| |
|
|
|
Władysław Czapliński - Criminal Responsibility of State Officials under International Law |
Criminal jurisdiction is one of the most important domains of activity reserved to the exclusive competence of the respective states under international law. Generally speaking, there are two bases of criminal jurisdiction under international law. The so-called territorial jurisdiction is strictly connected with the sovereignty over the state territory. Every person residing within the territory is subject to the jurisdiction of the state. One of the forms of territorial jurisdiction is a so-called objective territorial jurisdiction, in accordance with which the state can punish the perpetrator of an act committed abroad if the effects of that crime are produced within the territory of the forum state. On the other hand, personal jurisdiction also exists under international law pursuant to which every state is entitled to exercise criminal jurisdiction over its own nationals, regardless of the place where the criminal act has been committed. In that situation, however, the practice of states tends to limit prosecution to the most serious crimes punishable under the criminal laws of both states concerned (i.e. the state of nationality and the state in which the act is committed). A protective jurisdiction rule allows the state to punish the perpetrators of acts committed by foreign nationals abroad if those acts are directed against the fundamental interests of the forum state. Finally, there is the issue of universal jurisdiction in accordance with which every state has jurisdiction in respect of crimes against international law regardless of the nationality of the perpetrator or the place where the crime has been committed. There has been unanimity among authors that universal jurisdiction can be exercised in connection with piracy and the commerce of slaves; however, with the development of international law, new international crimes were penalized, including, in particular, acts referred to in the Nuremberg principles, Code of Crimes against Humanity and Mankind adopted by the UN International Law Commission in 1991, and finally in the Rome Statute of the International Criminal Court. The purpose of this presentation is to investigate whether current international practice gives rise to any customary law in this area.
1. Streletz, Kessler and Krenz Case before the European Court of Human Rights
The unification of Germany brought with it the issue of punishment of state officials of the former GDR, i.e. for the introduction of security measures to stop the flow of fugitives to the FRG. The measures included the construction of the Berlin Wall and the installation of anti-personnel mines and automatic fire-systems. The number of persons killed in incidents along the border is difficult to ascertain, and varies between 264 and 938. The criminal proceedings can be divided into two categories: against border guard officers directly shooting at the Berlin Wall, and against state and party functionaries who participated in the decision-making process. In a series of criminal procedures a number of persons were sentenced to imprisonment. Three applicants to the Strasbourg court in the proceeding presented here were members of the National Defence Council and Central Committee of the Communist Party (SED) who took part in the taking of decisions dealing with the protection of the borders. These bodies supervised the activities of the Border Guard, formally subordinated to the Ministry of Defence. On the basis of the decisions taken by the bodies mentioned above, the Minister of Defence gave orders to stop refugees from crossing the border at any price, including shooting to kill. Those orders were manifestly incompatible with the standards of human rights protection agreed by the GDR in its international commitments.
It is not surprising that the authorities of unified Germany undertook to punish the persons guilty of these killings. The proceedings concerned both soldiers of the Border Guard who shot the refugees, and former State and Communist Party officials responsible for giving orders to shoot. The accusations were founded simultaneously on the laws of both of the German States. In accordance with the regulations of the Unification Treaty of 1990, the law of the FRG will apply to crimes committed in the former GDR if penalties provided by the former were more favourable to the perpetrators. The shooting of refugees at the FRG-GDR border was qualified as murder under the law of unified Germany. The former GDR officials had been sentenced to imprisonment, their appeals to the Supreme Court and subsequent constitutional claims made to the Federal Constitutional Court were unsuccessful. The sentenced officials decided to refer their cases to the Strasbourg Court.1 They claimed a violation by the German courts of Article 7 of the European Convention on Human Rights. That provision confirms the principle of nullum crimen sine lege.
The Strasbourg judges analysed the respective provisions of the GDR domestic regulations, and then turned to international obligations. They remarked that the actions taken by the GDR authorities were found by some members of the Human Rights Committee in the 1980s to be contrary to Articles 6 and 12 of the Covenant on Civic and Political Rights of 1966. In addition, the UN Economic and Social Council Resolution 1503(1970) included the GDR on the list of States infringing the freedom to travel of its own citizens.
