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PLS364 INTERNATIONAL ORGANIZATION AND COOPERATION
READINGS for Lecture 8 International Law
Contents:
1-     Selected Articles of the Rome Statute of the International Criminal Court   #statute
2-    Michael P. Scharf,  Results of the Rome Conference for an International Criminal Court, ASIL Insight, August 1998. #Rome
3-     Michael P. Scharf, The Indictment of Slobodan Milosevic,  ASIL Insight,  June 1999. #Milosevic
4-     Frederic L. Kirgis, The Pinochet Arrest and Possible Extradition to Spain, ASIL Insight,  October 1998. #Pinochet


 INTERNATIONAL CRIMINAL COURT

Rome Statute of the International Criminal Court, 17 July 1998
91 signatures, 5 ratifications
    Articles 5, 6, 7, 8, 27, & 28  2. 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
  (a) The crime of genocide;
  (b) Crimes against humanity;
  (c) War crimes;
  (d) The crime of aggression.
  3. 2. 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 . . .
    For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
  (a) Killing members of the group;
  (b) Causing serious bodily or mental harm to members of the group;
  (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  (d) Imposing measures intended to prevent births within the group;
  (e) Forcibly transferring children of the group to another group.
   • 1. 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:
  (a) Murder;
  (b) Extermination;
  (c) Enslavement;
  (d) Deportation or forcible transfer of population;
  (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  (f) Torture;
  (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  (i) Enforced disappearance of persons;
  (j) The crime of apartheid;
  (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
 • 2. For the purpose of paragraph 1:
  (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
  (b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
  (c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
  (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
  (e) "Torture" means 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; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
  (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
  (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
  (h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
  (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
 • 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
   • 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
 • 2. For the purpose of this Statute, "war crimes" means:
  (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
  (i) Wilful killing;
  (ii) Torture or inhuman treatment, including biological experiments;
  (iii) Wilfully causing great suffering, or serious injury to body or health;
  (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
  (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
  (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
  (vii) Unlawful deportation or transfer or unlawful confinement;
  (viii) Taking of hostages.
 (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
 (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
  (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
  (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
  (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
  (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
  (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
  (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
  (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
  (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
  (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
  (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
  (xii) Declaring that no quarter will be given;
  (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
  (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
  (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
  (xvi) Pillaging a town or place, even when taken by assault;
  (xvii) Employing poison or poisoned weapons;
  (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
  (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
  (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
  (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
  (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
  (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
  (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
  (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
  (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
 (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
  (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
  (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
  (iii) Taking of hostages;
  (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
 (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
  (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
  (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
  (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
  (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
  (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
  (v) Pillaging a town or place, even when taken by assault;
  (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
  (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
  (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
  (ix) Killing or wounding treacherously a combatant adversary;
  (x) Declaring that no quarter will be given;
  (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
  (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
 (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
   1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
  2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
    In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
  (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
  (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
  (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
 (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
 (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
  (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
  (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

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Results of the Rome Conference

for an International Criminal Court

 By Michael P. Scharf
August 1998
 
At the end of the six-week Rome Diplomatic Conference for an International Criminal Court, on July 17, 1998, 120 countries (including virtually all of the United States' allies) voted in favor of the Treaty containing the Statute for an International Criminal Court. The United States joined China, Libya, Iraq, Israel, Qatar, and Yemen as the only seven countries voting in opposition to the Treaty. Twenty-one countries abstained.
On July 23, 1998, the Senate Foreign Relations Committee held hearings to determine why the United States voted against the International Criminal Court and to ascertain future U.S. policy with respect to the Court. The hearings began with statements by Senator Jesse Helms (R-North Carolina), Senator Rod Grams (R-Minnesota), Senator Dianne Feinstein (D-California), Senator John Aschroft (R-Missouri), and Senator Joseph Biden (D-Delaware). These were followed by testimony from David Scheffer, Ambassador-at-Large For War Crimes Issues; John Bolton, Senior Vice President of the American Enterprise Institute; Attorney Lee Casey; and Professor Michael Scharf (the author of this ASIL Insight).
This ASIL Insight describes the key provisions of the Statute for an International Criminal Court that emerged from Rome, analyzes why the United States voted against the Treaty, and summarizes the highlights of the Hearings before the Senate on this issue.

