1. Introduction
Given their proliferation over the past 20 years and the great academic interest in the field of international criminal law, it would be reasonable to presume an ‘international criminal court’ to be a well-defined concept. However, no generally recognized distinction between an ‘international criminal court’, an ‘internationalized criminal court’, and a ‘domestic criminal court’ appears to exist.Footnote 1 In fact, it is common for textbooks and handbooks on international criminal law to completely avoid a discussion of the criteria for categorizing a judicial body as ‘an international criminal court’.Footnote 2 Without particular explanation this label is generally attached to the International Criminal Tribunal for the former Yugoslavia (ICTY), the Inter-national Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), whereas judicial bodies such as the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the International Judges and Prosecutors Programme in Kosovo, the War Crimes Chamber for Bosnia-Herzegovina, and the Iraqi High Tribunal are placed in the category of ‘internationalized or hybrid courts’.Footnote 3
Rather than accounting for the distinct elements that characterize a tribunal as either ‘international’, ‘internationalized’, or ‘domestic’, textbook authors tend to focus their attention on the pros and cons of prosecuting offenders before the various kinds of tribunalsFootnote 4 and/or on the specific traits of each of the existing ‘internationalized criminal courts’.Footnote 5 The distinction between ‘international’ and ‘domestic’ courts is implied at best.Footnote 6
This article will show that the current terminological confusion is not just a formal matter. In particular, material legal questions arising before a number of so-called internationalized or hybrid courts can only be answered by drawing a clear-cut distinction between courts that operate under international law and courts that operate under domestic law.
What follows in sections 2 and 3 is a brief discussion of the scholarly debate of the definition of an ‘international criminal court’ exemplified by Robert Woetzel's The Nuremberg Trials in International Law from 1962Footnote 7 and the recent Hybrid and Internationalised Criminal Tribunals published by Sarah Williams in 2012.Footnote 8 Although 50 years apart, these two works are among the few to try to come up with a definition of international and internationalized tribunals respectively – and they both emphasize ‘the involvement of the international community’ as a crucial element.
Section 4 examines the nature of the International Military Tribunal (IMT) and the Nuremberg Military Tribunals (NMTs) based on the statements of the tribunals themselves as well as the academic debate they gave rise to. The IMT and the NMTs are interesting for present purposes not only because they were the first tribunals of their kind, but also because the assessment of the nature of subsequent tribunals takes their practice as a point of departure.
Sections 5 and 6 will illustrate through examples from the practice of the SCSL and the ECCC that ‘the involvement of the international community’ is a questionable criterion when it comes to determining whether a criminal court is international or national in kind. The SCSL and the ECCC have been chosen for examination over other hybrid or internationalized tribunals, because these two particular courts have recently been confronted with legal questions regarding the immunity of state officials and the relevance of domestic law in the proceedings of criminal courts that can only be answered by identifying the legal system under which they operate.
Section 7 concludes the article by arguing that a definitional distinction between international and national criminal courts should revolve around the nature of each court's founding document and thus correspond to the overall distinction between the international legal system and the national legal system(s).
2. Robert Woetzel's 1962 definition of an ‘international criminal tribunal’
In The Nuremberg Trials in International Law of 1962, Woetzel set out to examine whether the IMT could truly be categorized as ‘an international criminal court’. He went through four main theories pertaining to the definition of an international court, which may be summed up as follows:Footnote 9
1. ‘a court is international if it applies international law’;
2. ‘an international court is a tribunal based on powers of occupation under international law’;
3. ‘a tribunal is international if it derives its authority from a treaty or decision of an international council’;
4. ‘a court instituted by one or a group of nations is international if it has the approval of the international community’.
Woetzel rejected the first argument for the straightforward reason that national courts also apply international law, whereas he considered the second argument to be unconvincing ‘since occupation tribunals are widely considered to be limited in their power by the rules of belligerent occupation …’.Footnote 10 Against the background of international criminal law developments during the past decades, few twenty-first century legal scholars would be likely to endorse either of the first two arguments.Footnote 11 What is more interesting from a contemporary viewpoint is why Woetzel discarded the third argument in favour of the fourth.