In the proceeding before the Human Rights Court the applicants indicated that their conviction by the FRG court was unforeseable, and none of them was tried earlier on the basis of the GDR law. Moreover, even during their trials before the German courts it was admitted that the acts committed were not contrary to GDR law. The sentencing was therefore contrary to the jurisprudence of East German courts. As to its international obligations, the GDR was never directly condemned by the agencies supervising the observance of the 1966 Covenants. Finally, in accordance with the inter-temporal rules of international law, a distinction should be made between possible international responsibility of the GDR and criminal responsibility of individuals. The latter has developed only in the recent past, and could not be invoked against the applicants.
The judgment of the Human Rights Court specified that the importance of Article 7 of the ECHR goes well beyond the non-retroactivity of criminal law. This Article should be interpreted as meaning that the act concerned must be forbidden by a law in force at the act is committed, and the perpetrator must be fully conscious of the prohibition. This does not exclude the development of penal law through jurisprudence. The issue of conformity with the ECHR of the condemnation of the applicants by the FRG court after unification should be considered in this context. The FRG court acted on the basis of the criminal code of the GDR (an incitement to murder was punishable under that statute), and applied exclusively the FRG law as it sanctioned the perpetrators less severely. The court concluded that the interpretation of German criminal law by the FRG courts was correct. The East German legislation allowed the use of firearms exclusively in cases of a "serious crime". An illegal crossing of the border was treated as serious under certain circumstances only. The order to shoot was interpreted extensively and in fact concerned all attempts at illegal crossing. What is more important, the order was not aimed at preventing flight, but, rather, provided for the "annihilation of refugees" (Vernichtung der Grenzverletzer).
The Court then stated that, although no criminal proceeding had been initiated against the applicants in the GDR, this was due to the discrepancy between law and practice, to a large extent caused by the applicants themselves. The lack of punishment did not change the criminal nature of the acts committed, and it is fair that the democratic State attempt to punish the perpetrators of serious crimes. The GDR legislation violated the obligation to protect human life as the supreme value, protected by the Constitution and international agreements.2 The most important passage of the judgment reads as follows: "The Court considers that a State practice such as the GDR's border-policing policy, which flagrantly infringes human rights and above all the right to life, the supreme value in the international hierarchy of human rights, cannot be covered by the protection of Article 7.1 of the Convention. That practice, which empties of its substance the legislation on which it was supposed to be based, and which was imposed on all organs of the GDR, including the judicial bodies, cannot be described as "law" within the meaning of Article 7 of the Convention".3
It should be noted that the judgment of the Court was unanimous.
Although we agree that the judgment was correct and fully acceptable from the point of view of policy and justice, the international legal analysis should be deepened. There is no doubt that the competence of domestic courts excludes the jurisdiction of international courts including the ICC, the competence of the latter being complementary. Let us remind the reader, however, that this is correct exclusively with respect to those courts possessing territorial and personal jurisdiction over the perpetrator at the moment of the crime is committed. In the present case, the issue of jurisdiction of the court of another State (FRG) was at stake. Our doubts increase as we note a certain hypocrisy of the government of the FRG. When the former First Secretary of the Communist Party (SED), Mr. Honecker, prepared his visit to the FRG, the Federal Tribunal (Bundesgerichtshof, the supreme criminal court in West Germany) handed down a judgment (on 14 December 1984)4 granting Honecker full immunity as the head of State, so that he could not be condemned for alleged crimes committed in the GDR.5 That made possible the visit of Honecker to Bonn, where he was received with all possible honours. After the German unification, a criminal proceeding was initiated against him but was subsequently abandoned for humanitarian reasons. Mr. Honecker was allowed to leave for Chile where he died of cancer.
In fact, it is difficult to see this entire situation other than as evidence of a "justice of victors". The theory that ordinary border guards could oppose the orders of superiors and refuse to shoot fugitives completely ignores the reality of the GDR regime. Perhaps it is acceptable under a democratic system with an efficient independent judiciary, but certainly not under the autocratic "Prussian communism". If we add that Western States, on the one hand, condemned the restrictive emigration policy of the communist States, and, on the other hand, restricted their own immigration policy, we obtain a more complete picture of an instrumental treatment of law by all the States concerned.