Rationale for a Permanent International Criminal Court

In his book, Death by Government, Professor Rudi Rummel said that 170 million civilians have been victims of war crimes, crimes against humanity, and genocide during the 20th Century. We have lived in a golden age of impunity, where a person stands a much better chance of being tried for taking a single life than for killing ten thousand or a million. Adolf Hitler demonstrated the price we pay for inaction. After the Second World War, the international community established the Nuremberg and Tokyo Tribunals to prosecute the major Nazi and Japanese war criminals and said "Never Again!"—meaning that it would never again sit idly by while crimes against humanity were committed. Fifty years ago, the UN began work on the project to establish a permanent international criminal court.
But because of the cold war, the pledge of "never again" quickly became the reality of "again and again" as the world community failed to take action to bring those responsible to justice for atrocities in such places as Cambodia, Argentina, East Timor, Uganda, Iraq and el Salvador. Radovan Karadzic and Ratko Mladic were encouraged by the world's failure to bring Pol Pot, Idi Amin, and Saddam Hussein to justice for their international crimes.
Then, in the summer of 1992, systematic war crimes returned to Europe just when the UN Security Council was freed of its cold war paralysis. Against great odds, a modern day Nuremberg Tribunal was established in The Hague to prosecute those responsible for atrocities in the former Yugoslavia. A year later, in the small African country of Rwanda, members of the ruling Hutu tribe massacred 800,000 members of the Tutsi tribe. In the aftermath of the bloodshed, Rwanda's Prime Minister-designate (a Tutsi) pressed the Security Council: "Is it because we're Africans that a similar court has not been set up for the Rwanda genocide?" The Council responded by establishing a second international war crimes Tribunal in Arusha, Tanzania.
With the creation of the Yugoslavia and Rwanda Tribunals, there was hope that ad hoc tribunals would be set up for crimes against humanity elsewhere in the world. Genocidal leaders and their followers would have reason to think twice before committing atrocities. But then something known in government circles as "Tribunal Fatigue" set in. The process of reaching agreement on the tribunal's statute, electing judges, selecting a prosecutor and staff, negotiating headquarters agreements and judicial assistance pacts, and appropriating funds turned out to be too time consuming and exhausting for the members of the Security Council. It became apparent that Rwanda would be the last ad hoc tribunal. A permanent international criminal court was hailed as the solution to the problems that afflict the ad hoc approach. On the eve of the Rome Conference, both the U.S. Congress and the Clinton Administration indicated that they were in favor of such a tribunal. As Ambassador Scheffer told the Senate Foreign Relations Committee on July 23: "Our experience with the establishment and operation of the International Criminal Tribunals for the former Yugoslavia and Rwanda had convinced us of the merit of creating a permanent court that could be more quickly available for investigations and prosecutions and more cost-efficient in its operation."

Why the U.S. Voted "No"

