for Immigration and Multicultural Aﬀairs (1998) 51 ALD 459, 464. Ibid 463. Ibid 464. The deﬁnition of genocide requires that the listed actions be ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’: Genocide Convention, above n 30, art 2; Rome Statute, above n 33, art 6. The deﬁnition of persecution as an element of crimes against humanity requires that the persecution be directed against ‘any identiﬁable group or collectivity on political, racial, national,

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In distinguishing between civilians and members of the military, a further question has arisen whether police oﬃcers should be viewed as civilian or military targets. In a case decided in 1998, President Mathews conﬁrmed that the civilian population includes police oﬃcers as non-military personnel. This was subsequently aﬃrmed in a case involving a Nepalese applicant who was active in the Maoist movement. In determining whether there were serious reasons for considering that a crime against humanity had been committed, the applicant’s submission that the police force was not part of the civilian population by reason of the role that it played in maintaining order in Nepal was rejected by Deputy President Purvis. In any event there was evidence that the applicant had been involved in other acts of violence against the Nepalese civilian population, such as landowners and bureaucrats, which would bring his actions within the deﬁnition of a crime against humanity. Consideration of these issues demonstrates that decision-makers and bodies of review in Australia have been forced to engage with the detail of international criminal law in interpreting art 1F(a). IV The Availability of Defences to Article 1F(a) Crimes The international instrument chosen for determining the applicant’s potential criminality not only impacts on the deﬁnition of the relevant crimes, but may also dictate the availability of any defences. The importance of a possible defence in determining whether a person was excluded from refugee status by virtue of art 1F(a) was aﬃrmed by the Full Court of the Federal Court when it stated that it cannot be said that a person whose criminal responsibility has been excluded by a relevant defence has nonetheless committed an oﬀence. International criminal law recognises a range of defences to crimes within its ambit, including self-defence, superior orders, duress and intoxication or mental illness, although international instruments have not always treated the defences identically. The most obvious diﬀerences amongst international instruments arise in relation to the defence of superior orders. Article 33(1) of the Rome Statute provides that superior orders can be a defence to a war crime as follows:

73 74 75 76 77

ethnic, cultural, religious, gender … or other grounds’: Rome Statute, above n 33, art 7(1)(h). Re W98/45 and Minister for Immigration and Multicultural Aﬀairs [1998] AATA 948, para 48. SRDDDD and Minister for Immigration and Multicultural and Indigenous Aﬀairs [2004] AATA 150 (‘SRDDDD’). Ibid para 41. Ibid. SRYYY (2005) 86 ALD 511, 544.

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The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.

Paragraph 2 provides that ‘orders to commit genocide or crimes against humanity are manifestly unlawful’ thus excluding these crimes from the ambit of the defence. This provision can be distinguished from the Nuremberg Charter, which provided that the existence of superior orders was not a defence to a listed crime, although it could be considered in sentencing. The same approach is taken in the Statutes of the ICTY, the ICTR, and the Special Court for Sierra Leone. The absolute prohibition on using superior orders as a defence at Nuremberg led defendants to argue a combination of superior orders and duress or compulsion. The ICTY has also considered the potential overlap between the defences of superior orders and duress in the case of Prosecutor v Erdemović, where Judge Cassese in the Appeals Chamber explained the situation as follows: duress is commonly raised in conjunction with superior orders. However, there is no necessary connection between the two. Superior orders may be issued without being accompanied by any threats to life or limb. In these circumstances, if the superior order is manifestly illegal under international law, the subordinate is under a duty to refuse to obey the order. If, following such a refusal, the order is reiterated under a threat to life or limb, then the defence of duress may be raised, and superior orders lose any legal relevance. Equally, duress may be raised entirely independently of superior orders, for example, where the threat issues from a fellow serviceman. Thus, where duress is raised in conjunction with manifestly unlawful superior orders, the accused may only have a defence

78

79 80 81

Nuremberg Charter, above n 28, states in art 8 that: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Statute of the ICTY, above n 33, art 7(4); Statute of ICTR, above n 33, art 6(4); and Statute of the Special Court for Sierra Leone, above n 33, art 6(4). William A. Schabas, ‘Obeying Superior Orders: Who is Responsible?’ in Genocide in International Law: The Crime of Crimes (2000) 325–33. Prosecutor v Erdemović ( Judgment), Case No IT-96-22-A (7 October 1997) (‘Erdemović’).

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In Erdemović the majority of the Appeals Chamber of the ICTY refused to accept that duress could operate as a full defence where it is alleged that a defendant has committed war crimes or crimes against humanity. However, this position is now at odds with art 31(1)(d) of the Rome Statute, which provides that a person will not be criminally responsible for crime within the jurisdiction of the ICC if: The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.

In situations where superior orders are not recognised as a defence, for example where the act constitutes a crime against humanity or genocide, then the only possible recourse is for a defendant to rely upon duress. The tendency to merge duress and superior orders in the international case law is replicated in domestic decisions dealing with art 1F. In SHCB, the Full Court of the Federal Court stated that ‘[t]he defence of obedience to higher orders will normally only apply where there are imminent real and inevitable threats to a subordinate’s life. There is an element of moral choice in relation to the defence’. This suggestion of the need to demonstrate a moral choice reﬂects the language of the Nuremberg Tribunal when it held that ‘[t]he true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.’ It is also in accordance with the Canadian Supreme Court decision of Finta, where it was stated that:

82 83 84 85

86

Ibid (Separate and Dissenting Opinion of Judge Cassese) para 15 (emphasis in original). Ibid (Separate and Dissenting Opinion of Judge Cassese) para 19; ( Joint Separate Opinion of Judge McDonald and Judge Vohrah) para 88. SHCB (2003) 133 FCR 561, 567, citing Re W97/164 (1998) 51 ALD 432, 449. United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (1947) Vol 22, 203rd day, 466 (‘Trial of Major War Criminals’). R v Finta (1994) 1 SRC 701.

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The element of moral choice was, I believe, added to the superior orders defence for those cases where, although it can readily be established that the orders were manifestly illegal and that the subordinate was aware of their illegality, nonetheless, due to circumstances such as compulsion, there was no choice for the accused but to comply with the orders. In those circumstances the accused would not have the requisite culpable intent.

Unsurprisingly, domestic bodies have utilised the interpretation of these defences by international criminal tribunals in their decisions. Applicants for refugee status have often argued several defences together where it is alleged that their actions have fallen within the ambit of art 1F. For example, in N1998/532 a Sierra Leonean applicant for refugee status raised duress, superior orders and intoxication on the basis that he had been given drugs, in relation to allegations that he committed rape and murder during the conﬂict. The AAT dealt with the ﬁrst two defences together and found that although the applicant was forced to join the rebel forces, there was no evidence that he had been given orders to commit the speciﬁc criminal acts and in particular they ‘were not committed under duress’. Duress could not be argued in relation to the applicant’s lack of choice in joining the rebels, but had to operate in relation to the particular criminal acts. On the defence of intoxication, the AAT accepted medical evidence to the eﬀect that ‘the taking of the drug was not such as to aﬀect the ability of the applicant to appreciate the nature and consequences of his behaviour.’ This is similar to the test required by the Rome Statute which provides that in order for intoxication to operate as a defence the alcohol or drugs must have destroyed ‘that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law’. As the Rome Statute sets out the elements of each defence to the listed crimes independently, in the future it would appear appropriate to argue any relevant defences separately. Such was the case in Re VAX and Minister for Immigration and Multicultural and Indigenous Aﬀairs, where the AAT treated duress and superior orders as independent defences. In Re VAX it was alleged Ibid 838. This passage has been quoted in N1998/532 and Minister for Immigration and Multicultural Aﬀairs [1999] AATA 116, para 82 (‘N1998/532’); Re W97/164 (1998) 51 ALD 432, 450. 88 N1998/532 [1999] AATA 116. 89 Ibid para 85. 90 Ibid. 91 Ibid. 92 Rome Statute, above n 33, art 31(1)(b). 93 [2005] (Unreported, Administrative Appeals Tribunal, Deputy President C.R. Wright, 16 February 2005), para 19 (‘Re VAX’). 87

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that a former member of the Phalangist Militia had been involved in an order to kill civilians in the Sabra/Shatilla Palestinian camps. The applicant disputed the nature of his involvement and argued that he was simply following orders because he feared for his own life and for the safety of his family. The AAT, relying upon the deﬁnition of duress in art 31(1) of the Rome Statute, found that the evidence did not support the conclusion that the applicant had suﬀered threats which would amount to duress. The Tribunal treated the defence of superior orders separately, and, in accordance with art 33 of the Rome Statute accepted that as the order to kill civilians in the camps was manifestly unlawful the defence was not available. The tendency to merge the defences of superior orders and duress in earlier cases is understandable given the rejection of superior orders as a defence in many international instruments. In the future it is likely that the decision in SRYYY and the provisions of the Rome Statute will necessitate decisionmakers and review bodies considering the elements of each defence individually. V

Demonstrating Individual Responsibility for Criminal Acts

The IMT at Nuremberg ﬁrmly established the principle of individual responsibility for international crimes with the much quoted words ‘crimes against International Law are committed by men not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced’. The principle of individual responsibility has subsequently been recognised in the Statutes of the ICTY, the ICTR, and the ICC. The UNHCR has stated that in order for a person to be excluded pursuant to art 1F ‘individual responsibility must be established.’ Not only have Australian executive and judicial bodies had to deal with the meaning of the terms crimes against humanity and war crimes and the available defences, they have also had to determine the circumstances in which criminal responsibility will arise for an applicant. Does a person have to directly participate in a war crime or crime against humanity in order for art 1F(a) to operate? Are other forms of responsibility such as accessorial liability recognised in international criminal law? Furthermore, is liability for the actions of subordinates under the principles of command responsibility suﬃcient to exclude a person from refugee status pursuant to art 1F? 94 95 96 97 98 99

Ibid. Ibid para 43. Ibid para 41. Trial of the Major War Criminals, above n 83, Vol 22, 203rd day, 447. ICTY Statute, above n 33, art 7; ICTR Statute, above n 33, art 6; Rome Statute, above n 33, art 25. UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, para 18 (‘UNHCR Guidelines’) available at .

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Where it is alleged that the person is directly responsible for the relevant crimes there are few diﬃculties in applying the international criminal law principles. However, in international criminal law it is not necessary to prove that an applicant has directly engaged in an act in order to bear responsibility. Article 6(c) of the Nuremberg Charter provided that ‘[l]eaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.’ In SAL, the AAT acknowledged the relevance of other forms of responsibility apart from direct responsibility in the Rome Statute and stated that: [The applicant] must, however, have aided, abetted or otherwise assisted in … the commission or attempted commission [of the act] or have contributed to its commission or attempted commission by a person acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.

A number of Australian cases have involved refugee applicants supplying information to superiors about a particular person, which has later led to a war crime or crime against humanity being committed against that person by a third party. For example in AXIOB, the AAT found that a Sri Lankan member of United National Party was ordered to obtain information about terrorist activities. This involved reporting on individuals who would later be tortured or killed by the Army or security forces. In SAL, a member of Khedimati Atela’ at-I Dawlati (KHAD) in Afghanistan described his job as interviewing mullahs, administrators and legislators in his local area and subsequently reporting the results of these interviews to his superiors. In both cases there was strong evidence that the applicants were aware that by supplying information to their superiors it was likely that acts such as torture would be perpetrated. Consequently, in both cases the decision of the Minister’s delegate to exclude the applicant from refugee status pursuant to art 1F(a) was aﬃrmed by the AAT. The AAT’s approach was supported by the Full Court of the Federal Court in SHCB, another case involving a member of KHAD in Afghanistan. The applicant had reported information to KHAD and the AAT was satisﬁed that there was strong evidence that the appellant knew that the information would be used by KHAD to end a security threat – action that was likely to involve a war

100 SAL [2002] AATA 1164, para 85. 101 ‘AXIOB’ and Minister for Immigration and Multicultural Aﬀairs [2002] AATA 365 (‘AXIOB’). 102 SAL [2002] AATA 1164, paras 49–50. 103 SAL [2002] AATA 1164, para 90; AXIOB [2002] AATA 365, para 24.

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crime or crime against humanity. In discussing the AAT’s approach, the Full Court emphasised that the Tribunal ‘did not ﬁnd that merely being an oﬃcer of the KHAD constituted complicity in its acts. The ﬁnding was to the eﬀect that the appellant … engaged in conduct knowing that the conduct was likely to lead to the commission of relevant acts.’ The Full Court supported the AAT’s approach and found that the Tribunal had not committed a jurisdictional error. The decision in SHCB highlights that an applicant may be denied refugee status if they have ‘aided, abetted or otherwise assisted the commission or attempted commission of such acts.’ The Full Court stated that it is not necessary to ﬁnd a speciﬁc incident, ‘if there are ﬁndings of many such incidents and a ﬁnding that the appellant took steps as an oﬃcer of KHAD knowing that such acts would be the consequence of his steps.’ In Re VAX, the AAT accepted that a person who ‘pursues a common purpose with others’ will also be criminally responsible if they have knowledge that ‘illegal acts will be perpetrated’ or ‘in circumstances in which the natural and foreseeable consequence of eﬀecting the common purpose will be the commission of an unlawful act’. Thus, in the circumstances of that case the applicant would be criminally responsible if he had entered the Palestinian refugee camp with the purpose of revenge ‘knowing or believing that anyone found therein would be killed or being reckless or indiﬀerent to that risk’. On the other side, criminal responsibility will not be established merely by proving that an applicant is a member of an organisation or group that has engaged in atrocities. In the application for special leave to appeal to the High Court in SHCB (an application that was denied), Kirby J questioned whether it was the purpose of the Refugee Convention to exclude potential refugees through ‘guilt by association’. In SAH, the AAT held that occupying the position of an oﬃcer in the Iraqi Special Forces at a time when war crimes and crimes against humanity were being committed by those Forces, did not by itself provide strong evidence that an applicant had been involved in illegal activities. The issue of membership of a group was considered by the Federal Court in a case where the Minister’s delegate denied an applicant refugee status on the basis of his involve104 105 106 107 108 109 110 111 112

SHCB (2003) 133 FCR 561, 564–5. Ibid 567. Ibid 568–9. Ibid 565. See also Re VAX [2005] (Unreported, Administrative Appeals Tribunal, Deputy President C.R. Wright, 16 February 2005), para 47. SHCB (2003) 133 FCR 561, 565. Re VAX [2005] (Unreported, Administrative Appeals Tribunal, Deputy President C.R. Wright, 16 February 2005), para 47. Ibid 47. SHCB v Minister for Immigration and Multicultural and Indigenous Aﬀairs [2004] HCATrans 294 (11 August 2004). SAH [2002] AATA 263, para 63.

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ment with the Hezb-i-Wahdat, a political and military movement in Afghanistan. A report by the Council of the European Union documented human rights violations perpetrated by this movement and listed senior oﬃcers as the people most likely to have been responsible for the violations. French J in the Federal Court emphasised that it would be a ‘matter for concern if the Tribunal, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity’. This decision is in accordance with UNHCR Guidelines, which provide that mere membership of an organisation that has been involved in unlawful violence does not establish individual responsibility without further evidence of the applicant’s involvement. However, the UNHCR also states that ‘the purposes, activities and methods of some groups are of a particularly violent nature, with the result that voluntary membership thereof may also raise a presumption of individual responsibility’. The Canadian case of Ramirez v Canada (Minister for Employment and Immigration) suggested a similar line of reasoning. The UNHCR recognises that caution needs to be practised in applying such a presumption in art 1F cases – a caution which is demonstrated by the approach of French J in WAKN. Another type of individual liability that may arise in the international criminal law context is command responsibility. A person may be criminally responsible if they order, solicit, or induce the commission of a crime. Further, in certain circumstances a military commander or superior may be criminally responsible for acts of their subordinates where there has been a failure to exercise proper control. Command responsibility was discussed brieﬂy in Re VAX with reference to the principles articulated in the Rome Statute and the Statutes of the ICTY and ICTR. Counsel for the Minister argued that even if the applicant was not personally involved in the killings in the refugee camp then he would be responsible 113 114 115 116

117 118 119 120

WAKN (2004) 138 FCR 579, 582. Ibid 592. UNHCR Guidelines, above n 99, para 19. In that case, the Supreme Court of Canada held that: mere membership in an organization which from time to time commits international oﬀences is not normally suﬃcient for exclusion from refugee status … It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose … mere membership may by necessity involve personal and knowing participation in persecutorial acts. (1992) 89 DLR (4th) 173, 317, quoted in Zagor, ‘Persecutor or Persecuted’, above n 18, 176. UNHCR Guidelines, above n 99, para 19. Rome Statute, above n 33, art 25(3)(b). Ibid art 28. Re VAX [2005] (Unreported, Administrative Appeals Tribunal, Deputy President C.R. Wright, 16 February 2005), para 45.