Pertaining to the third argument, Woetzel stated that ‘[i]t would be indisputably international only in so far as the contracting members are affected by it, within their respective spheres of jurisdiction’.Footnote 12 He apparently found the label ‘international’ to imply that the relevant tribunal has jurisdiction over nationals, including state representatives, of third states. Woetzel did not provide any further support for his conclusion ‘… that a treaty between several states by itself would not be an uncontested basis for an international court’.Footnote 13 He only pointed to the rather circular argument that the IMT would not have had jurisdiction over German nationals without the approval of the international community.Footnote 14 One might speculate that Woetzel preferred to conclude that the IMT was an international tribunal, but had doubts as to the jurisdiction of the Allied Powers over German nationals.Footnote 15 Emphasizing ‘the approval of the international community’ in his definition of an international criminal tribunal allowed him to circumvent the latter issue.
In Woetzel's definition, ‘the approval of the international community’ should ideally take the form of an act of ‘a world organization like the United Nations’. However, if such an organization is inexistent or somehow unable to act, he found it ‘… reasonable to conclude that a nation or combination of states that represent the “quasi-totality of civilised nations” could institute war crimes proceedings similar to those at Nuremberg on its own initiative’.Footnote 16
While Woetzel did not explicitly explain his rejection of the third theory emphasizing the source of the court's authority, his subsequent analysis of the position of the individual in international law reveals why he – in spite of its inherent ambiguity – favoured the fourth theory revolving around ‘the approval of the international community’.
According to Woetzel, the direct application of international law to individuals is in conflict with the idea that international law and national law are separate legal systems.Footnote 17 Thus, in opposition to ‘… dualist writers who deny that international law applies directly to individuals as well as to states …’,Footnote 18 Woetzel claimed as follows:
‘Since … international courts can apply international law, this would leave no doubt that before international tribunals at least, international law may be applied directly to individuals, regardless of the provisions of national law.’Footnote 19
He thereby conflated the two fundamental questions of (i) the possible entities that international law may govern and (ii) the effect of an international norm in domestic law. In the common view, ‘dualism’ implies that international law and national law are separate legal systems, and that the rules of any national legal system decide the impact of international law in national law and vice versa.Footnote 20 But ‘dualism’ says nothing about the potential content of the material international norm. Whereas the concept of international legal personality is a contentious topic in international law, the direct applicability of international norms in domestic legal systems – regardless of whether they are addressed to individuals – is a matter of domestic law. Woetzel concluded that ‘… the IMT, an international court, was completely justified in applying international law to the individual defendants’.Footnote 21 However, from the point of view of international law, the same could be said about any domestic court. It is a different question altogether whether – under domestic law – a domestic court may impose international legal obligations directly on individuals. In any event, this issue, which may find different answers in different domestic legal systems, cannot be decisive for the definition of an ‘international criminal court’ under international law.
Had Woetzel been less sceptical about the direct applicability of international law to individuals, he might have looked more favourably upon the third theory which as explained further below is endorsed in the present article in a slightly modified version.
As will become apparent in section 4, it is far from certain whether Woetzel's fourth theory on the definition of an ‘international criminal court’ was in fact in line with the judgments of the post-Second World War tribunals.Footnote 22 But, before embarking on the study of relevant case law, the following section 3 will briefly discuss Williams’ recent work on Hybrid and Internationalised Tribunals, which, like Woetzel, relies heavily on ‘the involvement of the international community’ as a criterion for assessing the legal nature of criminal courts.