Rome represented a tension between the United States, which sought a Security Council-controlled Court, and most of the other countries of the world which felt no country's citizens who are accused of war crimes or genocide should be exempt from the jurisdiction of a permanent international criminal court. The justification for the American position was that, as the world's greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophes around the world. The United States' unique position renders U.S. personnel uniquely vulnerable to the potential jurisdiction of an international criminal court. In sum, the Administration feared that an independent ICC Prosecutor might single out U.S. military personnel and officials.
The rest of the world was in fact somewhat sympathetic to the United States' concerns. What emerged from Rome was a Court with a two-track system of jurisdiction. Track One would constitute situations referred to the Court by the Security Council. This track would create binding obligations on all states to comply with orders for evidence or the surrender of indicted persons under Chapter VII of the UN Charter. This track would be enforced by Security Council imposed embargoes, the freezing of assets of leaders and their supporters, and/or by authorizing the use of force. It is this track that the United States favored, and would be likely to utilize in the event of a future Bosnia or Rwanda. The second track would constitute situations referred to the Court by individual countries or the ICC Prosecutor. This track would have no built in process for enforcement, but rather would rely on the good-faith cooperation of the Parties to the Court's statute. Thus, it was widely understood that the real power was in the first track. But the United States still demanded protection from the second track of the Court's jurisdiction. In order to address U.S. concerns, the following protective mechanisms were incorporated into the Court's Statute at the urging of the United States:
First, the Court's jurisdiction under the second track would be based on a concept known as "complementarity" which was defined as meaning the Court would be a last resort which comes into play only when domestic authorities are unable or unwilling to prosecute. At the insistence of the United States, the delegates at Rome added teeth to the concept of complementarity by providing in Article 18 of the Court's Statute that the Prosecutor has to notify states with a prosecutive interest in a case of his/her intention to commence an investigation. If, within one month of notification, such a state informs the Court that it is investigating the matter, the Prosecutor must defer to the State's investigation, unless it can convince the Pre-Trial Chamber that the investigation is a sham. The decision of the Pre-Trial Chamber is subject to interlocutory appeal to the Appeals Chamber.
Second, Article 8 of the Court's Statute specifies that the Court would have jurisdiction only over "serious" war crimes that represent a "policy or plan." Thus, random acts of personnel involved in a foreign peacekeeping operation would not be subject to the Court's jurisdiction.
Third, Article 15 of the Court's Statute guards against spurious complaints by the ICC prosecutor by requiring the approval of a three-judge pre-trial chamber before the prosecution can launch an investigation. And the decision of the chamber is subject to interlocutory appeal to the Appeals Chamber.
Fourth, Article 16 of the Statute allows the Security Council to affirmatively vote to postpone an investigation or case for up to twelve months, on a renewable basis. While this does not amount to the individual veto the United States had sought, this does give the United States and the other members of the Security Council a collective control over the Court, if no permanent member vetos the resolution calling for postponement.
These protections proved sufficient for other major powers including the United Kingdom, France and Russia, which voted in favor of the Treaty. But without what would amount to an iron-clad veto of jurisdiction over U.S. personnel and officials, the United States felt compelled to vote against the Statute.
As Ambassador Scheffer explained to the Senate Foreign Relations Committee: "the U.S. delegation certainly reduced exposure to unwarranted prosecutions by the international court through our successful efforts to build into the treaty a range of safeguards that will benefit not only us but also our friends and allies." But Scheffer went on to say that "serious risks remain because of the document's provisions on jurisdiction," which he explained as follows:
In a statement submitted for the record in conjunction with the Senate Foreign Relations Committee's hearing, Richard Dicker of Human Rights Watch responded to Scheffer's argument as follows:
Where Will We Go From Here?
During the Hearings before the Senate Foreign Relations Committee, Senator Helms asked Ambassador Scheffer about the accuracy of news reports that Secretary of Defense Cohen had threatened to withdraw U.S. forces from bases in the territory of our allies if they did not support the U.S. proposal for limiting the International Criminal Court's jurisdiction. Scheffer responded that the possibility of such consequences was indeed communicated to several countries in the course of the negotiations. Senator Helms then suggested that the United States announce that it will make good that threat with respect to any country that ratifies the International Criminal Court Treaty. He further urged the Administration to take the following responses to the effort to establish the International Criminal Court: First, the U.S. must never vote in the Security Council to refer a matter to the Court's jurisdiction. Second, the U.S. must block any organization in which it is a member from providing any funding to the International Criminal Court. Third, the U.S. must renegotiate its Status of Forces Agreements and Extradition Treaties to prohibit our treaty partners from surrendering U.S. nationals to the International Criminal Court. Finally, the U.S. must provide no U.S. soldiers to any Regional or International Peacekeeping operation where there is any possibility that they will come under the jurisdiction of the International Criminal Court.
Ambassador Scheffer was non-committal as to the adoption of Senator Helms' proposal, saying only that "the Administration hopes that in the years ahead other governments will recognize the benefits of potential American participation in the Rome treaty and correct the flawed provisions in the treaty." In the meantime, he added, "more ad hoc judicial mechanisms will need to be considered." Mr. Bolton and Mr. Casey argued in favor of Senator Helms' proposed response. Professor Scharf testified that the United States cannot make such threats without being ready to implement them. Further, notwithstanding Senator Helms' hopes, such threats were unlikely to prevent the International Criminal Court from becoming a reality since the Treaty comes into force after 60 countries ratify it, and there are nearly twice that many "like minded states" strongly in favor of the Court.
Professor Scharf further argued that the U.S. could better protect its interests by signing the International Criminal Court statute than by a futile attempt to prevent other countries from ratifying the Treaty:
" Within five years the world will have a permanent international criminal court even without U.S. support. As a non-party, the U.S. will not be bound to cooperate with the Court. But this does not guarantee complete immunity from the Court. It is important to understand that U.S. citizens, soldiers, and officials could still be indicted by the Court and even arrested and surrendered to the Court while they are present in a foreign country which happens to be a party to the Court's Statute. Moreover, by failing to sign the Statute, the U.S. will be prevented from participating in the preparatory committee which will draft the Court's Rules of Procedure and further define the elements of the crimes within the Court's jurisdiction. Also, by failing to sign the Statute, the U.S. will be prevented from nominating a candidate for the Court's bench, participating in the selection of the Court's Prosecutor and judges, or voting on its funding."
Ambassador Scheffer's testimony suggested that the U.S. response to the International Criminal Court might parallel its efforts to reform the 1982 Law of the Sea Convention. The United States refused to sign that treaty until amendments were adopted concerning its seabed-mining regime. In 1994, the signatories to the Law of the Sea Convention adopted an Agreement containing the revisions sought by the United States and the United States signed the treaty, which still awaits Senate advice and consent to ratification. In the interim, Scheffer indicated that the United States may be willing to pursue ad hoc judicial measures such as expanding the jurisdiction of the existing Security Council-created ad hoc war crimes tribunals.