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for the actions of his subordinates in the Phalangist militia. On one version of events the applicant submitted that he had withdrawn from the ﬁghting with a friend when he saw civilians being killed. Even on this account the AAT found that there would be a ‘substantial basis’ for relying upon command responsibility in order to conclude that there were serious reasons for considering the applicant criminally liable. Although at least one member of the AAT has recognised the similarity between domestic and international law principles concerning criminal responsibility, concepts relating to command responsibility are largely foreign to domestic civilian courts. But determining the complex circumstances in which an individual may be responsible for a war crime or crime against humanity is at the heart of art 1F(a) cases and consequently is of vital importance to the decisions of the Minister’s delegates, the Tribunal and the Federal Court. Thus the legacy of the Nuremberg Tribunal lives on in the Australian jurisprudence. VI

Conclusion

Apart from deﬁnitional questions concerning art 1F(a) crimes, a number of other issues have been discussed in Australian case law, including the meaning of the phrase ‘serious reasons for considering’ and the application of procedural fairness. The correct approach in cases where it is alleged that a person will be tortured if they are returned to their country of origin has been raised in discussions concerning the exclusion clause. It has also been questioned whether applicants accused of art 1F crimes should automatically be excluded from refugee status, or whether the alleged criminality should be balanced against the risks faced if they are returned to their country of origin. On this question, the current approach in Australia is to deny the application of a balancing process where it is

121 Ibid. 122 Ibid para 46. 123 Ibid para 47. Article 25(3)(d) of the Rome Statute, above n 33, deals with the commission of a crime ‘by a group of persons acting with a common purpose.’ See also Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003) 95. Van Sliedregt indicates that the ‘wording in paragraph 3(d) of Article 25 contains the English “common purpose” concept.’ 124 For a discussion of the phrase ‘serious reasons for considering’, see Zagor, ‘Persecutor or Persecuted’, above n 18, 168–70; Bliss, above n 19, 115–7. The phrase has been considered in recent Australian case law such as SRDDD [2004] AATA 150, paras 35–9; WAKN (2004) 138 FCR 579, 592; SRYYY (2005) 86 ALD 511, 535–6. 125 See S214 of 2002 v MIMIA [2004] FCAFC 66. See also Bliss, above n 19. 126 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, art 3 (entered into force 26 June 1987); Commonwealth of Australia, ‘Persons Deemed Unworthy of International Protection (Article 1F): An Australian Perspective’, above n 13, 21–40.

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alleged that an applicant has committed a crime listed in art 1F. However, the Legal Advisory Group of the Lawyers Committee for Human Rights has suggested that in cases of ‘imminent and extremely severe persecution’ there should be a balancing process in relation to all clauses of art 1F. Other issues may arise in the future, for example the appropriate categorisation of terrorism as a crime against humanity, a war crime, a serious non-political crime, or an act contrary to the purposes and principles of the United Nations. The increasing involvement of child soldiers in armed conﬂict leads to diﬃcult questions concerning the minimum age of criminal responsibility and the defence of duress in circumstances where recruitment is not voluntary. Such issues have yet to be fully considered by international criminal courts and tribunals, and thus executive bodies may be faced with diﬃcult questions of international criminal law prior to the issues being examined by international judges. The domestic implementation of art 1F has forced executive and judicial bodies in Australia to grapple with the substance of international criminal law. But it is important to acknowledge that these issues are not being discussed in order to prosecute an individual, but rather for the purpose of excluding an individual from refugee status via an administrative law process. The Refugee Convention dictates that an applicant is to be excluded if there are ‘serious reasons for considering’ that they have committed a war crime or crime against humanity, not because their guilt has been proven beyond reasonable doubt. A question that has yet to be resolved satisfactorily is the consequences of such a determination beyond the refugee law context. The fact that the Federal Court and AAT have found on a number of occasions that there are serious grounds for 127 Dhayakpa (1995) 62 FCR 556, 563 (concerning art 1F(b)). French J aﬃrmed that art 1F excludes the operation of the Convention ab intio in an art 1F(a) case: WAKN (2004) 138 FCR 579, 590. This is in accordance with the practice of a number of other countries: Akbar Rasulov, ‘Criminals as Refugees: The “Balancing Exercise” and Article 1F(B) of the Refugee Convention’ (2002) 16 Georgetown Immigration Law Journal 815, 833. 128 Lawyers Committee for Human Rights, above n 24, 169. 129 See Walter Kälin and Jörg Künzli, ‘Article 1F(b): Freedom Fighters, Terrorists and the Notion of Serious Non-Political Crimes’ (2000) 12 International Journal of Refugee Law Special Supplementary Issue 46, 54, 74–6. The Security Council has stated that terrorism is an act ‘contrary to the purposes and principles of the United Nations’: SC Res 1373 (2001), UN Doc S/RES/1373 (2001), 28 September 2001, para 5; SC Res 1377 (2001), UN Doc S/RES/1377 (2001), 12 November 2001, Annex. In 2005, SC Res 1624 (2005) called upon states to deny safe haven to those who have committed terrorist acts: UN Doc S/RES/1624 (2005), 14 September 2005, para 1. 130 See Matthew Happold, ‘Excluding Children from Refugee Status: Child Soldiers and Article 1F of the Refugee Convention’ (2002) 17 American University International Law Journal 1131. 131 For criticism of the standard of proof applied in art 1F cases via the administrative process, see Zagor, ‘No Mean Feat’, above n 25.

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considering that an applicant for refugee status in Australia has committed a war crime or crime against humanity without any follow-up prosecutions, raises doubts as to Australia’s commitment to punish or extradite suspected war criminals pursuant to our international obligations. As is highlighted by Pejic, exclusion of a refugee applicant pursuant to art 1F(a) ‘is the ﬁrst step towards ensuring that justice is done. The initiation of criminal proceedings by national courts or by an international tribunal as the case may be, should be the ultimate goal’. The enactment of the two pieces of legislation that implement Australia’s obligations pursuant to the Rome Statute may change this position in the future. The Nuremberg Tribunal stated that only through the punishment of individuals can international criminal law be fully enforced. The punishment that was envisaged and carried out at Nuremberg involved successful prosecution and the application of criminal penalties, rather than exclusion from refugee status. The case law discussed in this chapter demonstrates that despite the paucity of prosecutions for war crimes and crimes against humanity in Australia, the Nuremberg Charter and the subsequent expansion of international criminal law have played an important role in the domestic legal system. The delegates of the Minister for Immigration and Multicultural Aﬀairs, the AAT and the Federal Court have been asked to examine the detail of changing deﬁnitions of war crimes and crimes against humanity and apply the recognised defences for such crimes in international criminal law. They have also explored perhaps the most important legacy of the IMT at Nuremberg – the concept of individual responsibility. In turn, through their interpretations of art 1F(a), national courts and tribunals throughout the world have contributed to the substance of international law.

132 Ibid. 133 Pejic, above n 24, 45.

Chapter 13 Australian Implementation of the Rome Statute of the International Criminal Court David Blumenthal *

I

Introduction

As discussed throughout this volume, the Nuremberg Trial embodied a fundamentally new approach to the imposition of criminal responsibility on individuals for egregious breaches of international criminal law. The most recent major legacy of the precedent established at Nuremberg is the International Criminal Court (ICC), an institution that came into operation on 1 July 2002. The ICC was created to carry out the same basic function as the International Military Tribunal (IMT) at Nuremberg, but unlike the strictly conﬁned jurisprudential, temporal and geographic jurisdiction of its illustrious predecessor and of the several ad hoc international tribunals created after Nuremberg, the ICC has been established as a permanent court of law that can – subject to the fundamental principle of complementarity and certain other limitations set out in its enabling Statute – exercise jurisdiction over all international crimes within its broad juris* 1

2

The author would like to acknowledge the generous contribution of Jessica Howard to the themes and ideas explored in this article. The Statute of the International Criminal Court under which the ICC operates came into force on 1 July 2002. The inaugural session of the ICC itself and the swearing in of its judges took place on 11 March 2003. See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’). Notably, the International Military Tribunal for the Far East (the Tokyo Tribunal), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). See Charter of the International Military Tribunal for the Far East, signed in Tokyo on 19 January 1946, as amended 26 April 1946, TIAS 1589, 4 Bevans 20; Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to SC Res 827 (1993), UN Doc S/RES/827 (1993) (adopted 25 May 1993, as amended 19 May 2003) (‘Statute of the ICTY’); Statute of the International Criminal Tribunal for Rwanda, annexed to SC Res 955 (1994), UN Doc S/RES/955 (1994) (adopted 8 November 1994, as amended 27 October 2003) (‘Statute of the ICTR’).

David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg. © Koninklijke Brill BV. Printed in The Netherlands. isbn 978 90 04 15691 3. pp. 283-325.

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diction, wherever they might take place, prospectively from the date the Court was established. It is an oft-repeated observation that in its role as the chair of the LikeMinded Group of nations at the Rome Conference in 1999, Australia played an important part in the negotiation and drafting of the Statute of the International Criminal Court (the ‘Rome Statute’). The role played by Australia in the negotiation process at Rome reﬂected the long-standing commitment of the Australian Government to the creation of a permanent international criminal court. Yet despite early enthusiasm for the ICC, Australia very nearly failed to ratify the Rome Statute. By reconstructing the divisive ratiﬁcation debate within Australia, this paper attempts to explain why things changed so dramatically in the period between Australia’s initial support of the ICC project and ratiﬁcation. It will be shown that opposition to the ICC regime within Australia was to a large extent based on a concern that ratiﬁcation of the Rome Statute would fundamentally compromise Australian sovereignty by subjecting Australians to the jurisdiction of an undemocratic, unaccountable and potentially malicious international body, with the power to enforce laws of uncertain meaning that might be contrary to Australian values. The frequently misinformed, and at times hysterical, tenor of the ratiﬁcation debate revealed considerable fear and misunderstanding about the relationship between international law and domestic Australian law under the Rome Statute framework, a fear that may have been exacerbated by a more generalised disquiet within the community concerning the impact of globalisation on Australia’s place in the world. One consequence of the unexpectedly intense and drawn-out ratiﬁcation debate was that relatively little time and attention was given to the content of the Australian legislation that had been drafted to give domestic eﬀect to the Rome Statute. This was despite the fact that Australian legal practice, and the principle of complementarity itself (see below), required that Australia pass its own implementing legislation before formal ratiﬁcation of the Rome Statute could occur. Hence through a detailed consideration of the crime of wilful killing, this paper also considers the eﬀect of the domestic ratiﬁcation debate on Australia’s implementing legislation, which contains several examples of problematic drafting. Whilst it is conceded at the outset that the problems identiﬁed in Australia’s implementing legislation are more likely to be theoretical than real, it will be shown that the ratiﬁcation debate, and the impact of that debate on the domestic implementation process, reveal a great deal about the negative conceptions of international law and of multilateralism within sectors of the Australian community. 3

See, eg, Timothy L.H. McCormack, ‘Australia’s Legislation for the Implementation of the Rome Statute’ in Matthias Neuner (ed), National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (2003) 65-82.

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Uncertain Bedfellows: Australia’s Relationship with International Law

Australia follows a dualist or two-step approach to the incorporation of international law into domestic law. In 1995 the High Court of Australia restated the long-established principle ‘that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute’. In making this declaration, the High Court was restating a critical aspect of Australia’s relationship with international law – a relationship that gives primacy to domestic law, and accepts international law as enforceable only once it has been ‘domesticated’ by Parliament through incorporation into the Australian statute books. This legal framework thereby seeks to ensure that Australian sovereignty and legal norms are protected, by mandating that the only ‘international’ legal obligations accepted by the Executive that are enforceable within the Australian legal system are those which have been transformed into domestic law by Australian law makers. In this manner, the capacity of the Executive to change Australian law directly through the signing and ratiﬁcation of treaties is proscribed. However, the doctrines outlined above do not mean that international law is of no consequence within Australia unless incorporated into domestic law by an Act of Parliament. Obviously, Australia remains responsible at the international level for the international obligations it accepts. At a domestic level, although untransformed international obligations cannot be the source of enforceable rights, the High Court has stipulated that ‘the fact that the Convention has not been incorporated [by way of an Act of Parliament] into Australian law does not mean that its ratiﬁcation holds no signiﬁcance for Australian law’. A treaty ratiﬁed (or even merely signed) by Australia may give rise to a ‘legitimate expectation’ that decision-makers will act in conformity with Australia’s resultant international obligations. Further, in interpreting ambiguous legislation, where possible, Australian courts should favour an interpretation that accords with Australia’s international obligations. International law is also a ‘legitimate and important inﬂuence’ on the development of the common law. However, despite these various ways in which international law may inﬂuence the development and interpretation of Australian law, it is evident that the only direct way in which international treaty obligations may be the source of legal rights and obligations within Australia is through legislative incorporation.

4 5 6 7 8

Minister of State for Immigration and Ethnic Aﬀairs v Ah Hin Teoh (1995) 128 ALR 353, 361. Ibid 362. Ibid. Ibid. Mabo and others v Queensland (No 2) [1992] 175 CLR 42 (Brennan J).

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Whilst past Australian Governments have signed and ratiﬁed treaties without ﬁrst consulting Parliament, in 1996 the conservative Government of John Howard sought to ‘improve the openness and transparency of the treaty making process in Australia’ by establishing the Joint Standing Committee on Treaties ( JSCOT). Prior to ratiﬁcation of any international agreement, JSCOT must receive a national interest assessment of the agreement, undertake a review of the implications for Australia of the proposed treaty action, and make a recommendation as to whether or not to ratify. In many ways, this is a common sense approach because: [i]f the Executive ratiﬁed a treaty prior to the enactment of implementing legislation and Parliament subsequently refused to support the enactment of the draft legislation, Australia could ﬁnd itself in breach of its international obligations.

As will be discussed further below, the idiosyncrasies of the Australian approach to ratiﬁcation and implementation of international law, in conjunction with the JSCOT review process, played a pivotal role in the debate over Australia’s ratiﬁcation of the Rome Statute. III To Join or Not to Join? Australia and the ICC Despite taking a leadership role in negotiations on the Rome Statute, and numerous statements by senior ministers within the Australian Government indicating support for the concept of the ICC during those negotiations and following Australia’s signing of the Rome Statute on 9 December 1998, the Australian Government only formally announced its intention to ratify the Statute on 20 June 2002, mere days before the Statute entered into force on 1 July. The domestic political debate that delayed – and very nearly derailed – Australia’s ratiﬁcation of the Rome Statute resulted in Australia being the 75th state to ratify, and 9

10 11

There are numerous examples of treaties to which Australia is a State Party but for which it has no domestic implementing legislation – that is, the international obligations do not form part of municipal law. See, eg, International Covenant of Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘Convention against Torture’). Joint Standing Committee on Treaties, Purpose of the Treaty Committee, . McCormack, above n 3, 67.

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very nearly precluded Australia from participating in the inaugural Assembly of States Parties. Moreover, the Australian Government’s eleventh hour decision gave law makers only the narrowest of windows within which to debate and pass the requisite domestic implementing legislation. The nature and content of the ratiﬁcation debate graphically illustrates the intensity of the ideological and political divide that can arise when national sovereignty is perceived to be threatened by one of the most powerful ideological legacies of the Nuremberg Trial – the concept of an international rule of law. Although the focus of this paper is the Australian ratiﬁcation debate, it is clear that aspects of the Australian debate were repeated, and to some extent inﬂuenced by, the debates concerning the ICC raging in other parts of the world, particularly in the United States. A

Early Indications of Support

Even during the period of the preparatory meetings to the Rome Conference of 1998, senior members of Australia’s conservative federal Government under John Howard had indicated Australia’s strong support for the establishment of a permanent international criminal court. In a speech given on Human Rights Day in 1996, Foreign Minister Alexander Downer announced that the creation of an international criminal court was ‘one of the Government’s prime multilateral and human rights objectives’, and said that: I believe an International Criminal Court would be an important step forward for the international community in dealing with the most serious crimes of international concern such as genocide, war crimes and crimes against humanity … The world needs an International Criminal Court and Australia is uniquely placed to help deliver it.

In May 1998, a month before the Rome Conference, the Australian Government co-hosted with the International Committee of the Red Cross and the Australian Red Cross a closed symposium in Canberra at which international law experts and representatives of 21 governments in the Asia-Paciﬁc region were invited to discuss how a permanent international criminal court might be established, and how such a court should work. At this symposium both Mr Downer and 12

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The Rome Conference was held in June and July 1998, having been convened by a decision of the ﬁfty-second General Assembly of the United Nations as the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. See Establishment of an International Criminal Court, GA Res 52/160, UN Doc A/RES/52/160, 28 January 1998. Alexander Downer, Minister for Foreign Aﬀairs, ‘Strengthening Australia’s Human Rights Credentials’ (Address to a Forum on Australia’s Human Rights Obligations for Human Rights Day, National Press Club, Canberra, 10 December 1996).

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Attorney-General Daryl Williams clearly indicated their support for the establishment of such a court. It appears that two local concerns contributed to the Australian Government’s initially strong support for an international criminal court. The ﬁrst was the unhappy experience of the Australian War Crimes Unit that had been created to investigate and prosecute alleged Nazi war criminals living in Australia. As noted in Graham Blewitt’s chapter in this volume, despite the considerable eﬀorts of that Unit, it was unable to successfully prosecute any of the suspected war criminals it identiﬁed. The decision not to press ahead with charges against one key suspect, Karlis Ozlos, was the ﬁnal blow to that Unit, and to some an impetus to work to ensure that in the future all war crimes, genocide and crimes against humanity would be dealt with by a permanently constituted court, rather than on an ad hoc basis. Another regional concern contributing to Australia’s early support for the ICC project was the growing awareness that it was unlikely that Pol Pot and other senior Khmer Rouge oﬃcers would face justice for the atrocities perpetrated against the Cambodian people during the 1970s, despite calls for justice from survivors of that regime living within Australia. Immediately before the Rome Conference, Senator Helen Coonan, a member of the Howard Government, wrote in The Canberra Times that: The establishment of the [international criminal] court is a priority for the Government as it is one of its key multilateral and human-rights objectives … A strong permanent body will act as much as a deterrent as a prosecutor. Knowing that the international community could, and would, act decisively against the perpetrators of atrocities may be suﬃcient deterrent for aggressors. While it will be too late for such a tribunal to investigate the case against the likes of [suspected Nazi war criminal] Mr Kalejs, Australia must have the courage of its convictions to argue strongly for an international court at least for the immediate future. We owe the victims of past atrocities and their families nothing less.