3. Sarah Williams’ 2012 definition of an ‘internationalized criminal court’
Based on a survey of existing courts and tribunals commonly referred to as ‘internationalized’ or ‘hybrid’, Williams concludes that there is no comprehensive definition of this kind of judicial body.Footnote 23 She does, however, identify six ‘defining features’ of ‘internationalized’ or ‘hybrid’ criminal courts, including, for example, the involvement of a party other than the affected state and a mix of international and national elements in their material jurisdiction. Among institutions satisfying those six criteria, Williams notes that there is still a wide range of diversity. She finds:
Having now conducted this study, it is possible to categorise the various international and national mechanisms for international criminal justice on a sliding scale by looking at the extent and degree of international involvement.Footnote 24
Essentially, Williams’ sliding scale measures the involvement of the UN. Thus, the ‘true’ international criminal tribunals are set up by the Security Council acting under Chapter VII of the UN Charter, e.g. the ICTY and the ICTR. Although not a UN subsidiary, the ICC also fulfils the criteria for being categorized as ‘truly international’ in light of the growing number of member states to the Rome Statute and the possibility of Security Council referrals. Contrary to common terminology, Williams draws a distinction between ‘hybrid’ and ‘internationalized’ criminal courts. In the category of ‘hybrid courts’ she places the tribunals such as SCSL and the STL because they operate directly on the basis of international law (e.g. an agreement between the UN and the affected state), and because of the ‘considerable international involvement in [their] design, establishment and operation’. The category of ‘internationalized’ tribunals, on the other hand, comprises ‘essentially domestic institutions but with significant participation from other states or from international organisations including the United Nations’. The ECCC is an example of an internationalized tribunal.Footnote 25 In a fourth category, Williams places tribunals receiving (usually ad hoc) assistance from other states or international organizations, whereas the fifth and final category includes courts set up under domestic law without international assistance.Footnote 26
Williams should perhaps be commended for trying to put flesh on the bone of inherently elusive ‘involvement of the international community’ criterion.Footnote 27 Nonetheless, it seems reasonable to ask whether it would have be wiser to abandon this criterion altogether. As Williams herself notes, the sliding scale does not help to resolve the legal issues faced by criminal tribunals: ‘While such a classification can be a useful first step, of greater importance is a proper analysis of the legal and jurisdictional basis and the constituent instruments of the particular tribunal.’Footnote 28 A number of rulings from ‘hybrid’ and ‘internationalized’ courts palpably illustrate this point pertaining to immunities and the principle of legality (see section 5 on the SCSL and section 6 on the ECCC). First, however, section 4 will examine the practice of the IMT and the NMTs.
4. The IMT and the NMTs
The purpose of the following section is primarily to assess whether the judgments of the IMT and the NMTs endorse a definition of an international criminal court emphasizing ‘the involvement of the international community’ (as argued by Woetzel and Williams, see sections 2 and 3); or whether these judgments may rather be read as supporting a definition based on the nature of the court's source of authority. In addition, section 4 aims at uncovering whether post-Second World War scholarly reactions to the early international criminal case law can help to explain the present-day terminological bewilderment.