About the author

Michael P. Scharf is Professor of Law and Director of the Center for International Law and Policy at the New England School of Law. From 1989-1993, he served as the Attorney-Adviser in the Office of the Legal Adviser of the U.S. Department of State with responsibility for the issue of a permanent international criminal court. He is the author/co-author of three books about the Yugoslavia and Rwanda Tribunals, including the Pulitzer Prize-nominated Balkan Justice (Carolina Academic Press, 1997).

Suggested Further Reading

Internet Resources

There are several excellent web sites with information about the International Criminal Court, including those maintained by the United Nations (http://www.un.org); the NGO Coalition for an International Criminal Court (http://www.igc.apc.org/icc); the Lawyers Committee for International Justice (http://www.cij.org/cij); and the Institute for War and Peace Reporting (http://www.demon.co.uk/iwpr).

Books
American Bar Association. Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia. U.S.A.: American Bar Association, 1993.
American Bar Association. Report on the Proposed Rules of Procedure and Evidence of the International Tribunal to Adjudicate War Crimes in the Former Yugoslavia. U.S.A.: American Bar Association, 1995.
Bassiouni, M. Cherif and Peter Manikas. The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1996.
Judicial Conference of the United States. Report of the Judicial Conference of the United States on the Feasibility of and the Relationship to the Federal Judiciary of an International Criminal Court, 1991.
Morris, Virginia and Michael P. Scharf. An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1995 (2 vols).
Morris, Virginia and Michael P. Scharf. The International Criminal Tribunal for Rwanda. Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1998 (2 vols).
Scharf, Michael P. Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg. Durham, North Carolina, Carolina Academic Press, 1997.

Articles
American Bar Association Task Force on an International Criminal Court, Establishment of An International Criminal Court, reprinted in 27 Int'l Law. 257, 1993.
Bassiouni, M. Chief and Christopher Blakesley. "The Need for an International Criminal Court in the New International World Order." 25(2) Vanderbilt Journal of Transnational Law, 151-182, 1992.
Blakesley, Christopher L. "Obstacles to the Creation of a Permanent War Crimes Tribunal." 18 Fletcher Forum of World Affairs 77-102, 1994.
Crawford, James. "The ILC's Draft Statute for an International Criminal Tribunal." 88 American Journal of International Law 140-152, 1994.
Ferencz, Benjamin B. "An International Criminal Code and Court: Where They Stand and Where They're Going," 30(2) Columbia Journal of Transnational Law 375-399, 1992.
Paul D. Marquardt, "Law Without Borders: The Constitutionality of an International Criminal Court," 33 Colum. J. Trans. L. 74, 1995.
Judicial Conference of the United States. Report of the Judicial Conference of the United States on the Feasibility of and the Relationship to the Federal Judiciary of an International Criminal Court, 1991.
Scharf, Michael P. "The Politics of Establishing an International Criminal Court." 6 Duke Journal of Comparative and International Law, 1995.
"Symposium: Should there be an International Tribunal for Crimes Against Humanity." 6 Pace International Law Review 87-91, 1994.
Wexler, Leila Sadat. "The Proposed Permanent International Criminal Court: An Appraisal." 29 Cornell Int'l L. J. 665, 1996.