Australia took a leadership role in negotiations at the Rome Conference in June and July 1998, particularly its capacity as chair of the Like Minded Group, a bloc that ultimately included representatives of 60 states amidst the 160 that participated in the ﬁve-week conference. The Like Minded Group pushed for a strong and independent ICC, and included within it most of Europe and Canada, much of Africa, and nations that played an important role as de facto representatives of their geographic regions, including Jordan, Argentina, South Africa and 14

15

James Woodford, ‘Australia Calls for World Court’, Sydney Morning Herald (Sydney), 7 May 1998; Jim Carlton, ‘Enforcing a Law for All the World’, Canberra Times (Canberra), 11 May 1998. Helen Coonan, ‘A Court for War Crimes’, Canberra Times (Canberra), 1 June 1998.

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Singapore. When negotiations concluded, a blueprint for a permanent international criminal court had been created in the form of the Rome Statute. When the ﬁnal vote on the Statute was taken, 120 states were in favour and only seven were opposed, with 21 nations abstaining from the vote. Australia voted in favour, and signed the Rome Statute on 9 December 1998. B The Position of the United States In 1945 President Truman declared his belief in the ‘beneﬁcent power of law and the wisdom of judges’ to punish the Nazi war criminals, a position reﬂected in Supreme Court Justice Robert Jackson’s argument that summary executions of the Nazi leadership, an approach supported by Churchill and Stalin, ‘would not sit easily on the American conscience or be remembered by our children with pride’. During his opening address to the Tribunal, Justice Jackson eloquently stated the United States’ commitment to the rule of law: That four great nations, ﬂushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most signiﬁcant tributes that Power has ever paid to Reason.

Ironically, despite the critical role the US played in establishing the precedent of Nuremberg, at the Rome Conference the United States was the only democratic nation ﬁghting against the establishment of a truly independent international criminal court – or at least, against a court that would have jurisdiction over US citizens. One objection was clearly a concern shared with many in Australia and around the world – that the Court would threaten the sovereignty of nation states, transcending their legal systems with a supranational jurisdiction. But the US also had a more speciﬁc concern that ﬂowed from this argument, and that was that US armed forces were engaged in operations around the globe, and that members of these forces could be subject to trumped-up charges before an international criminal court that, like some other international bodies, might be dominated by nations inimical to the United States. During the Rome Conference the US representatives spent much of their time trying to limit the powers of the proposed court, and trying to marshal opposition to the ICC amongst its allies and those nations dependent on it for economic and military aid. For example, the US pushed to give the UN Security 16 17

Geoﬀrey Robertson, ‘America Is Wrong to Shoot First, then Ask Questions about Guilt Later’, The Independent (London), 26 September 2001. United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (1947) Vol 2, 2nd day, 99 (‘Trial of Major War Criminals’ ).

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Council ﬁnal authority over who could be charged and tried before the court – a demand that would have hopelessly hobbled the court as a strong and independent body. On the day before the ﬁnal vote, US Defence Secretary William Cohen’s oﬃcials went so far as to warn German Defence Minister Volker Ruehe that ‘The prospect of an ICC pretending to have jurisdiction over our personnel ... is completely unacceptable. Should the universal jurisdiction proposal be adopted by the Rome conference, we would have to consider the implications for our overseas presence, including our commitment to forces in Europe’. However, despite its lobbying against the Statute, when the vote came the US found itself isolated from virtually all of its traditional democratic allies apart from Israel, as Washington and Jerusalem voted against the establishment of the Court in the company of a handful of human rights pariahs, notably China, Iraq, Libya, Qatar and Yemen. Geoﬀrey Robertson argued that in opposing the ICC, the US had needlessly damaged its international standing: Its rank hypocrisy in wanting ‘universal’ justice for everyone except Americans is apparent to all other nations, and will continue to damage US credibility in the human-rights ﬁeld as the ICC takes shape. The tragedy is that its objection is so unnecessary. The US has shown no recent reluctance to prosecute soldier-criminals. It has even set up an inquiry into allegations that its marines committed war crimes as long ago as 1950, in the South Korean hamlet of No Gun Ri. The US has nothing to fear from international criminal justice, as it has now been developed with all the safeguards of the Rome Treaty. It has, on the contrary, very much to gain by rejoining a movement to which it has in the past given so much in terms of idealism and practical support.

Robertson also noted that even two years after the stinging diplomatic rebuke that occurred when 120 nations signed the Rome Statute, including virtually all of America’s allies: The US paranoia over international criminal justice has not abated: when its Senate foreign relations committee chairman addressed the UN Security Council in January, Jesse Helms fulminated like a confederate bully-boy against the very idea of an international court ever trying an American soldier – even if his name were Lieutenant Calley … It was senator Helms’s bottom-line that the court would be ‘dead on arrival in Congress’ if it came with any conceivable possibility of indicting an American – that ﬁnally dictated the US vote. 18 19 20

‘Nothing Gained by America’s Global Tantrum’, The Canberra Times (Canberra), 21 July 1998. Geoﬀrey Robertson, ‘America Won’t Help: The US Is Opposing a New Court that Could Try the World’s Mass Murderers’, The Guardian (London), 18 July 2000. Ibid.

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During the last weeks of his administration, and only hours before the 31 December 2000 deadline for signing the Rome Statute imposed by the UN, President Clinton unexpectedly signed, albeit with reservations. This action was taken despite considerable opposition to the Court from within the United States, and particularly, from within the Republican Party that was to take oﬃce in a few weeks. In signing, President Clinton cited the need for the United States to provide ‘moral leadership’ and to remain engaged ‘in making the ICC an instrument of impartial and eﬀective justice’. However he also said ‘I will not, and do not recommend that my successor, submit the treaty for ratiﬁcation to the Senate for advice and consent until our fundamental concerns are satisﬁed’. Notably, within hours of the US signing, Israel reversed its position on the ICC and also signed the Rome Statute, as did Iran, bringing the total number of signatories to 139 as at 1 January 2001. C

National Sovereignty and the Principle of Complementarity

The fundamental concern expressed by the opponents of the ICC, and particularly by the US, was that submitting to the jurisdiction of the proposed international Court would embody an unacceptable and dangerous renunciation of national sovereignty. This concern exempliﬁes one of the central tensions within the very concept of international law. In many respects, it is the primacy of national sovereignty, and the unwillingness of nations to in any way derogate from their sovereign power, that is responsible for the generally glacial development of international legal institutions over the last century. The idea of an international criminal court was ﬁrst proposed at the Hague Peace Conference in 1907, and was raised again at the Versailles Peace Conference in 1919. Yet despite the precedent of the Nuremberg Trial and subsequent work on a draft statute in the early 1950s by the International Law Commission at the behest of the UN General Assembly, it was not until 1998 that the framework for a permanent international criminal court was eventually agreed upon at the Rome Conference. Yet the concern to protect national sovereignty was not a matter that slipped the minds of those 160 nations participating in the preparatory commissions and at the Rome Conference, nor of the 120 nations that voted in favour of the Rome Statute. It was in order to protect national sovereignty, while at the same time building a truly international court, that the principle of complementarity was developed and incorporated in the Rome Statute framework. Both paragraph 10 of the Preamble and art 1 of the Rome Statute explicitly state that the ICC ‘shall be complementary to national criminal jurisdictions’, and art 17 sets out the operation of

21

Roy Eccleston, ‘Clinton Signs for UN Court of Crime’, The Australian (Sydney), 2 January 2001; Hilary Charlesworth, ‘Clinton’s Policy Switch a Triumph of Justice’, The Australian (Sydney), 18 January 2001.

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the complementarity principle in practice. In essence, the complementarity principle protects the sovereignty of national legal systems by providing that the ICC can exercise its jurisdiction only in circumstances where a State Party is unwilling or unable to prosecute a relevant oﬀence under its own domestic law. The purpose of this principle is to ensure that States Parties to the Rome Statute are responsible for prosecuting crimes within the jurisdiction of the ICC under their own domestic legal systems, while the ICC will operate only as a court of ‘last resort’ in the event that a State Party cannot or will not act. The complementarity principle also serves to ensure that the oﬀences within the jurisdiction of the ICC are incorporated within the domestic legal systems of States Parties, thereby improving their normative value and making it far less likely that the oﬀences will be perceived as a foreign imposition or as a manifestation of ‘victors’ justice’.  D

Key Issues in the Australian Ratiﬁcation Debate

Although Mr Downer, Mr Williams and Defence Minister John Moore ﬁrst announced their intention to ratify the Rome Statute on 12 December 1999, the debate over Australia’s involvement in the ICC had been a largely lowkey aﬀair in the period between Australia’s signing of the Statute in December 1998 and late in 2000. However, on 10 October 2000 the federal Government referred the Rome Statute to JSCOT for its review and recommendation. Debate on the ICC was suddenly enlivened when only two weeks after the referral to JSCOT, and before that Committee had even begun its review work, Mr Downer and Mr Williams publicly announced Australia’s intention to ratify the Rome 22

23

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Article 17 of the Rome Statute, above 1, states: Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3; (d) The case is not of suﬃcient gravity to justify further action by the Court. For further explanation of the complementarity principle, see Katherine Doherty and Timothy L.H. McCormack, ‘“Complementarity” as a Catalyst for Comprehensive Domestic Penal Legislation’ (1999) 5 University of California Davis Journal of International Law & Policy, 149. Louise Dodson, ‘Plan to Ratify War Court Sparks MP Row’, The Age (Melbourne), 2 November 2000.

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Statute. This announcement prompted the Chairman of JSCOT at that time, Mr Andrew Thomson MP, to publicly question why the Attorney-General and Foreign Minister had pre-empted JSCOT’s consideration of the matter. From this time on, the ICC became a point of disagreement within the Government, and a public debate over whether or not Australia should ratify the Rome Statute rapidly took shape. During the next 18 months of its review, JSCOT received 252 written submissions and conducted seven days of hearings at which members of the public, academics, and community, professional and non-governmental organisations spoke concerning the merits of ratifying the Rome Statute. Although the Committee commenced its work by reviewing the Rome Statute itself, on 30 August 2001 the Committee also began to review two Bills drafted by the Attorney-General’s Department for the purpose of implementing the Rome Statute into domestic Australian law prior to ratiﬁcation: the International Criminal Court Bill 2001 (Cth) and the International Criminal Court (Consequential Amendments) Bill 2001 (Cth). The Committee noted with some concern that it was unable to review this draft legislation until quite late in its scrutiny process. However JSCOT was dissolved and its work suspended in October 2001 due to an imminent federal election. The Committee was reconstituted in March 2002, now under the leadership of Ms Julie Bishop, Mr Thomson having lost a pre-selection battle for his seat prior to the election. JSCOT then continued its hearings and concluded its review over the following months, tabling its Report and recommendations in May 2002. During the ongoing period of JSCOT’s review, politicians in favour of the ICC were careful not to be seen to be usurping the Committee’s role, as they had been accused of by Mr Thomson in 2001. Very few of those making submissions to JSCOT and who engaged in the public debate regarding the ICC were opposed to the concept and intended purposes of an international criminal court. Rather, those opposed to the ICC regime argued that the entity that would be created under the Rome Statute framework would be inherently ﬂawed, and so would be unable to eﬀectively carry out the lofty purposes for which it was created. Many of the opponents of ratiﬁcation focussed their objections on one or more of several closely interrelated concerns. Although JSCOT received hundreds of written submissions and heard considerable verbal evidence, the Committee was able to categorise as follows the ﬁve primary concerns raised before it in relation to ratiﬁcation of the Rome Statute: – the potential impact of ratiﬁcation of the Rome Statute on Australia’s sovereignty; – whether ratiﬁcation would be unconstitutional; – the ‘vagueness’ with which the Statute deﬁnes the crimes within its jurisdiction and their deﬁnition in the proposed implementing legislation; – the role of the Prosecutor and the accountability of the Court; and 25

Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the ICC (May 2002) (‘JSCOT Report’).

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David Blumenthal the potential impact of ratiﬁcation on the ability of the Australian Defence Force to participate in peacekeeping and other operations.

These concerns were also reﬂected in the more public debate concerning the ICC that was carried on during this period, particularly in Australian newspapers. While it is not possible to canvas all of the arguments and counter-arguments in this paper, it is worth brieﬂy reviewing some of the key concerns that were raised. 1

The ICC as a Threat to National Sovereignty

In many respects the primary concern from which all other concerns sprang was that ratiﬁcation of the Rome Statute would diminish Australian sovereignty by placing Australia and its citizens under the jurisdiction of a foreign, unrepresentative and unaccountable court that would be superior to all domestic courts: a legal Trojan Horse through which Australia’s enemies could impose their will upon Australia. It is unsurprising that it was in relation to the question of national sovereignty that the most extreme views were expressed against the ICC regime. A number of submissions to JSCOT expressed a deep concern that the ICC would operate as a supranational court of universal jurisdiction, one submission asserting that it had been created under a process that ‘reeks of an agenda of globalism and a world dictatorship of which we should have no part’. The Council for the National Interest submitted that it was ‘implacably’ opposed to ratiﬁcation, on the basis that the implementing legislation was ‘unconstitutional, undemocratic and an abrogation of Australia’s sovereignty’.  Another submission concluded that ratiﬁcation ‘appears to border on treason by the Executive Government against the people of Australia’. Ian Spry, a Melbourne barrister and editor of the National Observer, publicly argued that ratiﬁcation of the Rome Statute would cause ‘a substantial loss of sovereignty’, and suggested that the ‘dangerous’ principle of complementarity was an aspect of that threat. The Samuel Griﬃth Society was particularly criti26 27

28

29

30

JSCOT Report, above n 25, 2.1. Submission No 182 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 1 (P.J. Keogh). Submission No 19.2 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 2 (Council for the National Interest) (‘Council for the National Interest, Submission’). Submission No 1 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 3 (National Civic Council (WA)) (‘National Civil Council (WA), Submission’). Ian Spry, ‘Grave Risks in Signing our Sovereignty Away to International Court’, The Courier-Mail (Brisbane), 26 April 2002.

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cal of the idea of an international criminal court. Former Treasury Head John Stone told the 2000 Conference of that society that human rights agreements served only to ‘bolster the moral vanity and ﬂatter the egos’ of their supporters. In a newspaper opinion piece at around this time, Frank Devine suggested that if Australia ratiﬁed the Rome Statute, ‘the erosion of national sovereignty would be epic. Were our High Court to decline to hear argument on a case, the international criminal court might take it over – becoming our even higher court’.  The critical function of the complementarity principle in protecting the national sovereignty of States Parties to the Rome Statute appears to have been poorly understood by many of the Australian opponents of ratiﬁcation, if it was considered at all. Others making submissions to JSCOT opposed to ratiﬁcation did address complementarity, but suggested that it was no more than ‘an exercise in semantics’ and a ‘beguiling falsehood’, of little value as a means of protecting national sovereignty because the ICC would ultimately decide whether a state had in fact ‘genuinely’ prosecuted a suspect, and hence, whether the principle would operate. 2

The Crimes within the Jurisdiction of the ICC Are of Uncertain Scope and Meaning

A second fundamental concern expressed by many of those opposed to ratiﬁcation, in many submissions closely related to arguments about the diminution of national sovereignty, was that the oﬀences within the ICC’s jurisdiction were so vague and elastic that they could be used by politically motivated judges and prosecutors of the Court as tools of social engineering to change the face of Australian society. As noted above, when JSCOT commenced its review in October 2000, it was chaired by Mr Thomson, a former sports and tourism minister. Mr Thomson was strongly opposed to ratiﬁcation, and for the following year he publicly opposed Australia’s involvement in the ICC. One of Mr Thomson’s particular concerns was that some of the crimes within the ICC’s jurisdiction were so broadly deﬁned that the Court could use those legal prohibitions as tools of social engineering to change government policy within Australia. He said that ‘What they are trying to achieve is what I call “cosmic justice” and it doesn’t work.’ Mr Thomson’s campaign against the Court was supported by inﬂuential Sydney radio commentator Alan Jones, who stated on air that: 31 32 33 34 35

Bernard Lane, ‘‘‘No Risk” of Pariah Status on Treaties’, The Australian (Sydney), 13 November 2000. Frank Devine, ‘Treaty Courting an International Legal Disaster’, The Australian (Sydney), 12 March 2001. Council for the National Interest, Submission, above n 28, 2. JSCOT Report, above n 25, 2.30-2.34. Darrin Farrant, ‘MP Fears Scope of War Crimes Court’, The Age (Melbourne), 16 March 2001.

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David Blumenthal Someone here can accuse you of racial persecution, or even political persecution or religious persecution, and you could be taken to the International Criminal Court where the prosecutor has got virtually unlimited powers.

Geoﬀrey Walker submitted to JSCOT that the ‘list of oﬀences punishable by the court extends to acts that are not normally regarded as major crimes, such as “outrages upon personal dignity”’. He submitted that because of their broad ambit and uncertain meaning, the provisions are: … capable of expansion to cover conduct far beyond anything most people would regard as the ‘most serious crimes of international concern’. The range of acts that could be treated as constituting an attempt to commit ‘cultural persecution’ (Art.7(1)(k)) or an attempt to outrage human dignity might be limited only by the imagination of the prosecutors and their NGO supplied helpers.