4.1. The IMT
The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (‘the London Agreement’), which set up the IMT, and the annexed Charter of the International Military Tribunal (‘IMT Charter’) were adopted by the United States, the United Kingdom, France, and the Soviet Union on 8 August 1945.Footnote 29
Before discussing the nature of the IMT, it is necessary to briefly outline the underlying presumption as to the legal status of Germany in the aftermath of the Second World War. A number of scholars, led by Hans Kelsen, have argued that a debellatio of Germany had taken place: Germany had ceased to exist as a state and the German territory and population had been placed under the joint sovereignty of the occupying powers.Footnote 30 Critics of Kelsen's ‘condominium rationale’ find the assumption that Germany was no longer a state in itself to lead unavoidably to the conclusion that it had been annexed by the Allies.Footnote 31 However, as Kelsen points out, ‘[t]he establishment of territorial sovereignty does not depend on the new sovereign's intention to hold the territory for good’.Footnote 32 Kelsen's analysis would appear to find support in the Berlin Declaration of 5 June 1945,Footnote 33 which reads inter alia:
The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not affect the annexation of Germany. …Footnote 34
The indictment of 24 Nazi leaders and six organizations was lodged on 10 October 1945, and a year later, on 1 October 1946, the IMT delivered its judgment and sentences. The Tribunal made the following statement on the competence of the state parties to the London Agreement:
The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world … The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right to set up special courts to administer law.Footnote 35
This paragraph has given rise to extensive debate and a number of scholars have interpreted it to imply that the IMT was a domestic tribunal. Georg Schwarzenberger, for example, contended that the IMT was to be classified as ‘a joint municipal tribunal’:
… the Nuremberg Tribunal is international more in form than in substance. It is more akin to a joint tribunal under municipal law than to an international tribunal in the normal sense of the word.Footnote 36
Presupposing in accordance with Kelsen that the four victorious states (temporarily) held legislative authority over Germany, it is perfectly arguable that a tribunal to try the major German war criminals could have been set up by them under municipal law. But it remains a matter of interpretation of the documents in question whether that was what the Allies actually did.
The London Agreement has all the traits of a treaty as regards the format, wording, and signatures, declarations by the parties before and after the signing, and registration with the UN Secretary General.Footnote 37 It therefore seems clear that the signatory states did not perceive of the London Agreement, including the IMT Charter, as municipal legislation exercised on the basis of delegated authority from Germany in the Berlin Declaration. More likely, they meant for it to have the form of a treaty.
In order to regard the London Agreement and the IMT Charter as municipal law, one would arguably have to presume that issues involving individuals as a matter of doctrine are governed by domestic rather than international law. Correspondingly, Schwarzenberger's categorization of the IMT as a ‘joint tribunal under municipal law’ is seemingly based on the idea that criminal responsibility of individuals inherently follows from domestic law:
Little importance need … be attached to the circumstance that the joint sovereigns exercised their jurisdiction as the fountain of law and justice in Germany by an international treaty; for this mode of co-ordinating their sovereign wills is not so much determined by the object of their joint deliberations as by the character of the joint sovereigns as four distinct subjects of international law.Footnote 38
The deciding factor for the categorization of the law governing the IMT in Schwarzenberger's argument is not the fact that the tribunal was set up by a treaty, which he does not dispute.Footnote 39 Instead, he seems to reason that since the object of said treaty is to exercise criminal jurisdiction over individuals, the IMT must be characterized as municipal law:
In substance … the Tribunal is a municipal tribunal of extraordinary jurisdiction which the four Contracting Powers share in common.Footnote 40
Such a statement about the possible ‘substance’ of international law would seem to build on a presumption against the subjectivity of individuals in international law,Footnote 41 which has arguably been unsustainable as a reflection of practice throughout the history of the discipline and is undoubtedly mistaken in the twenty-first century.Footnote 42
Interestingly, Kelsen appears to have read the IMT judgment as though the Tribunal was in accord with Schwarzenberger's line of thought, when it stated that ‘[t]he making of the Charter was the exercise of the sovereign legislative power …’ (see the quote above). He understandably finds this analysis to be ‘problematical’. But instead of pursuing the matter in detail, Kelsen emphasized the insignificance of the issue from a practical viewpoint:
… in relation to the German delinquents the difference between a legislative act of the four occupant powers in their capacity as legitimate successors of the German Government, and a treaty concluded by them and adhered to by other States belonging to the United Nations, is rather formal than substantial.Footnote 43