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THE INDICTMENT OF SLOBODAN MILOSEVIC
By Michael P. Scharf
June 1999
 The International Criminal Tribunal for the Former Yugoslavia, which on May 24, 1999 indicted Slobodan Milosevic along with four top aides, was established by the United Nations Security Council in May 1993. Eighty-five suspects have previously been indicted by the Tribunal; charges were dropped against 18 of these, seven persons have been convicted, one has been acquitted, six died before trial, and twenty-three are in custody awaiting trial. The Tribunal's Statute gives the court jurisdiction to prosecute individuals who, in the territory of the former Yugoslavia, commit grave breaches of the Geneva Conventions (Article 2), violations of the laws or customs of war (Article 3), genocide (Article 4), and crimes against humanity (Article 5). The most serious penalty the Tribunal may impose is life imprisonment.
The indictment, which was confirmed by a trial chamber judge on May 24 and transmitted to the Federal Republic of Yugoslavia on May 27, charges Slobodan Milosevic (President of the Federal Republic of Yugoslavia), Milan Milutinovic (President of Serbia), Dragoljub Ojdanic (Chief of Staff of the Yugoslav army), Nikola Sainovic (Deputy Prime Minister), and Vlajko Stojiljkovic (Minister of Internal Affairs) with responsibility for deporting 740,000 Kosovo Albanians and for the murder of 340 others. The indictment is broken down into four counts: Count 1: Deportation (a crime against humanity), Count 2: Murder (a crime against humanity), Count 3: Murder (a violation of the customs of war), and Count 4: Persecution (a crime against humanity).
The charges are based on two theories of liability. The first is command responsibility: the responsibility of a superior for actions committed by his subordinates. As the civilian commander of the Yugoslav military and police forces, Milosevic holds an affirmative legal obligation to prevent his forces from committing, encouraging, or enabling others to commit atrocities in Kosovo. The second is personal responsibility for committing, planning, instigating, ordering or aiding and abetting war crimes and crimes against humanity.
The murder charges may present difficulties for the Prosecutor in two respects. First, as to Count 2, to constitute a crime against humanity, murder must be committed on a widespread and systematic basis, which may be hard to prove given the relatively small number of documented killings in Kosovo. Second, as to Count 3, while murder is expressly listed under the category of grave breaches under Article 2 of the Tribunal's Statute, it is not included in the list of violations of the laws or customs of war enumerated in Article 3 of the Statute.
Notably absent from the indictment is the charge of genocide—the most serious charge within the Tribunal's jurisdiction. Such a charge would have strengthened the case for characterizing Milosevic as a modern-day Adolf Hitler and would have gone a long way toward making the case that the NATO intervention was a just war. But genocide is the most difficult international crime to prove, requiring evidence of specific intent to destroy an ethnic group, in whole or in part, by (a) killing members of the group, (b) causing serious bodily or mental harm to members of the group, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) imposing measures intended to prevent births within the group or (e) forcibly transferring children of the group to another group. Mass deportations of members of an ethnic group fall within the definition of crimes against humanity but not genocide, since the group is relocated rather than destroyed. Moreover, it is doubtful that under the Tribunal's precedent the killing of 340 Kosovo Albanians out of a population of 1.8 million would be considered genocide. However, depending on the evolving circumstances in Kosovo, the International Prosecutor could, with the approval of the Trial Chamber, amend the indictment to include the charge of genocide.
Also conspicuously missing from the indictment are any charges relating to atrocities in Bosnia, where from 1992-1995 Bosnian Serbs with the aid of the Yugoslav National army reportedly killed 250,000 Muslims and "ethnically cleansed" 2 million others from Serb-controlled areas. The absence of charges relating to Bosnia was likely due to the Yugoslavia Tribunal's holdings in the Tadic judgment (May 7, 1997) and in the Celebici judgment (November 16, 1998). In a 2-1 opinion in the Tadic case (Judge Gabrielle Kirk McDonald of the U.S. dissenting), the Trial Chamber determined that the situation in Bosnia did not constitute an international armed conflict as required for conviction of the charge of grave breaches of the Geneva Conventions because the Bosnian Serbs were not the agents of the Government of Serbia, despite evidence that they received financing, material support, and strategic guidance from Belgrade.
In the Celebici case, the Trial Chamber held that command responsibility applies only to individuals in the direct chain of command having the power to issue binding orders and to punish violators of such orders. The test, according to the judges, is whether a superior "has effective control over the perpetrator." Applying this test, the judges convicted the commander of the Celebici prison camp for the atrocities committed against inmates by prison camp guards, but it acquitted the Commander of the First Tactical Group of the Bosnian Army despite evidence that he had wielded wide-ranging authority over the prison. Taken together, the Tadic and Celebici precedents would make it difficult to prosecute Milosevic for atrocities in Bosnia committed by the Bosnian Serbs against Bosnian Muslims.
If, as is expected, the Federal Republic of Yugoslavia fails to surrender Milosevic and the other four indicted Yugoslav officials to the Tribunal, the Prosecutor will likely initiate something known as "a Rule 61 hearing." A Rule 61 hearing is like a televised grand jury proceeding in that only the prosecution is permitted to participate and present its case through witness testimony, documents, and other evidence. If, at the conclusion of the hearing, the panel of three judges are convinced that there are reasonable grounds for believing the defendants have committed the crimes charged in the indictment and that the State where the defendants are located has failed to cooperate with the Tribunal, the judges will reconfirm the indictment, issue an international arrest warrant, and recommend that the Security Council take measures to compel the surrender of the accused.
The experience of the Rule 61 hearing in the case of Bosnian Serb leader Radovan Karadzic in June of 1997 indicates the usefulness of this procedure. By beaming the televised proceedings to Serbia, the Rule 61 hearing may help erode support for the Milosevic regime and may deter Serb military personnel from continuing to commit war crimes in Kosovo. Similar to the emotional impact of the Diary of Anne Frank, it may be difficult even for Serbs hardened by months of propaganda to ignore or dismiss the first-hand testimony of individuals who have been victimized in Kosovo. And, moreover, if Milosevic is killed before he is able to be brought to trial (for example by NATO bombing attacks), the Rule 61 judgment will constitute the only judicial finding of his culpability for the atrocities in Kosovo since the Dokmanovic case (October 22, 1997) established the precedent that the Tribunal will not issue a final judgment if the defendant dies before the conclusion of the proceedings.
As the Tribunal does not have a constabulary, it must rely on the cooperation of states and the assistance of the Security Council to enforce its orders. Given Russia and China's current positions, they would be likely to veto any action by the Security Council to induce the surrender of Milosevic to the Tribunal. But even if Milosevic cannot immediately be brought to trial in The Hague, the effect of the indictment will be to make him a prisoner within the borders of Serbia, since he could be arrested if he stepped foot in any other country. Furthermore, because there is no statute of limitations for war crimes and crimes against humanity, time is on the Tribunal's side. Unless Milosevic can stay in power or obtain the protection of the Yugoslav military for the rest of his life, it is likely that he will one day face international justice.