These concerns were echoed by numerous others making submissions to JSCOT, in particular the Festival of Light, which suggested that the ICC could use these terms to ‘re-engineer social policies thought the world’. The Council for the National Interest submitted that the broad and nebulous deﬁnitions of some of the crimes ‘would appear to open the way for future initiatives in international law to be inserted into Australian law without the approval of the Australian Parliament’. Similarly, the National Civil Council (WA) submitted that the inclusion of broadly worded oﬀences such as ‘genocide by causing mental harm’ could create ‘an open ended means of importing developments in international law into Australian criminal law without any parliamentary debate’. Mr Devine also expressed deep concern over the polymorphous international jurisprudence of the court, arguing that the deﬁnitions of crimes were so broad that the ICC would ‘let loose every social engineering lobby group on earth’. Along similar lines, Spry wrote that:

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38

39 40 41

Cynthia Banham, ‘War Crimes Court “Needs our Support”’, Sydney Morning Herald (Sydney), 21 April 2001. Submission No 228 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 8 (Professor Emeritus Geoﬀrey de Q. Walker); JSCOT Report, above n 25, 2.83. Submission No 30 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 6-7 (Festival of Light). See also JSCOT Report, above n 25, 2.84. Council for the National Interest, Submission, above n 28, 2. National Civic Council (WA), Submission, above n 29, 1; JSCOT Report, above n 25, 2.75-2.78. Devine, above n 31.

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The powers of the ICC are so wide and uncertain that no one can be conﬁdent of any limitations. But the following are some of the many instances where Australia would be threatened. Radical Aboriginal groups making spurious claims about alleged genocide could take their complaints to the ICC. Who is to say whether African or other judges of the ICC would not be politically sympathetic to them and penalise Australians accordingly? Illegal immigrants making spurious claims about alleged crimes against humanity could take their complaints to the ICC. Again, unsympathetic judges of the ICC could make orders extraditing Australians, ﬁnd them guilty and imprison them. The ICC could take eﬀective control over a broad range of social policies. Why would Australia wish to ratify the ICC statute and submit itself unnecessarily to this bizarre loss of sovereignty – especially when there is no mechanism to withdraw from the ICC, so that once Australia ratiﬁed it would be bound forever? The answer is that ratiﬁcation by Australia has been promoted by two unrepresentative groups less concerned by Australia’s welfare than by other objectives. The ﬁrst group may be described generally as internationalists. This group is not concerned to protect Australian sovereignty but is concerned to advance a utopian world order ... The other powerful interest group seeking ratiﬁcation, to Australia’s detriment, comprises a group of oﬃcials in the Attorney-General’s Department in Canberra. This group – some of whom are thought to hope for positions in the ICC’s well-paid bureaucracy in The Hague – have been assiduous in promoting the ICC. They have even lobbied groups within other countries to have those other countries ratify the ICC statute. They have been instrumental in persuading a number of other public servants who are careless of detriment to Australia to support their cause.

In November 2000, conservative Australian commentator Padraic McGuiness described the debate about Australia ratifying the Rome Statute in the following terms: Like many such treaties, on the face of things it seems obviously a good idea. The idea of it is to enable the international pursuit and punishment of those who perpetrate crimes against humanity, like genocide, and war crimes. So far so good. But who deﬁnes what is a war crime? This is where the underlying agenda of many of the proponents of the International Criminal Court begins to peep out from under the curtain of highfalutin principle. In a word, the idea is: ‘Let’s get America.’ … So if the criminal court goes ahead we know perfectly well what will happen. The various crooked appointees from the dictatorships will team up with the dubious appointees from various ‘left wing’ and ‘post-colonial’ 42

Spry, above n 30.

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David Blumenthal states, they will be joined by the do-gooders from the real democracies who see international law as a great way of exercising power without having to bother about democracy, the bureaucratic lawyers and diplomats who love to posture on a world stage, and the numerous corrupt, dishonest and ideological non-government organisations which like to exercise power without responsibility… The whole idea of the international criminal court is to put the US and its president on trial for Vietnam, for the Gulf War, for Kosovo, for its support of Israel in the Middle East and the list writes itself. Israel will be another target. And how far down the track will be Australia, for sending troops to Vietnam and most recently into East Timor? The underlying idea, apart from paying oﬀ political scores, is to render the armies of the great powers impotent, by allowing civilian ignoramuses with legal qualiﬁcations to second guess every combat action, every decision made in the heat of battle, which might later be argued to be excessive, and to persecute for the rest of their lives everyone who acted badly in the belief that they were expected to do so at the time. Meanwhile the real criminals, the dictators, the terrorists and the jailers will go untouched.

In some respects the concerns expressed by those opposed to ratiﬁcation regarding the uncertain nature of the crimes Australian could be charged with can be understood as a manifestation of a concern that had been expressed with respect to international tribunals as far back as the Nuremberg Tribunal itself – a concern that these bodies administer only ‘victors’ justice’. Understood in this light, the concern of many Australians opposed to ratiﬁcation can be seen as a concern that because Australia is only a small nation in the international milieu, the ‘victors’ in this context may be blocs of nations that Australia has little in common with, and that may use the Court improperly to impose their political will on Australia. Yet the idea that the Court would be administering poorly deﬁned oﬀences that could be used to coercively impose alien values on Australia appears to misunderstand that the Court’s jurisdiction is with respect to war crimes, genocide, and crimes against humanity: the most heinous criminal oﬀences in international law. These are oﬀences in relation to which there has been international consensus for over 60 years, and that were the basis of the charges against the Nazi leadership at the Nuremberg Trial. In response to the arguments about the purported uncertainty of these oﬀences, a range of bodies and individuals pointed out that the oﬀences under the Rome Statute, when read together with the accompanying Elements of Crimes, did no more than codify existing customary international law, and incorporate and restate provisions from well-established treaties such as

43

Padraic McGuinness, ‘International Criminal Court Has Its Own Agenda’, Sydney Morning Herald (Sydney), 4 November 2000.

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the 1948 Genocide Convention, the 1949 Geneva Conventions, and the 1984 Convention against Torture, elements of which have long been incorporated into Australian domestic law. Hence the codiﬁcation of these oﬀences within the Rome Statute reﬂected no more than the existing international consensus on a range of signiﬁcant criminal oﬀences – a consensus in which Australia has long been a strong voice. The one important exception to the above argument is the crime of aggression, an oﬀence which has been the subject of ongoing and vigorous debate, as detailed in the paper in this volume by Carrie McDougall. However, the incorporation of the crime of aggression into the jurisdiction of the Court will occur only if a twothirds majority of the States Parties amend the Rome Statute to adopt it, and it is then accepted through ratiﬁcation by seven-eighths of the States Parties. Even then, if such an amendment was made and Australia did not agree to it, Australia would be entitled to withdraw from the Rome Statute with immediate eﬀect. 3

The Court Will Be Unaccountable, Unjust in Its Procedures, and Prone to Political Control

A third concern raised by many opponents of ratiﬁcation, and closely related to the ﬁrst two concerns, was that the ICC would administer justice in a draconian manner inimical to Australian standards of justice. This concern was based in part on a suspicion that the Court’s proceedings would be crude and unfair, but was centred on the fear that because the ICC could or would be dominated by a bloc of undemocratic nations unfriendly to Australia, the Court could or

44

45

46 47

48

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) ‘Genocide Convention’. Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’) (collectively, ‘Geneva Conventions’). Convention against Torture, above n 9. Submission No 20 to Joint Standing Committee on Treaties, Commonwealth of Australia, Inquiry into the 1998 Statute of the International Criminal Court (2001) 6 (NSW Bar Association) (‘NSW Bar Association, Submission’). Rome Statute, above n 1, art 121.

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would be used for fundamentally political ends to try and imprison Australians on trumped-up charges. However, the large majority of submissions by lawyers and professional legal bodies were clear that the draft Rules of Procedure and Evidence created a sophisticated and fair set of rules for the conduct of trials. The NSW Bar Association described these rules as ‘probably the most sophisticated and comprehensive codiﬁed right to a fair trial of any court system in the world’, a view echoed in submissions by Human Rights Watch and the International Commission of Jurists (Australian Section), as well as by the Attorney-General and Minister for Foreign Aﬀairs. Concerns that the Court would be dominated by unfriendly nations and its purposes and processes abused were refuted by numerous commentators who pointed out that the Court had well-developed internal checks and balances to prevent such abuses, and that the best way for Australia to work to ensure that the Court operated as envisaged under the Rome Statute was to participate in it, rather than to withdraw. 4

Ratification Will Expose Members of the Australian Defence Force to Prosecution and Thereby Compromise Its Ability to Participate in Peacekeeping and Other Operations

A number of submissions were also made suggesting that the combination of problems with the ICC identiﬁed above meant that ratiﬁcation would pose an unacceptable risk to personnel in the Australian Defence Force (ADF). This concern closely mirrored one of the major objections to the ICC raised by the United States in relation to its own soldiers. Of particular concern in this light was the uncertain nature of the oﬀences within its jurisdiction and the potential for the Court to be used by Australia’s enemies to mount malicious prosecutions. Submissions of this nature were made by a range of people and organisations, and in particular, by the Returned Services League of Australia and by some other retired military personnel. In an open letter to The Canberra Times in March 2001, a group of ﬁve retired senior military oﬃcers argued that the deﬁnitions of crimes were far too uncertain, and expressed: … our gravest concern that the Australian Government may ratify a statute for a proposed International Criminal Court (ICC), to be set up in The Netherlands, and which, in our view, will seriously undermine Australian sovereignty and freedom to defend itself. If the ICC obtains jurisdiction, Australian defence forces will be subject to its over-riding jurisdiction. This foreign court will be able to compel Australia to arrest and extradite Australian nationals to The

49 50

NSW Bar Association, Submission, above n 47, 5. JSCOT Report, above n 25, 2.99-2.105, 3.53.

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Netherlands, although its judges and prosecutors may be from countries not friendly to Australia … It would be folly for Australia to ratify the ICC statute. To do so would confound all reason and ignore enlightened self interest. It would represent a surrender of our national sovereignty and could present a serious threat to our capacity to defend the nation and its citizens.

In contrast, the Government argued that ratiﬁcation would protect Australian soldiers by providing a clear set of legal constraints within which they could operate, and that in any case, the principle of complementarity and the robust nature of the Australian military justice system meant that it was improbable that ADF personnel would ever be tried before the ICC. In this regard, Admiral Chris Barrie, the chief of the ADF at this time, wrote that ‘[t]he ADF will always investigate and, where necessary, prosecute any serving member of the ADF accused of committing genocide, war crimes or crimes against humanity’. Submissions by other Australian military bodies also reﬂected a generally positive view of the ICC regime, including the Australian Defence Association. JSCOT ultimately accepted the views of those in arguing that the ADF would not be adversely aﬀected by ratiﬁcation of the Rome Statute. 5

Ratification of the Rome Statute Would Be Unconstitutional

A number of constitutional arguments were also raised suggesting that ratiﬁcation would conﬂict with several provisions of the Australian Constitution, particularly with the Chapter III provisions relating to judicial power, and with the doctrine of separation of powers generally. These arguments will not be reprised here, as they relate to the particular federal structure of Australia. Ultimately, these constitutional arguments were refuted by the Attorney-General and the Minister for Foreign Aﬀairs, as well as by the Australian Red Cross, and the Committee accepted these counter-arguments.

51

52 53 54 55 56

Major General D.M. Butler (Ret’d), Major General W.B. James (Ret’d), Air Vice Marshal J.C. Jordan (Ret’d), Rear Admiral P.G.N. Kennedy (Ret’d), Major General K.J. Taylor AO (Ret’d), ‘International Court a Risk to our Sovereignty’, The Canberra Times (Canberra), 12 March 2001. JSCOT Report, above n 25, 2.114-2.117. ‘Australia Courts International War Crimes Statute’, Army: The Newspaper for Soldiers (Canberra), 7 June 2001. JSCOT Report, above n 25, 2.116-2.117. Ibid 3.89-3.93. Ibid 2.35-2.55.

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E The Ratiﬁcation Debate Intensiﬁes The ratiﬁcation debate intensiﬁed in April 2002, after the 60th nation ratiﬁed the Rome Statue, with the eﬀect that the Statute would enter into force on 1 July 2002. This meant that Australia could no longer be a member of the ﬁrst 60 ratifying nations, but could still ratify prior to the Statute coming into force and so participate in the ﬁrst Assembly of States Parties, the body that would manage the Court and appoint its 18 judges, as well as its prosecutors. In a speech in April 2001 to the Australian Red Cross International Humanitarian Law Committee in Perth, the Attorney-General said that the ICC was ‘too important to be derailed by innuendo and half-truths’ and suggested that ‘scurrilous myths’ were being spread by opponents of the Court as a campaigning of ‘deliberate scare-mongering’, particularly the notion that the Court would shape Australian domestic law by dictating law on matters such as abortion, marriage and homosexuality. He described Alan Jones’ comments about the eﬀect of the Court as ‘totally false and absurd’. At around this time the Law Council of Australia described those opposed to the Court as ‘ill informed minorities’. The debate within Australia became even further polarised when on 6 May 2002, George W. Bush sent a letter to the UN Secretary-General renouncing the United States’ earlier decision to become a signatory to the Rome Statute. Greg Sheridan, the Foreign Aﬀairs Editor for The Australian newspaper, argued that this was the correct thing to do, and that Australia should support and follow the US in this policy. A few days later, another columnist in The Australian, Janet Albrechtsen, compared the ICC with the September 11 attacks, writing that George Bush ‘knows an attack on democracy when he sees one. September 11 was one; the ICC is another – under the guise of internationalism’. She continued: Australia could do with a bit of Bush’s gutsy simplicity when it comes to protecting our democratic institutions. The ICC is a ﬂawed court crystallising everything that has gone wrong with international law in recent times … Should Australia ratify the treaty, the ICC says, magnanimously, that it won’t intervene if a member state ‘genuinely’ investigates the alleged crime. But the motley crew of ICC judges has absolute power to review and reject that country’s decision. As if this wasn’t enough, the ICC’s power is described in the highfalutin but nebulous language of war crimes, crimes 57 58 59

Emma MacDonald, ‘Criminal Court “Too Important” to Derail’, The Canberra Times (Canberra), 21 April 2001; Banham, above n 36. Anne Trimmer, President of the Law Council of Australia, ‘Australia Must Back International Court’, The Canberra Times (Canberra), 19 March 2001. Greg Sheridan, ‘Bush Court Ruling Puts our Jury out in the Cold’, The Australian (Sydney), 11 May 2002.

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against humanity and genocide. Western activist judges must be salivating. What could be more noble than applying your well-practised law-making skills to these amorphous notions? ... The ICC will be a court of politics, not of law.

It appears that these opponents of the ICC were unaware of the irony of arguing that Australia should respond to the perceived threat the Court posed to Australian sovereignty and independence by following the polices of the Bush Administration. In response to the US decision, Andrew Byrnes and Hilary Charlesworth urged that Australia ‘should not blindly follow the pathologically unilateralist strain of United States antipathy to international institutions’. On 14 May 2002, only a week after the US announced its decision to withdraw from the Rome Statute, JSCOT tabled its Report in Parliament, recommending that subject to certain other recommendations in the Report, Australia ratify the Rome Statute as soon as practicable. In her Foreword to the Report, Ms Bishop accepted that ratiﬁcation would entail some diminution of Australian sovereignty: The Committee recognises that Australia’s entry into any international treaty involves a degree of loss of sovereignty and therefore to ratify this Statute will necessarily involve a degree of voluntary surrender of exclusive criminal jurisdiction. However, the committee is also mindful of the beneﬁts to Australia and its defence forces, prisoners of war and civilian population that could ﬂow from the protection of an eﬀective international instrument dedicated to upholding established principles of international law.

The Committee also acknowledged that there were risks associated with how the ICC would evolve following establishment, but concluded that these risks could be mitigated by an appropriate level of monitoring and review of the ICC’s operations by Australia, and recommended that such steps be taken. The Committee 60 Janet Albrechtsen, ‘Global Justice Not Fine by Us’, The Australian (Sydney), 15 May 2002. 61 Andrew Byrnes and Hilary Charlesworth, ‘Action Urged on Statute’, The Canberra Times (Canberra), 18 May 2002. 62 JSCOT Report, above n 25, viii. 63 The Committee recommended that: – the Australian Government, pursuant to its ratiﬁcation of the Statute, table in Parliament annual reports on the operation of the International Criminal Court and, in particular, the impact on Australia’s legal system; and that – these annual reports stand referred to the Joint Standing Committee on Treaties, supplemented by additional Members of the House of Representatives and Senators if required, for public inquiry. JSCOT Report, above n 25, 3.57.

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concluded that the Court’s core objective – that of ending impunity for those who commit the most heinous of crimes – was an objective that Australia should support through ratiﬁcation and active participation in the ICC. The Committee further concluded that: – ratiﬁcation of the ICC Statute will not limit the rights of Australian citizens, or diminish the independence of Australia, or alter our internal system of government in any signiﬁcant way; – the risk that the domestic implementing legislation would be judged to be unconstitutional is minimal; – the crimes in the ICC Statute are not novel and, with the passage of the Government’s proposed implementing legislation, are deﬁned with the same degree of detail as other domestic criminal oﬀences; – the ICC will not operate in exactly the same way as an Australian court, but it will be based on universally recognised principles of justice, many of which are derived from common law traditions; – the ICC Prosecutor will be subject to controls and will have to justify and seek approval for investigations and prosecutions, although the systems of accountability are necessarily diﬀerent from those applying to oﬃcials in our domestic judicial system; and – the ICC will not inhibit ADF peacekeeping or other operations. In relation to the nature of the oﬀences under the Rome Statute, the Committee emphasised that the oﬀences would be enacted as oﬀences under Australian criminal law, to be heard before Australian courts in accordance with Australian standards of criminal justice. To reinforce the primacy of Australian criminal law within the framework of the complementarity principle, the Committee recommended that two amendments be made to the implementing legislation, explicitly restating the primacy of Australian domestic criminal jurisdiction over crimes within the ICC regime. 64 65

JSCOT Report, above n 25, 3.3. In its Report, above n 25, JSCOT states at 3.30-3.34: 3.30. While the Committee acknowledges this emphasis on Australia’s primary jurisdiction with respect to ICC crimes it considers that the term primary should be replaced by ‘primacy’ to emphasise that Australia will be well able to deal with speciﬁed oﬀences within the Australian legal system without recourse to the ICC. 3.31 To this end the Committee recommends the following modiﬁcations to the ICC bill. Recommendation 2 3.32 The Committee recommends that Clause 3 (2) of the International Criminal Court Bill be amended to read: Accordingly, this Act does not aﬀect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.