Though this observation was not without merit at the time, Kelsen might have taken the issue more seriously if he had known the material consequences of this formal question for twenty-first century trials regarding international crimes (see sections 5 and 6 below). In any event, it remains open to question whether Kelsen's reading of the IMT's judgment as coherent with Schwarzenberger's reasoning is correct. Kelsen seems to presume that ‘sovereign legislative power’ is – in the eyes of the IMT – necessarily exercised through domestic law. In opposition, it may be inferred that the IMT was not addressing the competence of the signatory states to issue domestic legislation as such, but instead their overall jurisdiction to govern – in the form of a treaty or through domestic law – individuals who were not their own nationals or residents. Following the ‘condominium rationale’, the Allied Powers could simply choose between exercising their jurisdiction over Germany in a treaty or through domestic law, and it seems that they opted for the treaty solution in the case of the IMT.Footnote 44
Assuming that there are no limitations (except of course for jus cogens norms) on the subject matter that may be governed by international law, the choice between issuing domestic law and entering into a treaty is open to all states governing individuals within their jurisdiction – given that at least one other state is interested in adopting a treaty on the relevant subject. What is unusual about the post-Second World War circumstances is that the Allied Powers had joint legislative jurisdiction over Germany. Outside the situation of debellatio, it is less obvious whether – and, if so, under what circumstances – the legislative jurisdiction of states includes the competence to impose treaty obligations on other individuals than their respective nationals and residents or persons who are present on their respective territories.Footnote 45
It is submitted that in the special situation of post-Second World War, when Germany was neither a state in itself nor annexed by other states, the Allied Powers had the choice between conferring obligations on German war criminals through domestic legislation or a treaty. Substantial elements of the London Agreement, including the IMT Charter, indicate that it is indeed a treaty. Pursuant to the definitional distinction between criminal courts proposed here, the IMT was for that reason alone an international criminal court. In contrast, it appears that the NMTs were set up according to domestic law:
4.2. The NMTs
In order to ‘give effect to the terms’ of the Moscow Declaration and the London Agreement, the Control Council issued Law No. 10,Footnote 46 whereby the US, UK, France, and the Soviet Union were each authorized to establish in their respective ‘Zones of Occupation’ tribunals for the prosecution of other war criminals than the 24 Nazi leaders who were brought before the IMT. The law was signed by the four zone commandersFootnote 47 on 20 December 1945, and the Moscow Declaration and the London Agreement were ‘made integral parts of it’ (see Article I).Footnote 48 Since the American trials are the most well recorded, they will serve as reference in the following.Footnote 49
In the American zone, 12 trials involving 185 defendants were brought before what is collectively referred to as the NMTs.Footnote 50 The NMTs were set up by the Military Government's Ordinance No. 7 – Organization and Power of Certain Military Tribunals of 18 October 1946.Footnote 51
The legal character of the NMTs has been heavily debated: Were they international tribunals, domestic courts of each of the Allied Powers, domestic courts of Germany, or something else altogether?Footnote 52 Apparently, some of the NMTs considered themselves to be international tribunals set up under international law. In the Ministries case, for example, Tribunal IV claimed:
This is not a tribunal of the United States of America, but is an International Military Tribunal, established and exercising jurisdiction pursuant to authority given for such establishment and jurisdiction by Control Council Law No. 10.Footnote 53
Similarly, Tribunal III held in the Justice case:
The tribunals authorized by Ordinance No. 7 are dependent upon the substantive jurisdictional provisions of C. C. Law 10 and are thus based upon international authority and retain international characteristics.Footnote 54
Following Woetzel's definition (see section 2), Heller has recently argued that the NMTs cannot be considered international, because Law No. 10 – as opposed to the London Agreement – did not enjoy the consent and approval of the international community.Footnote 55 However, the practice of the NMTs themselves would appear to confirm that the turning point is rather whether Law No. 10 belongs to international or national law. The quotes above indicate that Tribunals III and IV perceived of Law No. 10 as international in kind. Arguably, that is where the tribunals got it wrong, since a number of factors point towards national law: Law No. 10 is issued by the supreme legislative authority in Germany at the time, which happened to be a body consisting of representatives of four states:Footnote 56 The document is entitled Law No. 10, it is unambiguously issued by the Control Council and signed by the four zone commanders in their capacity as such rather than on behalf of their respective governments. There are no indications before or after its enactment that the four states intended for the Law to have the form of a treaty.Footnote 57 Thus, Law No. 10 must be categorized as national law and as a consequence the NMTs are to be regarded as national in kind.