 
About the Author: 
Michael P. Scharf is Professor of Law and Director of the Center for International Law and Policy at New England School of Law. He formerly served as Attorney-Adviser for U.N. Affairs at the U.S. Department of State, where he played a key role in the establishment of the Yugoslavia Tribunal.

Further Reading:
The Indictment of Milosevic, and the text of the Tadic, Celebici, Karadzic and Dokmanovic decisions are available at the Yugoslavia Tribunal's Internet Website: http://www.un.org/icty.
Virginia Morris and Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (Transnational Publishers, Inc. 1995).
M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (Transnational Publishers, Inc. 1996).
Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (Carolina Academic Press, 1997) (nominated for a Pulitzer Prize).
Virginia Morris and Michael P. Scharf, The International Criminal Tribunal for Rwanda (Transnational Publishers, Inc. 1998) (awarded the ASIL's 1999 Certificate of Merit).
John R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (Transnational Publishers, Inc. 1998).
_________________________________________________________________________________
ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues. 
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Copyright 1999 by The American Society of International Law 
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The Pinochet Arrest and Possible Extradition to Spain
by Frederic L. Kirgis
October 1998
On the basis of an arrest warrant issued by a judge in Spain, British authorities are holding General Augusto Pinochet, the former head of state of Chile, on Spanish charges of crimes against humanity, including genocide and terrorism, that are alleged to have occurred during Pinochet’s rule in Chile. It is anticipated that a request to extradite him to Spain will be forthcoming.

Any Spanish request to extradite Pinochet would have to be considered under any extradition treaty in force between Spain and the U.K., and would be subject to British law at least to the extent that it does not conflict with the U.K.’s international obligations. In addition, British authorities considering a request for extradition presumably would take into account any limitations imposed by general international law on Spain’s authority to prosecute Pinochet.