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The Committee also recommended a number of other amendments to Australia’s implementing legislation, and expressed a general caution that there ‘should be little diﬀerence between key deﬁnitions of crimes in the Statute, the Elements of Crimes document and the Australian legislation’. Ms Bishop also published a piece in The Australian discussing Australia’s involvement in the ICC and the reasons for JSCOT’s recommendation, tabled that week, to ratify the Rome Statute. In seeking to explain how the ICC would not adversely impinge on Australian sovereignty, she described the complementarity principle, and noted that the Court would not override domestic Australian criminal law: Should Australia ratify the ICC statute, we will enact domestic laws to cover war crimes, genocide and crimes against humanity. Australia, as a sovereign nation, will then have primary jurisdiction to bring to justice in this country – under our laws and within our legal system – any person who commits such crimes within Australia, or any Australian citizen who commits such crimes elsewhere.

Moreover, Ms Bishop noted that in recommending ratiﬁcation, JSCOT had also recommended that: the Australian Government, pursuant to ratiﬁcation of the ICC statute, table in parliament annual reports on the operation of the ICC and, in particular, any impact on Australia’s legal system. Such reports would then be referred to the committee and be the subject of a public inquiry. This signiﬁcant check on the accountability of the ICC will ensure that Australia retains an eﬀective watching brief over our participation in and support for the ICC, should it act or develop in a way adverse to Australia’s national interest or contrary to expectations of the maintenance of the primacy of Australian law.

66 67

3.33 In the same context the Committee believes that the text of the consequential amendments bill should also reﬂect this stronger approach. Recommendation 3 3.34 The Committee recommends that Section 268.1 (2) of the International Criminal Court (Consequential Amendments) Bill be amended to read: (2)(i) It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to oﬀences in this Division that are also crimes within the jurisdiction of that Court. (ii) Accordingly, this Act does not aﬀect the primacy of Australia’s right to exercise its jurisdiction with respect to oﬀences in this Division that are also oﬀences within the jurisdiction of the ICC. Ibid 3.51. Julie Bishop, ‘No Worries When We’ll Be a Judge’, The Australian (Sydney), 16 May 2002.

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In the same week, The Canberra Times argued in an editorial that: The present Government has shown itself to be subservient to the United States in virtually every aspect of its foreign policy. The US is against the treaty. It – along with China and Russia – will not ratify it. Australia must take an independent stand here and join with countries such as Britain, Canada, New Zealand, the European countries and scores of others to establish this tribunal which will play such an important part in stating and enforcing fundamental principles of human decency.

Despite JSCOT’s unequivocal recommendation in favour of ratiﬁcation, the Government remained divided on the question of the ICC. However, there was something of a silence from those who had suggested it would be unthinkable for the Government to reject the recommendation of JSCOT at a time when that Committee was headed by the avowedly anti-ICC Mr Thomson. At a meeting of the Government party room in early June 2002, some 25 MPs spoke against ratiﬁcation, despite JSCOT’s recommendations. For example, Bronwyn Bishop argued that ‘[i]f we ratify we cede sovereignty. We can have all the nicest assurances from all the nicest politicians in the country, but at the end of the day they can’t give us an assurance that an Australian will not be dragged before that court’.  A paper prepared by former High Court judge Sir Harry Gibbs setting out the arguments against ratiﬁcation was circulated at this time, but a counterpart paper setting out the arguments in favour of ratiﬁcation, prepared at the request of the Prime Minister by former High Court judge and Governor-General Sir Ninian Stephen, was apparently not circulated. Following that party room meeting, one MP declared the ratiﬁcation plan ‘dead in the water’, mirroring the language of US Senator Jesse Helms who had declared that any ratiﬁcation legislation would be ‘dead on arrival’ in the US Senate. In an interview at this time, Mr Downer described himself as a ‘passionate’ supporter of the Court, stating that:

68 69

70 71

72

Editorial, ‘Time to Lead Way on War Crime Treaty’, The Canberra Times (Canberra), 18 May 2002. For example, Devine had written: ‘I think it inconceivable that ratiﬁcation of the treaty will get a yes, and … it is out of the question for parliament to overrule the committee.’ Devine, above n 32. Quoted in Malcolm Cole, ‘Revolt Looms Over Treaty’, The Courier-Mail (Brisbane), 4 June 2002. Louise Dodson and Kerry Taylor, ‘MPs’ Revolt Threatens Bid to Join World Court’, The Age (Melbourne), 5 June 2002; Michelle Grattan, ‘Government Split Over Crimes Court’, The Age (Melbourne), 5 June 2002; Lincoln Wright, ‘PM Red-Faced Over Delay on World Court Decision’, The Canberra Times (Canberra), 5 June 2002. Dodson and Taylor, above n 71.

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I’m not a dewy-eyed multilateralist who believes we should sign every convention and statute that comes along ... But in this particular case I do think it’s an eﬀective way of ensuring the butchers of the future don’t get away with the sort of butchery we saw perpetrated by people like Pol Pot and president Milosevic in Yugoslavia.

On the same day, former Liberal Prime Minster Malcolm Fraser publicly urged the Australian Government to ratify the Rome Statute in accordance with JSCOT’s recommendation, in part because through active participation in the Court Australia could work to ensure that the operations of the Court would not be perverted in the manner its detractors feared. The deep divisions within the Government on the question of ratiﬁcation continued to widen over the following weeks, with some MPs threatening to cross the ﬂoor to vote against any Government decision to ratify. A concern for the Australian soldiers was often expressed, despite the fact that Chief of the ADF, Admiral Barrie had publicly argued that it was inconceivable that an Australian Government would fail to deal with any relevant oﬀences under Australian legal processes, and that the ratiﬁcation legislation would make genocide, crimes against humanity and war crimes part of Australia’s domestic law, thereby protecting Australian soldiers by ensuring that any breaches would be prosecuted in our courts, and not before the ICC. During these last intense weeks of the debate, Prime Minister Howard declared that he had ‘an open mind’ on the issue, and that he would continue to consult his colleagues prior to the Cabinet making a decision. Although he acknowledged that a number of MPs had ‘reservations’ about ratiﬁcation, and that he would not allow the ‘national interest or sovereignty of this country to be compromised’, he gave qualiﬁed support for the Court: I am not going to pass up an opportunity, and the Government is not, to be part of an international arrangement that will bring a greater guarantee that people are held to account for injustices and the atrocities they have committed.

However, the next week the Prime Minister travelled to Washington to press the case for a free trade agreement between Australia and the United States. During his week-long visit, he was briefed by the Deputy National Security Adviser

73 74 75 76

Sid Marris, ‘Downer Backs Worlds Court’, The Australian (Sydney), 3 June 2002 Malcolm Fraser, ‘Court Makes a World of Diﬀerence’, The Sydney Morning Herald (Sydney), 3 June 2002. ‘ICC Treaty No Threat to Australia’, The Courier-Mail (Brisbane), 5 June 2002. Steve Lewis, ‘Pressure Grows for International Court’, The Australian (Sydney), 6 June 2002.

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Stephen Hadley on the reasons for US opposition to the Court. Following this visit Mr Howard said that the US arguments against the ICC were ‘very powerful’, and that ‘the matter is being re-examined inside the Government and I’m listening to the arguments’. These arguments continued to be expressed in a party room meeting held on 18 June, at which 43 MPs spoke on the question of the ICC, and at which numbers remained fairly evenly divided on both sides of the debate. That same day, Sir Ninian Stephen took the unprecedented step of writing an open letter in The Age newspaper exhorting the Government to ratify the Rome Statute. F

Australia Ratiﬁes

Ultimately, despite the apparent ambivalence of the Prime Minister following his visit to Washington and the ongoing divisions within Government ranks, on 20 June 2002, following a ﬁnal party room meeting, Prime Minister Howard formally announced to Parliament that the Government had decided to ratify the Rome Statute. The Prime Minister went on to reassure Parliament that: The government is attaching a number of very important stipulations to that ratiﬁcation. They will further add to the guarantees that we believe already existed in relation to Australia’s sovereignty in these matters. Under the principle of complementarity under the statute, an Australian charged with an oﬀence under the code would be prosecuted and dealt with in accordance with Australian law unless Australia were judged to be either unwilling or unable to proceed with that prosecution.

One of the key ‘stipulations’ to ratiﬁcation referred to above was a declaration that Australia drafted and attached to its instrument of ratiﬁcation, emphasising the primacy of Australian law under the complementarity principle. That declaration states: The Government of Australia, having considered the Statute, now hereby ratiﬁes the same, for and on behalf of Australia, with the following declaration, the 77 78 79 80 81

Louise Dodson, ‘Australia Set to Reject Crimes Court’, The Age (Melbourne), 12 June 2002. ‘Cabinet Splits as PM Cools on War Court’, Sydney Morning Herald (Sydney), 13 June 2002. ABC Television, ‘Govt Divided over International Criminal Court’, The 7.30 Report, 16 June 2002, . Ninian Stephen, ‘Australia Must Ratify the International Court’, The Age (Melbourne), 18 June 2002. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 20 June 2002, 4063 ( John Howard, Prime Minister).

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terms of which have full eﬀect in Australian law, and which is not a reservation: Australia notes that a case will be inadmissible before the International Criminal Court (the Court) where it is being investigated or prosecuted by a State. Australia reaﬃrms the primacy of its criminal jurisdiction in relation to crimes within the jurisdiction of the Court. To enable Australia to exercise its jurisdiction eﬀectively, and fully adhering to its obligations under the Statute of the Court, no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certiﬁcate allowing surrender. Australian law also provides that no person can be arrested pursuant to an arrest warrant issued by the Court without a certiﬁcate from the Attorney-General. Australia further declares its understanding that the oﬀences in Article 6, 7 and 8 will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law.

Although this declaration essentially restates the complementarity principle enshrined in the Rome Statute, and in any case could have no substantive legal eﬀect on the Rome Statute itself, its primary purpose appears to have been to present a ‘compromise’ position to those opposed to ratiﬁcation, thereby resolving the potentially embarrassing conﬂict within the Government. However, as will be shown in the following section of this paper, the declaration embodies the approach to domestic implementation that had been taken, pursuant to which the oﬀences subject to the ICC regime were removed from their international legal moorings and translocated into a domestic criminal statute – a translocation that may have signiﬁcant and unintended legal consequences. Both the International Criminal Court Bill 2002 (Cth) and the International Criminal Court (Consequential Amendments) Bill 2002 (Cth) had their ﬁrst and second readings on 25 June. During the Second Reading Speech in relation to the ﬁrst Bill, the Attorney-General said that: Australia has a direct national interest in the establishment of a permanent International Criminal Court based on the role the court will play in enhancing international peace and security, including in our immediate region.

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Rome Statute, above n 1, ‘Declarations and Reservations: Australia Declaration’. Available at: . Commonwealth of Australia, Parliamentary Debates, House of Representatives, 25 June 2002, 4318-26 (Daryl Williams, Attorney-General).

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David Blumenthal The court’s establishment has been one of the government’s prime human rights objectives. The commission of serious international crimes poses a threat not only to individual countries but to the international community as a whole, and the court will deter individuals from committing these crimes … The court will not replace national courts but be complementary to them. This means that it cannot act except when national jurisdictions are unwilling or unable genuinely to investigate and prosecute. A fundamental element of the International Criminal Court statute is its recognition that it is the primary duty of every state to exercise its national criminal jurisdiction over these crimes. The principle that the International Criminal Court does not replace, or stand above, national courts is reﬂected in clause 3 of the International Criminal Court Bill, which reiterates that the International Criminal Court Act ‘does not aﬀect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC’ ... The government has decided that Australia’s ratiﬁcation will be accompanied by a declaration which will indicate how Australia will practically give eﬀect to the statute while fully adhering to our obligations. The declaration, as recommended by the Joint Standing Committee on Treaties, will reaﬃrm the primacy of Australian law and the Australian legal system.

The Attorney-General then delivered the Second Reading Speech in relation to the International Criminal Court (Consequential Amendments) Bill 2002 (Cth), stating that: The main purpose of the International Criminal Court (Consequential Amendments) Bill 2002 is to create, as oﬀences against the criminal law of Australia, each of the oﬀences over which the International Criminal Court has jurisdiction – genocide, crimes against humanity and war crimes. Many of these crimes are already crimes in Australia … However, it is important that Australia enact laws speciﬁcally covering all of the crimes in the International Criminal Court statute so that we can take full advantage of the principle and protection of complementarity. By enacting these crimes, Australia can be sure that we will be able to investigate and prosecute under Australian law persons accused of crimes within the jurisdiction of the International Criminal Court … While these crimes cover the same acts as the International Criminal Court statute, they are part of Australia’s criminal law and they have been deﬁned according to the same principles, and with the same precision, as other Commonwealth criminal laws. 84 85

Ibid 4320-1 (Daryl Williams, Attorney-General). Ibid 4326 (Daryl Williams, Attorney-General).

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Apart from some brief comment, there was virtually no debate on the ratiﬁcation process within the House of Representatives. The Bills received their ﬁrst and second readings in the Senate the following day, and although some debate occurred in the Senate on 27 June, and concern was expressed over the lack of time to consider such important legislation, both Bills were then passed without further amendment. Australia subsequently deposited its instrument of ratiﬁcation to the Rome Statute of the International Criminal Court at 10.00am on 1 July 2002, New York time, within hours of the deadline. Accompanying this instrument of ratiﬁcation was the declaration noted above, aﬃrming the primacy of Australia’s criminal jurisdiction in relation to crimes within the jurisdiction of the Court. IV

Problems with Australian Domestication of the Rome Statute Oﬀences

The conﬂict manifest in the political debate surrounding implementation of the Rome Statute was never fully resolved, and one of the central ideas fuelling opposition to Australian participation in the ICC – a belief that such direct engagement with international criminal law would compromise Australia’s sovereignty – ultimately found expression in the Australian legislation purporting to implement the provisions of the Rome Statute. As discussed above, the signing and ratiﬁcation of international treaties is an act of the Executive, and so even a signed and ratiﬁed treaty will only become an enforceable part of Australian law if its provisions are speciﬁcally adopted by the passage through Parliament of domestic legislation to that eﬀect. The Rome Statute was incorporated into domestic law through the two pieces of federal legislation noted above: the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth). The Commonwealth Criminal Code Act 1995 (Cth) (the ‘Criminal Code’) arose from an ambitious project by the Standing Committee of the Attorneys-General to modernise, simplify and unify the criminal law of Australia through a process

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Commonwealth of Australia, Parliamentary Debates, House of Representatives, 26 June 2002, 4497 (Patricia Draper, Member for Makin); Commonwealth of Australia, Parliamentary Debates, House of Representatives, 27 June 2002, 4761 (Peter King, Member for Wentworth). Commonwealth of Australia, Parliamentary Debates, Senate, 26 June 2002, 2717 (Amanda Vanstone, Minister for Family and Community Services and Minister Assisting the Prime Minister for the Status of Women). Commonwealth of Australia, Parliamentary Debates, Senate, 27 June 2002, 2822-36. This body is comprised of the federal Attorney-General, the federal Minister for Justice and Customs, the Attorneys-General of the Australian States and Territories, and the New Zealand Attorney-General.

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of review, consolidation and codiﬁcation.  Although the Criminal Code has only been adopted as a comprehensive statement of the criminal law in two Australian jurisdictions – the Commonwealth and the Australian Capital Territory – the Code contains a number of oﬀences within the constitutionally deﬁned ambit of federal power, and these federal oﬀences are applicable in all Australian jurisdictions. Because the Rome Statute oﬀences fall within Australian federal criminal jurisdiction, under the approach to the implementation of Australia’s Rome Statute obligations adopted by the Government, the Criminal Code was seen as the appropriate legislation within which to locate those oﬀences. The Criminal Code deﬁnes in Chapter 2 the general principles of criminal responsibility, including general defences to criminal liability. These general principles represent a rationalisation and codiﬁcation of the common law principles of criminal responsibility developed primarily by the Australian and English common law traditions, as modiﬁed by various statutory enactments. After stating these general principles of criminal liability, the Criminal Code then sets out in subsequent chapters the elements of most substantive criminal oﬀences within the ambit of federal jurisdiction. The International Criminal Court (Consequential Amendments) Act 2002 (Cth) (the ‘Act’) is the key piece of domestic legislation purporting to incorporate the oﬀences proscribed by the Rome Statute into domestic Australian law. Schedule 1 of the Act inserts a new Division into the Criminal Code. This new Division 268 is titled ‘Genocide, crimes against humanity, war crimes and crimes against the administration of justice of the International Criminal Court’, and it contains 124 sections divided into 10 subdivisions. Schedule 1 also inserts 27 new deﬁnitions into the ‘Deﬁnitions’ section of the Criminal Code. Thus through domestic enactment, the Criminal Code now includes a division setting out in detail the oﬀences subject to the jurisdiction of the ICC under the Rome Statute, and the requisite supporting deﬁnitions. The precise form of the ICC oﬀences inserted into the Criminal Code diﬀers from that in the Rome Statute, although most of the changes are not substantive. The purpose behind the changes was to ensure that the ICC oﬀences were pre90 Under Australia’s federal structure, criminal law exists at both state and federal level. It was intended that the Criminal Code would be agreeable to all jurisdictions and voluntarily adopted by them, thereby creating a uniform criminal law for all of Australia, and bypassing the constitutional barrier to imposing such a regime. 91 Chapter 2 of the Code is titled ‘General principles of criminal responsibility’. Section 2.1 states that: The purpose of this chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any oﬀence, irrespective of how the oﬀence is created. 92 The other piece of domestic implementing legislation is the International Criminal Court Act 2002 (Cth).