Concluding section 4, it is submitted that neither the practice of the NMTs nor the judgment of the IMT support the notion that the ‘approval of the international community’ is a deciding factor in the assessment of the legal nature of a criminal court.
The NMTs were established under Law No. 10, which was issued by the supreme legislative authority in Germany at the time with little indication that it was to be regarded as anything other than domestic law. Although some of the NMTs claimed to be international in kind, they did not base this argument on ‘the involvement of the international community’, but rather on a (mis)conception of Law No. 10 as an international instrument.
For its part, the IMT does not seem to have shared the quandaries of scholars like Woetzel and Schwarzenberger as to the international legal personality of individuals and the Allied Powers’ jurisdiction over German nationals, which have continually influenced the academic debate. Instead, the IMT appears to have relied on the fact that the Allied Powers in the particular situation of debellatio were competent to confer obligations on German individuals, and that they had chosen to do so in the form of a treaty. Against this background, the judgment of the IMT can hardly be said to support Woetzel's dismissal of the third theory, see section 2 above, that ‘a tribunal is international if it derives its authority from a treaty or decision of an international council’.
Notably, there is a difference between Woetzel's third argument and the terminology proposed in the present article in that the latter does not imply a distinction between various kinds of sources of international law. The turning point is simply whether a court's authority is based on international law or domestic law.
The International Military Tribunal for the Far East (IMTFE) provides an illustrative example: Given that the IMTFE was established according to a proclamationFootnote 58 issued by the American General Douglas MacArthur, who acted as Supreme Commander for the Allied Powers in Japan, it is no surprise that the nature of its legal basis has been disputed. Arguments have been made in favour of regarding the IMTFE as both an internationalized courtFootnote 59 and a domestic US court. Footnote 60 However, key factors support the notion that the IMTFE was established under international law and should, accordingly, be categorized as an international criminal court:
The Potsdam DeclarationFootnote 61 adopted by the US, the UK, and China on 26 July 1945 laid down the terms for Japanese surrender.Footnote 62 Principle 10 of the Declaration states that ‘… stern justice shall be meted out to all war criminals …’. At a meeting in Moscow in December 1945, the foreign ministers of the US, the UK, and the Soviet Union agreed, with the concurrence of China, to delegate the power to implement the Potsdam Declaration to the Supreme Commander for the Allied Powers in Japan.Footnote 63 The competence to issue the constituent document of the IMTFE – and thereby implement Principle 10 of the Potsdam Declaration and Japan's acceptance of it – was thus delegated to MacArthur by an international agreement between the Allied Powers (see item II(B)(5) of the report from the Moscow meeting of 27 December 1945). As opposed to the example of the NMTs (see section 4.2.), there is no indication that either the Allied Powers or MacArthur purported to be exercising domestic legislative authority by reference to the surrender of Japan. Consequently, the argument that the IMTFE was set up under domestic law has little merit.Footnote 64
In spite of the lack of support in the practice of the post-Second World War tribunals, ‘the involvement of the international community’ continues to be attributed significance not only in scholarly writings (see section 3), but also in practice. The legal problems with this approach have become clearly apparent in a number of recent rulings by the SCSL and the ECCC to be discussed in the following.