2. The Pinochet Cases and the House of Lords6
These cases deserve special attention, as they are the main reason the international community is interested in punishing State officials as perpetrators of crimes against international law - in particular mass and grave violations of human rights. After a coup d'Etat in 1973, Pinochet proclaimed himself head of State of Chile in 1974. Under his government, mass prosecutions, killing and torturing of political opponents including foreigners (e.g. Spanish nationals) were reported. In 1998, Pinochet arrived in the United Kingdom for medical treatment, after having stepped down as head of State. He was arrested in London on the basis of a warrant issued by the Spanish judge Garzon. He appealed from the decision on arrest to the High Court, and subsequently to the House of Lords. The latter, acting because of procedural reasons in different composition, passed three judgments. In the first decision of 25 November 1998 the House of Lords, by 3:2 vote, refused to grant Pinochet an immunity as head of State, as it could not cover criminal acts outside official activities (ultra vires). Pinochet appealed, invoking a possible partiality of one of the Lords of law, connected with Amnesty International. The House unanimously granted the claim and repealed the judgment on 17 December 1998. A new decision of 24 March 1999 passed by seven Judges, six of them voting for admissibility of extradition, contained a deep and thorough analysis of facts and law. The analysis concentrated upon two issues: jurisdiction of British and Spanish courts to proceed, and the diplomatic immunity exception referred to by General Pinochet in his defence.7
The approach of the House of Lords to the jurisdiction issue was positivist. It decided, first of all, that it was unable to consider the legality of extradition in the context of murders committed in Chile, as according to British law jurisdiction in such cases would be limited to charges of murder of a British national, in accordance with a passive personality rule. Although we might wonder what the decision of the court would have been if it had qualified the mass killings by the Pinochet regime as crimes against humanity, as discussed below, we doubt that a new qualification would have influenced the decision.
Under those circumstances, extradition could have been based exclusively upon claims of torture. It is generally admitted that extradition is admissible if a so-called double criminality rule is observed, and the act is punishable in both the requesting and the requested State. Such a requirement has been formulated i.e. in Article 2(1) of the European Convention on Extradition of 19578 regulating extradition between Spain and the UK.9 The Convention provides for an obligation to extradite the nationals of third States as well, and it forbids the extradition of political offenders (terrorists being excluded).10 The same principles were adopted in two conventions on extradition11 intended to regulate extradition between the EU Member States: that of 10 March 1995 on simplified procedures, and that of 27 September 1996 on rules of extradition. Neither convention became effective, as they were replaced by the framework decision on European arrest warrants of 13 June 2002,12 based on the same premises. These documents show that the rules mentioned above are well rooted in European law.
The first judgment of the House of Lords stated that the double criminality requirement would have been fulfilled if torture were a crime under British law at the time of extradition. The seven Lords of Law decided, however, that extradition would be admissible exclusively in respect of tortures committed in Chile after the entry into force in the UK of the 1984 UN Convention on Torture on 29 September 1988. Only two of the seventeen lords (Millett and Hutton) referred to the ban on torture as a peremptory norm of international law.13 Although several other lords (Phillips, Browne-Wilkinson and Slynn) considered certain issues of international law in that context, none were eager to accept a form of universal jurisdiction or competence of British courts to deal with the case.14 They found no international practice confirming such an approach.