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sented in a manner that is consistent with the rest of the Criminal Code, with the precise elements of each separate oﬀence spelt out in detail, along with the maximum penalties applicable. Although superﬁcially complex, this approach was adopted to ensure clarity, consistency and certainty with respect to those oﬀences, in accordance with the general objectives of the Code. Thus for the most part, the Elements of Crimes under the Rome Statute are now faithfully reproduced as domestic oﬀences under Division 268 of the Criminal Code. A The Applicable Law As detailed above, when the Rome Statute was ﬁnally ratiﬁed, the Australian Government sought to mollify critics of the ICC regime by lodging a declaration that stipulated Australia’s ‘understanding that the oﬀences in Article 6, 7 and 8 will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law’. More signiﬁcantly, although the oﬀences created under arts 6-8 of the Rome Statute are clearly the product of international jurisprudence, rather than adopting them outright in a discreet legislative instrument referenced to their associated international jurisprudence, the Australian Government chose instead to incorporate those oﬀences into the existing Criminal Code. The eﬀect of this translocation into the Criminal Code is that the Rome Statute oﬀences are to be interpreted by Australian courts with reference to the general principles of criminal responsibility set out in Chapter 2 of the Code. The domestication of the Rome Statute oﬀences by wholesale incorporation into a division of the Criminal Code created the foundation for Australia to carry out its obligations under the complementarity principle, and in so doing partially assuaged the concerns of domestic critics of the ICC regime. In particular, by eﬀectively translating the Rome Statute oﬀences into Australian criminal oﬀences to be adjudicated by Australian courts, the Government was respond93

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As the Explanatory Memorandum to the Act states, ‘[t]he crimes in this schedule are based closely on the way that the ICC crimes are deﬁned in the draft text of the Elements of Crimes. These crimes have been formulated consistent with Commonwealth criminal law policy, with a focus on detailing the precise conduct which is prohibited in express terms, and the mental elements that are required.’ Prior to the passage of the ICC implementing legislation, Australian did have some domestic war crimes oﬀences in its statute books. However, as the Explanatory Memorandum to the International Criminal Code (Consequential Amendments) Bill 2002 (Cth) states, Division 268 replaces Part II of the Geneva Conventions Act 1957 (Cth), by restating the oﬀences previously contained in that Act in ‘greater detail’ in the new Division 268 of the Criminal Code. See also Jessica Howard and Timothy L.H. McCormack, ‘Australia’ in Ben Brandon and Max du Plessis (eds), The Prosecution of International Crimes: A Practical Guide to Prosecuting ICC Crimes in Commonwealth States (2005). See Criminal Code Act 1995 (Cth) Ch 2.

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ing to the concerns of those who had forcefully argued that ratiﬁcation of the Rome Statute represented an aﬀront to Australian sovereignty and a threat to Australian citizens, who would otherwise have been subject to vaguely deﬁned and alien new oﬀences under the Statute, prosecuted before a foreign and potentially malicious international tribunal. However, the approach to the implementation of the Rome Statute oﬀences taken by the Australian Government has the potential to create signiﬁcant diﬃculties in practice. To begin with, the declaration by the Australian Government regarding the interpretation of the domesticated Rome Statute oﬀences appears to be in direct conﬂict with the hierarchy of applicable law to be applied by the ICC itself in interpreting oﬀences within its jurisdiction, as explicitly mandated by the Rome Statute: Article 21: Applicable Law 1. The Court shall apply: (a) In the ﬁrst place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conﬂict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

Thus while the ICC will seek to interpret the Elements of Crimes with primary reference to international jurisprudence, the Australian courts are called upon to do so with primary reference to domestic Australian law, as stipulated in Australia’s declaration. Another signiﬁcant problem with Australia’s purported domestication of the Rome Statute oﬀences is that some of the general principles of criminal liability set out in Chapter 2 of the Criminal Code, all of which were developed in relation to domestic criminal oﬀences committed during times of peace, may be inconsistent with relevant principles of international legal jurisprudence relating to crimes committed during armed conﬂict. In eﬀect, the process of implementation adopted by Australia has led to the separation of the Rome Statute oﬀences from the body of supporting international criminal law and jurisprudence that was developed around them, much of which relates speciﬁcally to the context of armed conﬂict. Hence the insertion of the ICC oﬀences into the Criminal Code has the eﬀect of decontextualising those oﬀences by treating them as if they are domestic criminal prohibitions to which domestic principles and deﬁnitions of

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criminal responsibility, developed in peacetime, apply. While this domestication of the Rome Statute oﬀences may give some comfort to those who argued that the oﬀences were dangerously vague doctrines of international law, ripe for misuse by a malicious and politically motivated ICC, the severing of these oﬀences from their international legal moorings may have unintended negative consequence to Australians now subject to them. Section 15AB of the Acts Interpretation Act 1901 (Cth) may provide a partial solution to speciﬁc problems of interpretation arising from the domestic orientation of the Australian ICC regime, in so far as this provision allows Australian courts to interpret domestic legislation with reference to ‘any treaty or other international agreement that is referred to in the Act’. However, such extrinsic material may be used only to resolve an ambiguity or to avoid a manifestly absurd or unreasonable result with respect to a provision, having regard to the objects of the Act. Accordingly, while s 15AB does provide a means by which Australian courts can refer to international jurisprudence in limited circumstances, the existence of the provision does not alter the fact that the Criminal Code purports to be a self-contained and comprehensive codiﬁcation of federal criminal law, including the Rome Statute oﬀences contained in Division 268, and in relation to which international law is, by deﬁnition, extrinsic. Moreover, the AttorneyGeneral was explicit in his Second Reading Speech that while the oﬀences enacted under Division 268 ‘cover the same acts as the International Criminal Court statute, they are part of Australia’s criminal law and they have been deﬁned according to the same principles … as other Commonwealth criminal laws’. For these reasons, while S 15AB may be used in an ad hoc manner by courts to resolve ambiguities or to avoid interpretations of Division 268 oﬀences that would have absurd or unreasonable eﬀect, the existence of s 15AB cannot, by itself, reverse the domestic orientation of the oﬀences under the Australian regime.

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Section 15AB of the Acts Interpretation Act 1901 (Cth) provides: (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to conﬁrm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 25 June 2002, 4326 (Daryl Williams, Attorney-General).

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Australia’s attempt to domesticate the Rome Statute oﬀences by separating those international crimes from their surrounding international legal jurisprudence may ultimately have the eﬀect of greatly exacerbating the very risks that this domestic emphasis was intended to ameliorate. As will be demonstrated, the ill-founded mistrust of international legal jurisprudence by sectors within Australia, in conjunction with the legitimate objective of maintaining a comprehensive and self-contained Criminal Code, may give rise to a number of legal and practical problems. Ironically, the attempt to protect Australia and Australians from what critics of the ICC perceived as a potentially unjust and alien legal regime may in practice expose Australian citizens to legal liabilities that do not exist at international law, and may thus undermine conﬁdence in Australia’s involvement in the ICC regime. B The Oﬀence of Wilful Killing One of the clearest illustrations of the problems arising from Australia’s domestication of the Rome Statute oﬀences arises with respect to the oﬀence of ‘wilful killing’. The potential problems associated with this oﬀence as it appears in the Criminal Code have been analysed in an as-yet unpublished paper by Jeremy Gans, and an article by Robert McLaughlin and Bruce Oswald. The detailed content of their arguments will not be reproduced here, in part because the potential problems associated with the Criminal Code oﬀence of wilful killing are being discussed here primarily to provide an example of the way in which the ideological and political tensions arising in the national debate regarding the Rome Statute, and that were never properly resolved prior to implementation, have become manifest in the form of conﬂicts and inconsistencies within the law itself. The oﬀence of wilful killing is set out in s 268.24 of the Criminal Code as follows: (1)

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A person (the perpetrator) commits an oﬀence if: (a) the perpetrator causes the death of one or more persons; and (b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and

Jeremy Gans, ‘Australia’s Reckless Enactment of the War Crime of Wilful Killing’, unpublished paper, based on Jeremy Gans, ‘En-Coding the Rome Statute’ (Paper delivered at Twilight Seminar on the Implementation of the Rome Statute for the International Criminal Court in Australia, presented by the Federal Court of Australia and the Institute for Comparative and International Law, The University of Melbourne, 29 April 2003). Robert McLaughlin and Bruce Oswald, ‘“Wilful Killing” during Armed Conﬂict: Is There a Defence of Proportionality in Australia?’ (2007) 18 Criminal Law Forum 1. This article provides a detailed analysis of the elements of s 268.24, and of the various problems that would be likely to arise in the context of a prosecution pursuant to this provision.

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(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and (d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conﬂict. Penalty: Imprisonment for life Strict liability applies to paragraph (1)(b).

The oﬀence of wilful killing was ﬁrst introduced as an oﬀence under Australian law by the Geneva Conventions Act 1957 (Cth). This legislation criminalised wilful killing as a ‘grave breach’ of the Geneva Conventions, and deﬁned the oﬀence with reference to the international law of armed conﬂict as derived from those Conventions. In contrast, the domesticated oﬀence of ‘wilful killing’ under s 268.24 of the Criminal Code is comprehensively deﬁned with reference to Australian domestic criminal law, rather than the international jurisprudence from which the oﬀence is derived. This will have the eﬀect of altering the nature and scope of the oﬀence. The primary problem with respect to the oﬀence of wilful killing as deﬁned in the Criminal Code is that in applying to that oﬀence the general principles of domestic criminal responsibility set out in Chapter 2 – principles that do not attach to the oﬀence under international jurisprudence – and by severing those principles of international law that are usually applied to the oﬀence, the Australian version of the oﬀence may have an excessively wide ambit, exposing Australians to prima facie criminal liability for the wilful killing of any ‘protected person’ in situations of armed conﬂict. This has led Gans to describe the oﬀence of wilful killing under the Criminal Code as an ‘egregious bastard child of international humanitarian law and federal criminal law’, and to conclude that: by deferring so completely to the principles in Chapter 2 of the Criminal Code, the drafters of s.268.24 eﬀectively imported most of the Australian domestic law of murder into the ﬁeld of war … As a result, Australia has come close to being (surely) the ﬁrst nation in history to apply the same law of homicide to both military operations abroad and civilian life at home.

C Wilful Killing and Recklessness Article 30(1) of the Rome Statute provides that: Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

100 Gans, above n 98.

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Section 5.6(2) of the Criminal Code provides a very diﬀerent approach to the mental element of oﬀences within its ambit, stating that: If the law creating an oﬀence does not specify a fault element for a physical element that consists of a circumstance or result, recklessness is the fault element for that physical element.

Section 268.24(1)(c) of the Criminal Code explicitly states that the oﬀence of wilful killing can be committed with a mental state of either ‘knowledge’ or ‘recklessness’ as to the protected status of the persons killed. ‘Recklessness’ is deﬁned in the Criminal Code as follows: Section 5.4: Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustiﬁable to take the risk.

The mental state of ‘recklessness’ under s 5.4 is in some respects a codiﬁcation of Australian High Court authority in relation to the mental element of murder, in which the High Court held that acts of reckless killing were morally equivalent to acts of intentional killing, and hence that both mental states were suﬃcient to found a charge of murder. However no mental state equivalent to recklessness attaches to the oﬀence of wilful killing in international jurisprudence, with the eﬀect that the Criminal Code oﬀence of wilful killing appears in this respect to be broader than its international counterpart. Indeed, the application of the Australian domestic concept of ‘recklessness’ to the oﬀence of wilful killing has created an oxymoronic oﬀence of ‘wilful killing by recklessness’.

101 High Court authority provides that in addition to murder constituted by causing death while having an intent to kill or cause grievous bodily harm: It should now be regarded as settled law in Australia that … a person who, without lawful justiﬁcation or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. R v Crabbe (1985) 156 CLR 464, 469-70. See also Pemble v R (1971) 124 CLR 107. Although the Criminal Code deﬁnition of ‘recklessness’ diﬀers slightly from the High Court deﬁnition, both deﬁnitions are nevertheless founded on the common concept of a moral equivalence between intention and recklessness. 102 Gans, above n 98.

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D The Principles of Military Necessity and Proportionality Under international law, war crimes are by deﬁnition committed in the context of and associated with an armed conﬂict. Clearly this context diﬀers signiﬁcantly from that of peace time, in that the wilful killing of certain persons, including in some cases ‘protected persons’, may in the circumstances of an armed conﬂict form part of a legitimate and legal military strategy. In essence, under international humanitarian law, the war crime of wilful killing is committed only where the perpetrator has caused the death of a ‘protected person’ in circumstances where the perpetrator knows of the factual circumstances that establish that the person or persons are so protected, and that killing cannot be justiﬁed under the doctrine of military necessity and proportionality. Military necessity and proportionality are two key doctrines within the international law of armed conﬂict, but they do not have direct correlates in Australian domestic criminal law as set out in the Criminal Code. Consequently, it appears that the Australian version of the oﬀence of wilful killing may be committed whenever a soldier knowingly, or even recklessly, causes the death of a protected person – for these purposes, let us say a civilian – regardless of the countervailing considerations of military necessity and proportionality that usually operate to circumscribe the ambit of this oﬀence in the context of armed conﬂicts. There is little basis for the courts to import considerations of military necessity and proportionality into s 268.24. As noted above, the Criminal Code purports to comprehensively set out the elements relevant to each oﬀence, and s 268.24 makes no mention of factors such as military necessity and proportionality. The comprehensive nature of the Criminal Code is further buttressed by the Second Reading Speech, in which the Attorney-General explicitly stated that 103 The term ‘protected persons’ is deﬁned in the Geneva Conventions, and in addition to civilians includes military personnel who are hors de combat because they are wounded or sick, prisoners of war, and military medical and religious personnel. See Geneva Conventions, above n 44. With reference to civilians, see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 8 June 1977, 1125 UNTS 3, art 49 (entered into force 7 December 1978) (‘Additional Protocol I’). 104 As McLaughlin and Oswald explain, the oﬀence of wilful killing under international law must be understood in the context of the Geneva Conventions and Additional Protocol I, and they argue that no charge of wilful killing could succeed without reference to the concepts of proportionality and military necessity as contained in provisions such as art 57 of Protocol I: above n 99. See Additional Protocol I, above n 103, art 57(2)(1). Article 57(2)(1) states that during the conduct of military operations, one of the precautions to be taken in attack is to: (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated … (emphasis added).

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the provisions of Division 268 were to be interpreted with reference to domestic law, rather than international law. Moreover, because factors such as military necessity are expressly incorporated in the deﬁnition of other oﬀences in Division 268, under standard canons of statutory interpretation, courts would be reluctant to read similar factors into s 268.24, which is silent on the matter. It may be argued that the concept of proportionality can be read into s 268.24 because the deﬁnition of ‘recklessness’ under S 5.4 includes the concept of an ‘unjustiﬁable’ risk, and proportionality will be a relevant factor in assessing the whether a risk was justiﬁable. However, using the general deﬁnition of recklessness under the Criminal Code as a back door through which to import the international doctrines of proportionality and military necessity is highly problematic. Arguably the word ‘wilful’ most closely equates to the concept of ‘intention’ under the Criminal Code, however, unlike the deﬁnition of ‘recklessness’, neither the deﬁnition of ‘intention’ (nor ‘knowledge’) incorporate any concept of ‘unjustiﬁable’ risk: Section 5.2: Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. Section 5.3: Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 105 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 25 June 2002, 4326 (Daryl Williams, Attorney-General). 106 For example, s 268.29 of the Criminal Code (War crime – destruction and appropriation of property), provides in part: (1) A person (the perpetrator) commits an oﬀence if: (a) the perpetrator destroys or appropriates property; and (b) the destruction or appropriation is not justiﬁed by military necessity; and (c) the destruction or appropriation is extensive and carried out unlawfully and wantonly; and (d) the property is protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and (e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and (f ) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conﬂict. (Emphasis added). See also McLaughlin and Oswald, above n 99. 107 The Latin maxim usually applied is expression unius est exclusion alterius.