Pinochet was detained while he was in London for medical treatment. He holds a diplomatic passport, but that does not necessarily mean that he has diplomatic immunity. Such immunity stems from the Vienna Convention on Diplomatic Relations, which provides that "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention." But a "diplomatic agent" under the Vienna Convention is defined as "the head of the mission or a member of the diplomatic staff of the mission." It does not appear that Pinochet currently serves as the head or member of the diplomatic staff of any Chilean mission. Nor does it appear that he was serving in any capacity as a diplomat when he was detained.

During his time as head of the Chilean state, Pinochet would have been entitled to head-of-state immunity, which would have much the same effect outside his own country as diplomatic immunity. It is arguable that former heads of state retain their immunity even after they no longer serve in that capacity. On the other hand, as Professor Michael Reisman of the Yale Law School has said, international law is moving in the direction of non-immunity for particularly grave human rights abuses and serious violations of the law of war for which the head of state is accountable.

Under general international law, any right of Spain to prosecute Pinochet (should he be extradited) would depend in part on whether Spain had jurisdiction to prescribe the rules that would form the basis of the charges against him—rules governing his conduct while he was the head of state in Chile. The basis for jurisdiction to prescribe rules of conduct is strongest when the conduct, or in some instances the effect of the conduct, is in the territory of the prosecuting country. Another strong basis arises when the accused is a national of the prosecuting country. Neither of these bases would justify Spain’s prosecution of Pinochet.
Another arguable basis for Spain’s jurisdiction to prescribe rules of conduct would center on the nationality of any Spanish victims of Pinochet’s actions or executed policies. This basis is quite controversial, however, unless the victims were singled out because of their Spanish nationality.

Spain’s strongest argument appears to be that it has jurisdiction to prescribe rules regarding conduct that is universally condemned, including genocide and some forms of terrorism, no matter where the conduct occurred. The international community has recognized universal jurisdiction in such cases, meaning essentially that whichever government obtains custody over the accused may prosecute him. But it would not be enough simply to allege genocide or terrorism as a basis for universal jurisdiction, without being more specific than that as to what constituted the alleged genocide and what specific terrorist acts were involved.

The Genocide Convention (to which Chile, Spain and the U.K. are parties) does not cover murder or other widely condemned acts, even on a large scale, unless they are committed with a specific intent. The Convention defines genocide only to mean certain acts committed with intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such. If committed with the requisite intent, the acts include killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Although some political crimes are generally treated as non-extraditable, genocide is not considered a political crime for extradition purposes.

Any allegation of terrorism against Pinochet would need to specify the particular acts of terrorism involved, if a convincing case for universal jurisdiction short of genocide is to be maintained. One specific form of terrorism that has been discussed in connection with Pinochet is systematic torture of political opponents. Chile, Spain and the U.K. have all ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It requires each state party to take effective measures to prevent and punish acts of torture in its territory. A state such as the United Kingdom, which finds the alleged offender in its territory, is required to establish its own jurisdiction over the offense unless it extradites the accused to the state where the offenses were committed, the state of the alleged offender’s nationality, or the state of the victim’s nationality if that state considers it appropriate. Thus, if some victims of torture in Chile were Spanish nationals and if Spain requests Pinochet’s extradition in those cases, the U.K. would be required by the Torture Convention to extradite him or to establish its own jurisdiction over him. (To establish its own jurisdiction does not necessarily mean that the state holding the individual must prosecute him, but it does require that the decision on whether or not to prosecute must be made in the same manner as in the case of ordinary offenses of a serious nature under the law of that state.)

There also may be a basis for Spanish prosecution of Pinochet for crimes against humanity, which could include torture, but which could encompass other acts as well. Until recently it was widely thought that crimes against humanity included only acts directed against a civilian population during wartime. It is increasingly arguable that customary international law now may not require a connection between crimes against humanity and any armed conflict. In any event, for such acts as murder, arbitrary imprisonment and torture to be crimes against humanity, they must be directed against a civilian population and must be widespread or systematic. This implies that there must be a policy of committing such acts, but according to the Yugoslav War Crimes Tribunal, the policy need not be formal and may be inferred from the manner of carrying out the acts.

Even if there are persuasive reasons to believe that Pinochet committed crimes against humanity during his time as head of state in Chile, it is not certain that international law would authorize a domestic tribunal in Spain (as distinguished from a properly constituted international criminal tribunal) to prosecute him for those crimes. The question again would be whether such acts fall within universal jurisdiction. There is little precedent, but legal opinion increasingly accepts universal jurisdiction for indiscriminate violent attacks on people at large. Whether that includes focused attacks on political opponents is yet to be decided.

About the author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.

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