The approach of the judges to the international ban on torture was very traditional and conservative. They rejected the competence of the British courts on the basis of a restrictive interpretation of the Extradition Act of 1989 and the Criminal Statute of 1988. This is understandable in light of the dualist system of relations between international law and municipal law traditionally adopted in the UK. An important issue from the point of view of international law is a possible classification of torture as crime against humanity. Such a stance is justified in particular in light of Article 5 of the Statute of the Yugoslavia Tribunal (Resolution 827 of 25 May 1993), and of Article 7 of the Statute of the International Criminal Court (1998). The former provides for competence of the Tribunal to decide cases of crimes against humanity including torture. The latter reads:
For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Those crimes include torture, defined as the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused. Exception was made for pain or suffering arising only from, inherent in or incidental to, lawful sanctions.15 From the substantive point of view, torture was introduced into international law as a crime by the UNGA Resolution 3452 (XXX) of 9 December 1975, and subsequently confirmed in the legislative act: UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.16 At the time the Pinochet judgments were handed down, the Convention had been ratified by 116 countries, i.e. it was of general importance. Finally, reference should be made to the rich jurisprudence of the Yugoslavia and Rwanda tribunals which had no doubts that torture constitutes a crime against humanity.17 If we take into account two other precedents (the Eichmann case before the Israeli Supreme Court in 1962 and the Demjaniuk case before the US Court of Appeals for the 6th Circuit in 198518 [this cannot be an appropriate reference - District courts are trial courts, court of appeal are at the Circuit level in the US, and a complete citation should be provided in any event]) together with an analysis of the domestic legislation of different States, we could suggest that the international community might accept the status of torture as a crime against humanity, as well as the universal jurisdiction that flows from such a classification.19 There is also a general consensus that crimes against international law cannot remain unpunished. We must emphasize, however, that governments are much more conservative and hostile to universal jurisdiction, especially where it is difficult to prove the existence of a connection between the specific crime and the State of the forum. It seems that there is still no rule of general customary law governing the situations presented above. In accordance with the well established practice of international courts, both practice and opinio iuris must be shown to prove the existence of customary law. In the present case, opinio iuris precedes practice.
After having established that the procedural requirement of double criminality was fulfilled, the House of Lords considered the issue of whether the former president-dictator of Chile should be protected by immunity as head of State (immunity ratione personae). The personal immunity of the head of State is of nearly absolute nature under international law;20 the only exception is a waiver of immunity by the State of nationality.21 In respect of State officials, the decision on the waiver is taken by their superiors. In the case of the head of State, the decision can be taken as a practical matter only after the cessation of official functions.
The Lords based their analysis on two municipal acts: the State Immunity Act of 1978 and the Diplomatic Privileges Act of 1964; the latter transforming Art. 39(2) of the Vienna Convention on Diplomatic Relations of 1961 into British law, applied by analogy to the Heads of State.22 The opinions of the judges can be divided into three groups. According to the first one, torture cannot be treated as an official function of the head of State (Browne-Wilkinson, Hutton, Steyn). If torture is a crime against international law, immunity cannot be invoked. The judges quoted a number of international instruments establishing the criminal responsibility of State officials notwithstanding their position in the hierarchy of the State, starting with Art. 7 of the Nuremberg Charter, then referring to Art. 7(2) of the Statute of the Yugoslavia Tribunal, Art. 6(2) of the Statute of the Rwanda Tribunal, and finally Art. 27(1) of the ICC. The opinions differed as to the timing of the waiver (the conclusion of the 1984 Convention, its entry into force in respect of the UK, or possibly the date of entry into force in respect of Chile). The second position (Salville, Millett, Hope) was based on the argument that the immunity covers all activities and acts of the head of State, including former [heads of State]; in the present case it would be contrary to the 1984 Convention, and it was waived by that Convention. Finally, the third approach (Phillips, to a certain extent also Hutton) emphasized that the granting of immunity would be contrary to the concept of international crimes. On the one hand, those Lords remarked that the perpetrators of all international crimes should be punished (including the officials giving orders to commit such crimes). On the other hand, they correctly remarked that the concept of personal immunity implies the establishment of universal jurisdiction, otherwise it is senseless. They also expressed doubts as to the existence of a customary rule extending immunity to the former head of State. Certainly this construction is the most coherent, summing up the present state of international law, but also directed towards the future.
We must also present the opinion of Lord Goff of Chieveley that the immunity of the head of State is absolute and allows for no exceptions. Torture can be punished exclusively by the State of nationality.