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Clearly there is no basis in law or in logic to argue that the key concepts of proportionality and military necessity will only be relevant to a charge of wilful killing in circumstances where the perpetrator has acted recklessly, but should be excluded where the perpetrator has acted with intention or knowledge. Hence a paradox has been created whereby the Criminal Code oﬀence of wilful killing has in one way been inappropriately widened by attaching to it the domestic concept of ‘recklessness’, and yet this same concept may be used to attempt to narrow the ambit of the oﬀence by using it to import limiting principles of military necessity and proportionality. Yet these same limiting principles would appear to be unavailable where a person accused of wilful killing under Australian law has acted with what is in fact the appropriate mens rea for the oﬀence – intention or knowledge. E

Protected Persons

Another signiﬁcant problem with the scope of s 268.24 arises because the Criminal Code extends the deﬁnition of ‘protected persons’ beyond those protected under one or more of the Geneva Conventions to also include those protected ‘under Protocol I to the Geneva Conventions’. In this way, the Criminal Code creates an oﬀence of wilful killing which has a much greater ambit than the international version of the oﬀence contained in the Rome Statute, which makes no mention of persons protected under Additional Protocol I. Gans argues that the inclusion of the reference to Additional Protocol I in s 268.24 ‘has the disastrous eﬀect of criminalizing the intentional or reckless killing of non-combatant civilians during, rather than merely after, a war’. This extension of the deﬁnition of ‘protected persons’ under s 268.24 in conjunction with the other matters noted above, means that if civilian deaths are caused by Australian military operations, and those deaths were foreseen by Australian personnel as the probable or inevitable consequence of those operations, then those personnel will prima facie be war criminals for having wilfully killed those ‘protected persons’ under s 268.24. This is clearly an untenable situation, given that incidental civilian deaths are frequently a foreseeable though undesired consequence of legitimate military operations. F Available Defences 1

The Use of General Criminal Code Defences in relation to a Charge of Wilful Killing

It may be argued that the potentially broad ambit of s 268.24 is limited by the availability of general defences to criminal responsibility set out in Chapter 2

108 Gans, above n 98.

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of the Criminal Code, such as sudden or extraordinary emergency and selfdefence. While there will certainly be some circumstances in which a person accused of wilful killing might be able to rely on one or both of these defences, the fact that these are formal defences means that the onus is placed on the accused person to raise evidence of the extenuating circumstances that comprise the defences. This is fundamentally diﬀerent from treating the absence of such extenuating circumstances as a substantive element of the oﬀence, which must always be proved by the prosecution beyond reasonable doubt. Hence the availability of such defences does not adequately address the problem of an excessively wide deﬁnition of wilful killing, as accused persons would still be exposed to prima facie liability for wilful killing in an inappropriately wide range of circumstances, and would then be forced to defend themselves by raising a formal legal defence. 109 Criminal Code Act 1995 (Cth) s 10.3: Sudden or extraordinary emergency (1) A person is not criminally responsible for an oﬀence if he or she carries out the conduct constituting the oﬀence in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct reasonably believes that: (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the oﬀence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency. 110 Criminal Code Act 1995 (Cth) s 5.6(2) 10.4: Self-defence (1) A person is not criminally responsible for an oﬀence if he or she carries out the conduct constituting the oﬀence in self-defence. (2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary: (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or (c) to protect property from unlawful appropriation, destruction, damage or interference; or (d) to prevent criminal trespass to any land or premises; or (e) to remove from any land or premises a person who is committing criminal trespass; and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional inﬂiction of death or really serious injury: (a) to protect property; or (b) to prevent criminal trespass; or (c) to remove a person who is committing criminal trespass. (4) This section does not apply if: (a) the person is responding to lawful conduct; and (b) he or she knew that the conduct was lawful.

13

Australian Implementation of the Rome Statute

323

Moreover, the general defence of self-defence under s 10.4 may be singularly inappropriate to situations of armed conﬂict. Section 10.4 speciﬁcally excludes acts causing death or really serious injury for the purpose of protecting property, yet under international law, during an armed conﬂict the protection of property may clearly form a legitimate basis for the use of lethal force. Section 10.4 also excludes acts of self-defence in response to ‘lawful conduct’ of another where the perpetrator knew those acts were lawful. This exclusion is also clearly inconsistent with situations of armed conﬂict, in which belligerents on both sides may be acting ‘lawfully’. 2

A Defence of ‘Lawful Authority’

The general defence of ‘lawful authority’ under s 10.4 of the Criminal Code is also problematic in the context of the war crime of wilful killing, as that defence states that ‘a person is not criminally responsible for an oﬀence if the conduct constituting the oﬀence is justiﬁed or excused by or under a law’. The potentially wide ambit of this defence in a situation of armed conﬂict appears to conﬂict directly with the jurisprudence surrounding the analogous defence of ‘superior orders’ under international law. At Nuremberg, and in the subsequent criminal tribunals for the former Yugoslavia, Rwanda and Sierra Leone, the defence of ‘superior orders’ could not be raised as a defence to liability for a listed oﬀence, although evidence of such orders could be raised in mitigation of sentence. Under art 33 of the Rome Statute, the defence of superior orders is not prohibited, but its availability is nevertheless tightly circumscribed, in that the defence can be raised only where: 1. The person was under a legal obligation to obey orders; 2. The person did not know that the order was unlawful; 3. The order was not manifestly unlawful (and for the purposes of this Article, orders to commit genocide or crimes against humanity are manifestly unlawful.) The constraints set out in art 33 do not apply to the domestic defence of lawful authority under the Criminal Code, with the eﬀect that in most situations of armed conﬂict, Australian military personnel will be able to argue that they were 111

Charter of the International Military Tribunal, art 8, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed in London on 8 August 1945, 82 UNTS 279, art 8 (‘Nuremberg Charter’); Statute of the ICTY, above n 2, art 7(4); Statute of the ICTR, above n 2, art 6(4); Statute of the Special Court for Sierra Leone, art 6(4), annexed to Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed 16 January 2002, reproduced in Appendix II to Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, UN Doc S/2002/246, 8 March 2002, Annex.

324

David Blumenthal

acting under the ‘lawful authority’ of the ADF. Hence the wide availability of the domestic defence of ‘lawful authority’ has the potential to undermine the eﬃcacy of the oﬀence of wilful killing under Australian law, and indeed, to undermine the eﬃcacy of many oﬀences under the regime. Although the defence of lawful conduct is an appropriate general defence to criminal liability in the domestic context, the apparent availability of that defence to a person accused of an oﬀence under Division 268 provides a clear example of the legal diﬃculties that can arise when international criminal oﬀences, developed in the context of armed conﬂicts, are severed from the international jurisprudence in which they evolved. G Conclusion on Problems with the Crime of Wilful Killing An attempt was made to resolve some of the key concerns raised in the debate surrounding the ICC in Australia by incorporating the Rome Statute oﬀences into domestic Australian law via insertion in the Criminal Code. However, this domestication of international oﬀences may give rise to a number of problems in practice. By way of example, the attempt to domesticate the oﬀence of wilful killing by separating it from its international legal moorings and incorporating it into domestic Australian criminal law appears to have greatly broadened the scope of the oﬀence, so that Australian military personnel engaged in armed conﬂicts may be charged with the war crime of wilful killing in an unjustiﬁably broad range of circumstances. Paradoxically, the process of domestication has rendered the oﬀence of wilful killing much more threatening to Australian military personnel than is the international version of the same oﬀence. At the same time, subjecting the oﬀence of wilful killing to the general Criminal Code defence of lawful authority may signiﬁcantly undermine its practical eﬃcacy, without resolving any of the problems noted above with respect to its inappropriately expansive ambit. Even if the many theoretical problems with the Criminal Code oﬀence of wilful killing are never demonstrated in practice as a consequence of the exercise of prosecutorial discretion and other mechanisms to prevent inappropriate charges being brought, the ﬂaws in the oﬀence as it is presently drafted are nevertheless undesirable. An oﬀence of such a serious kind, punishable by life imprisonment, should not exist in such a ﬂawed condition in a modern statute like the Criminal Code, designed as it was to simplify and rationalise the criminal law. Moreover, the existence of such a potentially problematic oﬀence has the potential to undermine public support for the ICC project in Australia, by providing a concrete example of how Australians may unjustiﬁably be put at risk by Australia’s accession to the jurisdiction of the ICC and the oﬀences within its purview.

13

Australian Implementation of the Rome Statute

V

325

Conclusion

The Nuremberg Trial signiﬁed a radical break from the past, in that individuals who had waged aggressive war and committed atrocities were not summarily executed upon capture in an act of vengeance, but were tried before an international court of law for the criminal oﬀences that their conduct was alleged to constitute. However, while the Nuremberg Trial represented a signiﬁcant step toward the establishment of an international rule of law, it took over 50 years for a permanent international criminal court to be established in the form of the ICC. Opposition to the establishment of the ICC was considerable, and was centred on the concern that submission to the jurisdiction of an international court would pose an unacceptable threat to and diminution of national sovereignty. This concern was powerfully expressed even in countries that ultimately ratiﬁed the Rome Statute, including Australia. The ICC began its work in 2002, and the various fears expressed by its opponents have not yet materialised. However, signiﬁcant opposition to the Court continues to undermine its capacity to fulﬁl the lofty purposes for which it was established, and of particular signiﬁcance in this regard is the ongoing refusal of the world superpower, the United States, to ratify the Rome Statute. Ultimately, it appears certain that the most signiﬁcant ideological legacy of Nuremberg – the concept of an international rule of law – will always exist in a state of tension with the concept of national sovereignty, and that work must continue to ﬁnd an accommodation between these competing ideas. In this regard, the inspiring and cautionary words of Justice Jackson, expressed in a speech to the American Society of International Law one year before the Nuremberg Trial commenced, continue to resonate today: … international law is an existing and indestructible reality and oﬀers the only hopeful foundations for an organized community of nations. There is no paradox in this. Those who best know the deﬁciencies of international law are those who also know the diversity and permanence of its accomplishments and its indispensability to a world that plans to live in peace … I am not one who expects the world to be remade by a single document or a single conference, or in a single decade, or even in a single century. One who contemplates the slow and evolutionary nature of all advancement in the ﬁeld of law will expect no miracles now.

112 Justice Robert H. Jackson, ‘The Rule of Law Among Nations’ (1945) 31 American Bar Association Journal 290.

Index

A Adenaur, Konrad, 26 Aggression acts not amounting to war, 161-165 acts of, 161-165 aggressor, draft deﬁnition of, 148 crimes against peace as predecessor of, 138, 167 criminalisation of, 105-107 deﬁnition, abandonment of attempts, 149 advance, in, 147 dictionary, 151 Draft Treaty of Disarmament and Security, in, 146-147 Draft Treaty of Mutual Assistance, in, 146 Geneva Protocol, in, 147 IMT Charter negotiations, 150 UN Charter, provisions of, 149 ICC jurisdiction, Assembly of States Parties, Working Group, 133 debate as to, 131-132 determination as to existence of, 131-132 Preparatory Commission, proposals of, 133 qualiﬁed, 132-133 identiﬁcation of acts of, 162 importance of crime of, 132 International Criminal Court, lack of jurisdiction, 231, 233 international responsibility, 135 invasions, 161-165 jurisdiction over, 109 Nazi regime, targets of, 152-154

origin of term, 145 recognition of, 145-151 self-defence as justiﬁcation, 148, 159161 state act element of, debate as to, 131 deﬁnition, 134-138 status of debate, 134-138 threshold levers, 136-137 war of aggression, as, 136 war, use of term, 167 USSR, war by Germany against, 153 war of, capacity to provide assistance to third state, object of disabling, 159 deﬁnition, 151 end of currency of term, 166 meaning, 140-161 occupation or conquest, object of, 152-158 self-defence, in, 159-161 state act element, deﬁnition of, 136-138 third party, in support od, 158 US Military Tribunal deﬁnition, 141 violence, reference to, 141 war, interchange of terms, 150-151 Auschwitz Allies’ knowledge of, 79 Auschwitz Trial international community, impact on, 33 issues, 31 key event for German society, as, 30-31 signiﬁcance of, 29, 31 support for and opposition to, 31-32 victims, presence of, 31 Australia

328

Index

Criminal Code Act, aim of, 311 consequential amendments, 312 criminal responsibility, general principles of, 312 defences, 321-324 ICC oﬀences inserted in, 312-313 military necessity, principle of, 319321 oﬀences in, 312 proportionality, principle of, 319-321 protected persons, 321 recklessness under, 317-318 wilful killing, oﬀence of. See wilful killing, below criminal law, 45 former Yugoslavia, nationals ﬁghting in, 41-42 international criminal law matters in, 259-260 international law, relationship with, 285-286 Japan, historic fears of, 240-241 Japanese war criminals, prosecution of, determination for, 243 number of trials, 245 postscript to, 256 return to Japan, 256 sections, 257 Webb enquiries, 243-244 Joint Standing Committee on Treaties, establishment of, 286 Report on Rome Statute, 303-306 Rome Statute, consideration of, 292-293 mass killers taking refuge in, 94 military tribunals, 103 Nazi war crimes, investigation of, Aarons, by, 40 Berezovsky, proceedings against, 43 lessons of, 42-43 Menzies Report, 41 Ozlis, case against, 43 Polyukhovich, trial of, 42-43 Special Investigations Unit, 40-42 trials, 42-43 Wagner, case against, 43 Refugee Convention Article 1F,

applicants supplying information leading to war crime, cases involving, 277-278 choice of international instruments in interpreting, 265-268 command responsibility, person with, 279-280 correct interpretation, importance of, 263 crimes against humanity, ambit of, 269-272 defences, availability of, 272-276 deﬁnitions, range of, 263-265 determining application of, 262 domestic implementation, problems of, 281-282 issues, 280-281 member of organisation involved in atrocities, position of, 278-279 Rome Statute, implementation of, accountability, issue of, 299-300 amendments to legislation, recommendations, 305 applicable law, 313-316 Australian defence force, impact on, 300-301 constitutionality of, 301 crimes, uncertainty as to scope and meaning, 295-299 debate, 232, 284, 286-287 defences, 321-324 disagreement as to, 293 domestication of oﬀences, 311-324 existing law, codiﬁcation of, 298-299 Government, division in, 306-307 ICC as threat to national sovereignty, issue of, 294-295 intensiﬁcation of debate, 302-308 intention to ratify, announcement of, 286 interpretation of oﬀences, 313 interpretation, problems of, 315 JSCOT, consideration by, 292-293 key issues, 292-301 local concerns, 288 military necessity, principle of, 319321 negotiations, role in, 288

Index primacy of Australian law, 308-309 proportionality, principle of, 319-321 protected persons, 321 ratiﬁcation, 308-311 statutory provisions, 95, 250, 284, 309-311 support, early indications of, 287289 US position, inﬂuence of, 302-303, 307-308 wilful killing, oﬀence of. See wilful killing, below treaties, ratiﬁcation of, 286 War Crimes Act, 41, 250, 253, 259 War Crimes Commission, 243 war crimes program, 239 army, role of, 247, 250 death sentences, 251 international humanitarian law, strengthening, 248-250 lessons of, 247-248 outside pressures, vulnerability to, 255 postscript to, 256 resources, 253-255 victors’ justice, 250-253 war crimes victims, migrants as, 40 White Australia Policy, 241 wilful killing, Criminal Code defences, avaiability of, 321-323 defences, 321-324 lawful authority, defence of, 323-324 military necessity, principle of, 319321 oﬀence of, 316-317 problems with in ICC context, 324 proportionality, principle of, 319-321 protected persons, 321 recklessness, 317-318 self-defence, in, 322-323 sudden or extraordinary emergency, in, 322

B Birkett, Sir Norman, 5-6

329

C Cambodia Extraordinary Chambers, 205, 212 Khmer Rouge, acceptance by international community, 90 Khmer Rouge trials, framework for, 77 prosecutorial strategies, 66-67 Central Europe Nazi collaborators, post-war activities, 74 Conquest deﬁnition, 157 war of aggression with object of, 152158 Conspiracy criminal responsibility, as basis for, 109-115 substantive oﬀence, to commit, 114 terrorism oﬀences, to commit, 112-114 crimes against humanity conventions, 71-72 elements of, 73 international framework for, 70 civilian population, against, 270-271 defences, 272-276 deﬁnitions, 263-268 equal and impartial treatment of, 95 instruments in force at time of committing, interpretation according to, 265-268 nature of, 108-109 Nuremberg Charter, in, 108 police, actions against, 272 Refugee Convention Article 1F, examination in context of, 269-272 war, in context of, 108-109 crimes against peace international framework for, 70 aggression, as predecessor of, 138, 167 categories of, 105 deﬁnition, 140-141, 263-268 instruments in force at time of committing, interpretation according to, 265-268 international criminal law, development of, 109

330

Index

invasion as, 165 jurisprudence. 138 Nuremberg Charter, 110 origins of, 138-139 Tribunals, handling by, 138-139

D Death sentence Australian war crimes program, in, 251 Iraqi High Tribunal, capacity of, 226

E East Timor Special Panels for Serious Crimes administration, 216 due process, importance of, 216 establishment of, 60, 205 extradition, limited success in,’ 215 functioning of, 214-216 funding, 216 institutional design, 212-214 judges, 215 jurisdiction, 213 place of trial, 216 practice of, 212 East Timor/Timor Leste acquiescence in crimes in, 89 Ad Hoc Human Rights Court, 60-63 civil war, 174 Constitution, 184 cover up in, 85 declaration of independence, 174 Dili massacre, 84 history of, 82 Indonesian government, 174 Indonesian invasion, 82-85, 172, 174 Indonesian paramilitary units in, 87 integrated transitional justice strategies, need for, 201 international community, complicity of, 85-87 international peacekeeper, return of, 203 International Tribunal, Petition for, 62-63 mass killings, 83-84, 174-175 political and institutional crisis, 202-

203 political landscape, change in, 189 political parties, 173-174 prosecutorial strategies, 60-63 Reception, Truth and Reconciliation Commission (CAVR). See Timor Leste Reception, Truth and Reconciliation Commission (CAVR) resistance body, 176 resources, 173 Revolutionary Front, 82 self-determination, violation of right to, 86 Serious Crimes Process, 60, 187-189 Serious Crimes Unit, 60 administration, 216 functioning of, 214-216 funding, 216 institutional design, 212-214 investigations, focus of, 213 prosecutors, diﬃculties in carrying out work, 215 survivor-centred mechanisms, 200-201 Truth and Friendship Commission, 190 UN military force in, 175 UNTEAT Human Rights Unit, 176, 212 vote of independence, violence following, 84-85 war criminals, failure to prosecute, 87-88 Eichmann Trial circumstances of, 30 Holocaust victims, voice given to, 30 international community, impact on, 33 Nuremberg experiences, pertinence of, 10 signiﬁcance of, 29 support for and opposition to, 31-32 Europe collective amnesia in, 15 post-World War Two experience, 13 reconciliation and recovery in, 15 Expropriation occupied territory, in, 119-121

Index F Frank, Hans, 4 Freisler, Roland, 4 Frick, Wilhelm, 4 Fritsche, Hans, 9

G Geneva Conventions Iraq, application in, 116 occupying power, regulation of, 115116 revision, 250 strengthening, 248 Germany Allied sectors of, 26 Central Oﬃce for the Investigation of National Socialist Crimes, inauguration of, 29-30 collective amnesia in, 25-29 collective memories, regaining, 29-32 denaziﬁcation, 76 change in opinion on, 27-28 Federal Republic, founding of, 26 Holocaust, historical responsibility for, 14 Israel, restitution and compensation to, 29 murder, statute of limitation for, 32 Nazi. See Nazi Germany Nazi oﬃcials and SS oﬃcers, amnesties, 26-27 Nazi perpetrators, bringing to justice, 30 Nazi regime, perceptions of, 28-29 post-war experience, 13 reconciliation, policy of, 26 stable democracy, as, 13 war criminals, release of, 27 Guantanamo Bay Australian detainee, charges against, 115

H Hague Regulations expropriation of property, regulation of, 119-121 International Military Tribunal,

331

deliberations on status and application of, 116 standing at, 127 Iraq, application in, 116-119 occupying power, regulation of, 115 Holocaust Allies’ knowledge of, 78 historical responsibility for, 14 immediate post-war discussion, 78 lessons of, 77-91 moral guilt for, 29 opportunities to disrupt, 79 victims, estimation of, 28-29 voice, given, 30

I Indonesia anti-communists, toleration of acts of, 89-90 Communism, 80 covert operations in, 80 East Timor, invasion of, 82-86, 172, 174. See also East Timor; Timor Lests mass killings, 80-82 Suharto, role of, 80-81 Sukarno, overthrow of, 80 war criminals, failure to prosecute, 87-88 West Papua, repression in, 88 international crimes command responsibility, 279-280 individual acts, 48 individual responsibility for, 47-48, 67, 276-280, 282 member of organisation involved in, 278 prosecution, jurisdiction, 48 prosecutorial discretion, eﬀorts to limit, 50-52 phases in which exercised, 49 role of, 49-50 prosecutorial strategies, ad hoc tribunals, of, 52-57 East Timor, for, 60-63 ICC, of, 65-66

332

Index

Khmer Rouge trials, for, 66-67 Kosovo, for, 63-65 recently established courts and tribunals, of, 57-65 types of, 48 national tribunals, prosecution in, 221 International Criminal Court accountability, issue of, 299-300 agreements, 230 attack on democracy, as, 302-303 cases in, 233 coalition forces in Iraq, no investigations of allegations against, 233 communications to, 233 complementarity, principle of, 291-292, 313 creation of, 39, 45 establishment of, 91-92 evolution, risks as to, 303 ﬁeld oﬃces, 232 future of, 234-235 incubation period, 131 independence, lack of, 92 initial period of, 232-234 initiation of proceedings, 93 institutional matters, 229-230 investigations by, 231-232 judges, organisation, 229 judicial matters, 231-232 jurisdiction, aggression, inclusion of, 131. See also Aggression crime of aggression, lack of over, 231, 233 crimes of international terrorism, lack of over, 95-96 crimes, uncertainty as to scope and meaning, 295-299 limits of, 92 temporal limitation, 94 justice of procedures, 299-300 management, 235 national sovereignty, protection of, 291-292 operations, limitation, 94 opponents, concerns of, 291 opposition to, 325 permanent court, as, 283

political control issue of, 299-300 prosecutorial strategies, 65-66 referral of cases to, 93 role of, 249 Rome Statute, 72 Australian implementation of. See Australia defences to listed crimes, setting gout, 275 drafting, 284 entry into force, 229 oﬀences, nature of, 304 war crimes and crimes against humanity, deﬁnitions, 265 self-referrals, 233-234 staﬀ, 230 threat to national sovereignty, issue of, 294-295 UN Diplomatic Conference, 131 United States, position of, 92, 289-291, 302, 307 work, beginning, 325 international criminal law alleged violations, ﬁrst prosecutions for, 102 criminal responsibility, conspiracy as basis for, 109-115 deterrent eﬀect, 46 distinct branch of international law, as, 47 enforceable body of law, as, 39 enforceable, existence of, 45 enforcement, 47 individual responsibility, 102-105 justice, costs of, 68 retrospectivity, 107-108 substantive crimes, 105-109 code of oﬀences, 165-166 development, UN interest in, 165 International Criminal Tribunal for Rwanda applicable law, 209 authority, 215 creation of, 205, 249 criticism of, 50-51 eﬀectiveness, study of, 67-68 functioning of, 208-210 indictments in, 56

Index institutional design, 207-208 International Military Tribunal, as descendant of, 206 jurisdiction, 51-52 lessons of, 210-211, 221 location, 209 outreach, 210 prosecutorial strategies, 55-57 results, 45 scepticism as to result of, 15 staﬀ, 209 Statute, 207 war crimes and crimes against humanity, deﬁnitions, 264-265 success of, 208 International Criminal Tribunal for the former Yugoslavia applicable law, 209 authority, 215 budget and staﬀ cuts, 91 creation of, 205, 249 criticism of, 50-51 deterrent eﬀect, 46 eﬀectiveness, study of, 67-68 establishment of, 44, 52 functioning of, 208-210 indictments in, 54-55 institutional design, 207-208 International Military Tribunal, as descendant of, 206 investigations for, 43 jurisdiction, 51-52 leaders, concentrating on, 44 lessons of, 210-211, 221 location, 209 mandate, 53 national courts, cases handed back to, 45 outreach, 210 prosecutorial strategies, 52-55 role of, 249 scepticism as to result of, 15 staﬀ, 209 Statute, 207 war crimes and crimes against humanity, deﬁnitions, 264-265 withdrawal of support for, 15 International Military Tribunal

333

collective amnesia, roots of, 16 crimes against peace, handling of, 138-139 criminal justice model, 25-26 criminal organizations, deﬁnition of, 23 criminal responsibility, conspiracy as basis for, 109-115 educational objectives, 17 Hague Regulations, standing of, 127 individual responsibility, establishment of, 276-280, 282 judges, choosing, 5 French, 10 Soviet, 10, 73 justice, meting out, 69-70 lessons of, 73-77 mark, leaving, 30 monumental spectacle of truth and justice, as, 17, 21 presence of USSR, challenge of, 4-5 purpose of, 69-70 re-education, aim of, 21 subject-matter jurisdiction, 109 success of, 25 Trial. See Nuremberg Trial victor’s justice, whether seen as, 19-21 International tribunals collective amnesia and collective memories. role in, 16 Invasion aggression, as, 161-165 crimes against peace, as, 165 deﬁnition, 163-164 East Timor, of, 82-85, 172, 174 status of, 163 threat of, demands accepted on, 165 war, overlap with, 164 Iraq economic reform, 121-126 expropriation of property, 119-121 legal framework, restructuring, 126, 128 management of commercial life, practical considerations, 125 Saddam Hussein, campaign against regime of, 116 Special Tribunal, Statute, 222-224

334

Index

United States, as creation of, 223 Iraqi High Tribunal death sentence, capacity to issue, 226 functioning of, 224-226 institutional design, 222-224 judges, evidence collection, lack of experience with, 226 public conﬁdence, lack of, 226 threat of dismissal, 225 jurisdiction, 223-224 lessons of, 227 open and fair trials, compromised ability to hold, 225 outreach, 225 political inﬂuence, 224 security, lack of, 225 Statute, 222-223 Israel occupied territories, 123

J Jackson, Justice Robert, 6-7, 9-10, 69-70, 150, 104 Jahrreiss, Dr Hermann, 8 Japan Australia’s historic fears of, 240-241 war criminals, Allied prosecution of, 244-247 World War Two war crimes record, 241-242

K Kirov, Sergei Mironovich assassination, 3 Kosovo Courts, 205, 212 prosecutorial strategies, 63-65 UN Mission (UNMIK) 63-64 war crimes cases 63-65 Kranzbuhler, Otto, 8

L Laval, Pierre, 5 Lawrence, Lord Justice, 6, 8

M Majdeanek Trial signiﬁcance of, 29 Maxwell-Fyfe, Sir David, 6 Military occupation law of, 101

N Nazi Germany German legal profession, diﬃculties of, 5 legalism, 4 People’s Court, 4 Nuremberg Charter crimes against peace, reference to, 110 retrospectivity, issue of, 107-108 substantive crimes, 105-109 Nuremberg Trial acquittals, 9 Allied decision, opposition to, 104 audience, 18 civilizing inﬂuence, 33, 39 defence counsel, contribution of, 7-8 denaziﬁcation, foundation for, 19 development of international law, inﬂuence on, 101 evidence, accumulation of, 5 German public, perceptions of, Americans, trust of, 25 change in, 27-28 fair conduct of, 20 immediately post-war, 17-19 interest of, 21-22 recovery and clariﬁcation, truth as, 21-24 Russians, mistrust of, 25 stages of, 16-17 success, trial being, 25 support of, 22-23 surveys, 17 victims, as, 24 victor’s justice, whether seen as, 19-21 impartial justice, air of, 9 individual criminal responsibility, foundation of, 102-103 international criminal justice, initiation

Index of, 14 investigation and prosecution, conduct of, 18 Judgment, ongoing resonance, 127-129 lessons learnt from, 32-35 location of crimes, conducted in, 18-19 moral message, 24 pace of, 6 post-war European experience of peace and reconciliation, contribution to, 14 proper judicial process, commitment to, 104 retributive justice, as moment of, 14 role and perception on the ground, changing, 16 serious intent underpinning, 5 symbolic justice, aim of, 18 unique situation of, 33-34 uniqueness of, 16, 18 universality, 7 victims, absence of, 18 victors’ justice, 73 allegation of, 101-102

O Occupation aim of, 156 contemporary approaches, 128 debellatio, principles of, 123 economic reform, 121-126 economic spoliation, 124 expropriation of property, 119-121 Hague Regulations 115-119 Iraq, of, 116-119 Israel, by, 123 Italian colonies, of, 123-124 Japan, targets of, 154-156 legal framework, restructuring, 126, 128 Nazi regime, targets of, 152-154 Nazis, by, 124 occupying power, regulation of, 115116 totalitarian regimes, societies subject to, 127 usufructuary, concept of, 121-122 war of aggression with object of, 152-

335

158 World War One, tribunals following, 122

P Philippines war crimes trials, 239

Q Quisling, Vidkun, 5

R Reconciliation German policy of, 26 post-war Europe, in, 15 post-war European experience of, contribution of Nuremburg Trial, 14 retributive justice, importance of, 39 Refugees Convention, Australia. See Australia exclusion clause, 260-262. See also Australia war crimes, etc, deﬁnition, 263-268 defences to war crimes, arguing, 275 humanitarian programs for, 95 law, drafting of, 260 Retributive justice reconciliation, importance of, 39

S Schact, Hjalmar, 9 Sea practice of war at, 8 Self-defence collective, 160 rights to use force, 160 war of aggression, justiﬁcation of, 148, 159-161 wilful killing in, 322-323 Separation of powers reaﬃrmation of doctrine, 11 Shawcross, Sir Hartley, 6, 141-142 Soviet Union gulags, 73 mass repression and killings in, 74 Special Court for Sierra Leone

336

Index

creation of, 205, 216 establishment of, 57 functioning of, 218-220 funding, 218, 220 greater responsibility, trial of persons with, 58-59 indictments, 218 institutional design, 217-218 jurisdiction, 217-218 lifespan, 59 location, 219 mandate, 57 outreach, 220 practice of, 212 prosecutorial strategies, 57-59 staﬀ, 219-220 Statute, 217 war crimes and crimes against humanity, deﬁnitions, 265 Speer, Albert, 9 Streicher, Julius, 9

T Terrorism victims of, 95 Timor Leste. See East Timor/Timor Leste Timor Leste Reception, Truth and Reconciliation Commission (CAVR) achievements of, 203 approaches to, 171-172 collection of materials, repository for, 172 community reconciliation, community level, impact at, 198 deponents, experience of, 192-193 function of, 178-179 impact, 192-199 process, 190-191 product, 191 reparations, 195-197 role of victims, 197-198 victims, experience of, 194-195 establishment, background to, 173-179 functions of, 177-179 historical context, 173 integrated transitional justice strategies, need for, 201

lessons from, 199-202 long term impact of work, 172 momentum for establishment of, 175177 perpetrators, position of, 198 political context, 183 report writing, function of, 179 impact, 187-190 process, 182-185 product, 185-187 recommendations, 187-188 Report, 172-173, 185-187 success, evaluation of, 179-182 survivor-centred mechanisms, 200-201 transition to democracy, as part of, 202 truth seeking, function of, 178 impact, 187-190 importance of, 184 preliminary hearings, 182 pro-autonomy groups, involvement of, 183 process, 182-185 product, 185-187 unanswered questions, 199 work of, 180 Tokyo Charter substantive crimes, 105-109 Tokyo Tribunal crimes against peace, handling of, 138-139 statements of aggression, reliance on, 154 trials, 103 Transitional justice changing attitudes to, 205-206 models of, 205 Tribunals ad hoc, creation of, 249 disadvantages of, 249 collective amnesia and collective memories. role in, 16 future, development of, 228 mixed model, development of, 211-212 focus, 221

Index lessons of, 220-221 practice of, 212 models of, 205 national, international crimes, prosecution of, 221-222 lower level perpetrators of human rights violations, dealing with, 222 Rwanda, in, 222 post-conﬂict accountability, seeking, 227

U Universal Declaration of Human Rights framework established by, 71 USSR Great Terror, 3 Old Bolsheviks, show trials, 3 Western powers, as ally of, 4

V von Papen, Franz, 9 Vyshinskii, Andrei, 3

W War acts falling within ambit of, 143-144 aggression. See Aggression aggression, overlap with, 150-151 aggressive, criminalisation of, 105-107 customary international law, at, 143 declaration of, 143 international treaties, agreements and assurances, in violation of 161 invasion, overlap with, 164 laws of, 242-243 pre-1945 lack of deﬁnition, 142 quantifying or qualifying, 142-145 scale, intensity and duration of force, 144-145 war crimes Allies, by, 73 Allies, criminals hidden from, 74-75 continuing, 71 conventions, 71-72 examples of, 71 failure to deal with, 77

337

international framework for, 70 Nazi, pardoning and release, 76 United States, dealt with in, 75 prosecutions, 75 trials, scepticism as to, 104 Australia, prosecution in. See Australia 243 command responsibility, 279-280 criminals, refuges of, 94-95 defences, 272-276 deﬁnitions, 263-268 duress as defence, 274-275 instruments in force at time of committing, interpretation according to, 265-268 international system for prosecuting, lack of, 249 major and minor criminals, 244 prevention of, 95 prosecution, law as to, 243-244 superior orders, defence of, 251-252, 272-276 trial, resources, 253-255 victors’ justice, 250-253 West Papua carnage in, 89 independence movement, 88-89 Indonesian repression, 88 leader, murder of, 89 World War One occupations, tribunals dealing with, 122 tribunals, provision for following, 103 Y Yugoslavia, former Australians ﬁghting in, 41-42 collapse of, 90-91 crimes of violence, motives for, 43 national legal system, reform of, 44 organised crime in, 54 state-level war crimes courts, 44 violence, level of, 43-44 war crimes trials in, 45

International Humanitarian Law Series Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework, 1999 isbn 90 411 1179 4 2 Helen Durham and Timothy L.H. McCormack (eds.), The Changing Face of Conﬂict and the Eﬃcacy of International Humanitarian Law, 1999 isbn 90 411 1180 8 3 Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, 2001 isbn 90 411 1482 3 4 Elizabeth Chadwick, Traditional Neutrality Revisited:Law, Theory and Case Studies, 2002 isbn 90 411 1787 3 5 Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourmy, Christine Graham, John Hocking and Nicholas Robson (eds.), Man’s Inhumanity to Man:Essays on International Law in Honour of Antonio Cassese, 2003 isbn 90 411 1986 8 6 Gideon Boas and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY, 2003 isbn 90 411 1987 6 7* Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, 2004 isbn 90 04 13848 x 8 Helen Durham and Tracey Gurd (eds.), Listening to the Silences: Women and War, 2005 isbn 90 04 14365 3 9* ** Marten Zwanenburg, Accountability of Peace Support Operations, 2005 isbn 90 04 14350 5 10 Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Law, 2006 isbn 90 04 14587 7 11 Frits Kalshoven, Belligerent Reprisals, 2005 isbn 90 04 14386 6 12 Pablo Antonio Fernández-Sánchez (ed.), The New Challenges of Humanitarian Law in Armed Conﬂicts: In Honour of Professor Juan Antonio Carrillo-Salcedo, 2005 isbn 90 04 14830 2 13 Ustinia Dolgopol and Judith Gardam (eds.), The Challenge of Conﬂict: International Law Responds, 2006 isbn     14* Laura Perna, The Formation of the Treaty Law of Non-International Armed Conﬂicts, 2006 isbn 90 04 14924 4 15 Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conﬂict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, 2007 isbn 978 9004154 28 5 16 Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law, 2007 isbn 978 9004154 66 7 17 Frits Kalshoven, Reﬂections on the Law of War: Collected Essays, 2007 isbn 978 90 04 15825 2 18 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute, 2007 isbn 978 90 04 15466 7 19 José Doria, Hans-Peter Gasser and M. Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko, 2008 isbn 978 90 04 16308 9 20 David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg: Civilising Inﬂuence or Institutionalised Vengeance?, 2008 isbn 978 90 04 15691 3 1

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Winner of the ASIL Francis Lieber Prize. Winner of the 2006 Paul Reuter Prize.