Notwithstanding differentiated premises, the House of Lords in the two substantive judgments concluded that Pinochet should not be granted personal immunity. This conclusion is extremely important and conforms to the current development of international law. The Lords agreed that official function cannot be a bar to criminal responsibility, and that responsibility should be implemented after cessation of the State function. It is disputable however whether the waiver of immunity gives rise to the jurisdiction of international tribunals or domestic courts. In the latter case, jurisdiction could be granted to the courts of the State of nationality, or to those of another State, on the basis of passive or universal jurisdiction, if we posit that the latter concept is accepted in cases of crimes against international law other than piracy and slavery.
3. The Ghaddafi case before French courts, and other proceedings against high State officials23
The proceeding before the French courts against the dictator of Libya, M. Ghaddafi, was initiated in connection with charges of murder combined with terrorist acts - the issue at stake was an attack by agents of the Libyan secret service against a French plane of the company UTA over Niger on 19 September 1989. Over 170 persons were killed, including some French nationals. Several Libyan nationals were tried in absentia and condemned to life imprisonment. Libya did not extradite the perpetrators, but agreed to pay indemnities decided by the court. Some months later, in October 1999, the French judge initiated a proceeding against Ghaddafi, accusing him of having organised this terrorist act but the Court refused to convict him. The Prosecutor appealed that decision, invoking the issue of State immunity. The court of appeals confirmed the decision, referring to the principle of passive personal jurisdiction arguing that, although Ghaddafi had resigned from his official functions as head of State, in practice he still acted as such, in particular in international relations. [On a subsequent appeal,] the Paris court decided that immunity could not be granted in respect of international crimes. It is interesting that the court did not base its decision on the 1970 Montreal Convention on terrorist acts against civil aircrafts (which was the basis of the dispute before the ICJ in the Lockerbie24 case), but discussed judgments of the American court in US v. Noriega25 , and of the House of Lords in Pinochet. The prosecutor appealed to the Cour de cassation (the supreme court in criminal matters) which annulled the decision of the Court of Appeals in the judgment, based on the immunity of the Head of State, of 13 March 2001.26 It is regrettable that the court did not analyse international law in detail (as did the House of Lords), but limited itself to emphasizing the absolute scope of personal immunity. It made no distinction between official acts and acts ultra vires). The opinion also neglected the generally recognized norm of international law that the perpetrators of criminal acts against international law should be punished notwithstanding their official functions. To the contrary, the judges indicated that there is no international practice in that respect. The stance of the judges in this case shows how difficult the establishing of customary law will be.
Ghaddafi was not the only head of State against whom prosecutors and judges, following the example of the Spanish judge Garzon, have initiated criminal proceedings. The same fate met the dictator of Chad Mr. H. Habre in Senegal, D. Nuterse of Surinam (the proceeding was initiated in the Netherlands, but Dutch authorities preferred to initiate another proceeding in Surinam), R. Mugabe of Zimbabwe (the proceeding was started during his stay at the UN in February 2001, but the US court granted immunity). If we add earlier accusations of President F. Marcos of the Philippines, the Shah of Iran M. Reza Pahlawi, President Noriega of Panama (the US sent its army to Panama in order to capture the acting president of that country and to bring him before the US court, charged with illegal drug trafficking), and even Pope John Paul 2nd,27 we will have a complete review of the current trends in international law.
4. The Congo v. Belgium Case before the International Court of Justice
Theoretical discussion of the punishment of criminal acts violating international law was given a new impetus with the passing by the ICJ of a judgment in the case concerning a warrant against the former foreign minister of Congo, Mr. Abdulaye Yerodia Ndombasi. Mr. Ndombasi took part in a demonstration in the Congo during which he incited the local population to rise up against their compatriots, members of another tribe. The demonstration degenerated into riots, in which a number of innocent persons were killed.
On 16 June 1993, Belgium passed a law on the punishment of grave breaches of the Geneva Conventions of 1949, amended on 19 February 1999 by the law concerning serious violations of international humanitarian law. Both acts were based upon the concept of universal jurisdiction, giving the Belgian courts jurisdiction over violations of international humanitarian law, regardless of the place where the acts were committed. On the basis of those acts, the Belgian judge Vandermeersch issued an international warrant of arrest and let it circulate via Interpol. According to the warrant, Mr. Ndombasi, at that time foreign minister of his country, should have been arrested when entering any third State party to Interpol, and delivered to Belgium for trial. The Congo claimed that the warrant was illegal, and brought the case to the Hague Court.
In the judgment of 14 February 2002 (not yet published in the Reports of the Court),28 the Hague judges discussed a specific aspect of the position of the Foreign Minister in international law. They limited themselves to the issue of State or diplomatic immunity, simply leaving aside the question of possible universal jurisdiction. They recognized the full range of the immunity with respect to criminal jurisdiction, as that is required to fulfil official duties. Again no distinction was made between official acts and acts exceeding official duties/private acts. The Court remarked however that immunity cannot result in impunity. Under its opinion, the minister should be held responsible before the Court of his national State, after his official function has ceased, or before the international court having jurisdiction. The warrant of arrest was - in that case - issued by the State with no connection to the act committed by Yerodia. It infringed the immunity of the minister, and therefore violated the obligations of Belgium towards the Congo. Belgium was ordered to withdraw the warrant and inform all the parties concerned .
The judgment was accompanied by several separate opinions. The French judge G. Guillaume stressed that universal jurisdiction can be recognized exclusively if there is a link between the criminal act and the State claiming jurisdiction. The Japanese judge Oda presented the view that there is a growing tendency to grant universal jurisdiction over all the perpetrators of crimes against international law; under contemporary international law there is also no reason to extend the full scope of diplomatic immunity to the minister of foreign affairs. Finally, in their joint opinion, well-balanced and carefully formulated and argued, judges Higgins, Burgenthal and Koojmans suggested that the Court should have considered the issue of universal jurisdiction even though the Congo did not refer to it in its request. The jurisdiction of the Belgian court would be justified, considering the growing number of international agreements accepting universal jurisdiction. Moreover, there is a general consensus that crimes against humanity must be punished. The immunity of foreign ministers, as adopted by the majority, was too broad, especially after the cessation of the official function. The Belgian warrant of arrest therefore did not violate international law.
5. Conclusion.
The evaluation of the current state of criminal jurisdiction in respect of high state officials is difficult. It brings to mind the various perceptions of a glass of water. For some people it is half-full; for others, half-empty. On the one hand, even if there is a general agreement among States that at least the most serious violations of international law should be prosecuted, the claims of universal jurisdiction seem to be premature. On the other hand, the number of claims against politicians will continue to grow. This development can lead to the general confirmation of some peremptory norms of international law, including the duty to punish international criminals notwithstanding their position in the State. Criminal responsibility must be distinguished from the responsibility of States, although they are not mutually exclusive. If we expect the international community to treat human rights seriously, in particular the core rights, we must create the measures necessary to enforce criminal responsibility. This can be achieved either through the recognition of universal jurisdiction in respect of all international crimes, or through the consequent building up of the position of the ICC by submitting to it the perpetrators of these crimes.
1Applications 34044/96, 35532/97 and 44801/98, judgment of 14 February 2001.
2The Court referred in that context to Art. 6 (right to life) and Art. 12(2) (right to leave freely the territory of one's own State) CCPR; it also emphasized that in respect of applicants no premise formulated in Art. 2(2) CCPR could be found allowing limitations of the right to life.
3Cf. para 87 of the judgment.
4BGH Case No. Az2 ARS 252/84; ILR 80 (1984), at 365.
5The FRG applied its criminal law to the acts committed in the GDR by East German nationals. It would therefore be possible to try Honecker on the basis of the respective provisions of West German criminal law.
6The Pinochet judgments were widely commented, e.g. by DE CARA J.Y., "L'affaire Pinochet devant la Chambre des Lords", AFDI 1999, p. 72; Discussion in the ICLQ 48 (1999) by FOX H. (p. 687), CRAIG J. (p. 937), DENZA E. (p. 949), and WARBRICK C. (p. 958); RODLEY N.S., "Breaking the Cycle of Impunity for Gross Violations of Human Rights: The Pinochet Case in Perspective", Nordic JIL 69 (2000), p. 11; DOMINICÉ Ch., "Quelques observations sur l'immunité de juridiction pénale de l'ancien Chef d'Etat", RGDIP 103 (1999), p. 297; BANK R., "Der Fall Pinochet: Aufbruch zu neuen Ufern bei der Verfolgung von Menschenrechtsverletzungen", ZaöRV 59 (1999), p. 677.
7We do not intend here to discuss all the subsequent decisions by the House of Lords but to concentrate upon the arguments presented by its members on those two points., important from the perspective of international law. Such an approach is possible, as each Lord of Law presents his own proposal of judgement in the particular case.
8ETS nr 24.
9It is interesting that although the Convention was in fact treated as a part of the EU acquis, both States became parties to it relatively late - Spain was bound as from 5 August 1982, and the UK from 14 May 1991.
10In the Pinochet case none of the parties invoked a possible exception of a political nature of incriminated acts.
11PŁACHTA M., "Recent Developments in the Extradition Law Within the European Union, and the New Polish Domestic Legislation", Yearbook of Polish European Studies, vol. 2/1998, p. 93.
122002/584/JHA, OJ L 190/1 of 18 July 2002.
13The same stance was taken by the Yugoslavia Tribunal in the Furundzija judgment of 10 December 1998.
14Lord Phillips considered such an option in respect of a possible jurisdiction of an international criminal court only.
15On Art. 7, see in particular ROBINSON D., "Defining 'Crimes against Humanity' at the Rome Conference", AJIL 93 (1999), p. 43. As to the practice of Yugoslavia and Rwanda Tribunals, cf. METTRAUX G., "Crimes Against Humanity in the Jurisprudence of the International Criminal, Tribunals for the Former Yugoslavia and Rwanda", Harvard ILJ 43 (2002), p. 245ff.
16In force from 26 June 1987, ILM 23 (1985), p. 1027.
17An excellent review of the practice of international criminal courts concerning crimes against humanity including torture can be found in METTRAUX G., "Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda", op. cit. pp. 237-316.
18ILR 36, 5-276, and 79, 534-547, respectively.
19Art. 7 of the Convention on Torture of 1984 recommends extradition; it provides for the trial of a perpetrator if there is no request by another State-party. It is difficult to evaluate whether this is the application of a principle of aut dedere, aut punire, or universal jurisdiction.
20See a review of international practice in Weller M., "On the hazards of foreign travel for dictators and other international criminals", Int.Aff 75 (1999), pp. 610-611; GORNIG G., "Immunität von Staatsoberhäuptern", in: IPSEN J./ SCHMIDT-JORTZIG E., Recht-Staat-Gemeinwohl. Festschrift für D. Rauschning, Köln etc. 2001, in particular at 468 et seq.
21This was the situation in respect of President Marcos of the Philippines. The new government waived the immunity of the former president, thus enabling judicial proceedings in the USA and Switzerland. The Chilean government however supported Pinochet and invoked a rule that the Head of State should be tried by the courts of its own State.
22UK is a dualist country, that makes it difficult to invoke international law before domestic courts. This is also the reason for a certain reluctance of the Lords to invoke international legal arguments in their decisions in Pinochet.
23Wyrok z 13 marca 2001, Orzecznictwo Cour de Cassation, nr 1414, s.1. W doktrynie por. ZAPPALA S., "Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation", EJIL 12 (2001), p. 595; RUFFERT M., "Pinochet Follow Up: the End of Sovereign Immunity?", NILR 48(2001), s. 171.
24ICJ Rep. 1992, p.3ff and 114ff.
25746 F.Supp.1506, p.1519.
26Cf. http/www.sos-attentats.org and http/www.courdecassation.fr/agenda.
27He was accused of violation of religious feelings by his speech delivered at the Holy Service during his official visit in the US in 1979. The charge was brought against the Head of the State of Vatican. The Court granted full immunity and rejected the claim.
28First comments to the case have been published; see EJIL 13 (2002), No. 4, p. 853ff (CASSESE A., WIRTH S., SPINEDI M.); WEISS W., "Völkerstrafrecht zwichen Weltprinzip und Immunität", JZ 2002, No. 14, p. 698.
|
|
|