5. Special court for sierra leone
On 14 August 2000 the UN Security Council issued Resolution 1315 requesting the Secretary General to inter alia ‘… negotiate with the government of Sierra Leone to create an independent special court …’. The UN and the government of Sierra Leone entered into an Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra LeoneFootnote 65 on 15 January 2002. Article 1 of the Agreement reads:
There is hereby established a Special Court for Sierra Leone 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.Footnote 66
On 7 March 2003, while he was still head of state of Liberia, the SCSL indicted Charles Taylor. Taylor's defence claimed that he enjoyed immunity ratione personae because exceptions to this rule can only ‘… derive from other rules of international law such as Security Council resolutions under Chapter VII of the … UN Charter …’.Footnote 67 The prosecutor on the other hand submitted:
Customary international law permits international criminal tribunals to indict acting Heads of State and the Special Court is an international court established under international law … The lack of Chapter VII powers does not affect the Special Court's jurisdiction over Heads of State. The International Criminal Court (“ICC”), which does not have Chapter VII powers, explicitly denies immunity to Heads of State for inter-national crimes.Footnote 68
The Appeals Chamber dealt with the issue in two steps. It first considered whether the SCSL is ‘an international criminal tribunal’. In particular, the Appeals Chamber assessed the implications of the fact that the SCSL – as opposed to the ICTY and ICTR – had not been set up by the Security Council acting under Chapter VII. In the Appeals Chamber's opinion, the crux of the matter was not whether Chapter VII powers had been invoked, but rather whether the Agreement reflected the will of the international community. The Appeals Chamber stated:
It is to be observed that in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations. The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community. The Special Court in such circumstances is truly international.Footnote 69
It then went on to assess the applicability of the customary rules on immunity. Relying in particular on para. 61 of the ICJ's judgment in the Arrest Warrant case (cited and discussed below), the Appeals Chamber found that heads of state (and other high-ranking state officials) do not enjoy immunity ratione personae before international criminal courts. It concluded inter alia:
… the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.Footnote 70
Arguably, this reasoning misrepresents what the ICJ actually said in the Arrest Warrant case. In the last section of the (in)famous para. 61 of its judgment, the Court stated that:
… an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that “[i]mmunities 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”.Footnote 71
Along with the Appeals Chamber, a number of scholars, including professors Diane OrentlicherFootnote 72 and Philippe Sands,Footnote 73 who were appointed by the Chamber as amici curiae, have interpreted this section to imply that the label ‘international criminal court’ always carries with it specific legal ramifications, in particular exceptions to the rules on immunities under customary international law.Footnote 74 In other words, these authors find that once it has been established that a criminal tribunal is ‘international’, exceptions to the customary rules on immunities by definition apply.
It is debatable, however, whether this line of reasoning in fact corresponds to the ICJ's statement in the Arrest Warrant case. By including the words ‘certain’ and ‘where they have jurisdiction’ in para. 61 and subsequently naming examples of tribunals, which according to their founding documents override the customary rules on immunities under particular circumstances, the ICJ did not necessarily imply that exceptions to the rules on immunities apply to all judicial bodies which may be categorized as an ‘international criminal courts’. Had that been the ICJ's intention, the Court would presumably have clarified the criteria for acquiring such a label. More likely, para. 61 simply underlines that the importance of the customary rules on immunities is to be decided in accordance with the relevant sources of law pertaining to each individual court. The particular court's founding document is of course a central source of law, but the principles of interpretation to be employed and the relevance of additional sources depend on whether this document is a treaty or a piece of domestic legislation.
The courts mentioned in para. 61 were merely examples of courts founded by sources of international law before which the rules on immunities do not apply for various reasons, in casu the bindingness of the statutes of the ICTY and ICTR adopted under Chapter VII of the UN Charter and the bindingness of the ICC Statute on its member states. In other words, the ICJ did not rule out the possibility of an ‘international court’ before which the rules on immunity would apply.Footnote 75
It lies beyond the purpose of this article to determine whether or not the Appeals Chamber erred in denying Charles Taylor immunity ratione personae. The aim here is merely to challenge the Appeals Chamber's rationale that the SCSL is an international criminal court, because it is established by ‘the will of the international community’, and that – for that sole reason – the customary rules on immunity do not apply. Instead, it is submitted that, while the SCSL is established by an international agreement, and, thus, international criminal court according to the definition proposed here, it requires further analysis of relevant legal sources to assess the relevance of the customary rules on immunities.Footnote 76
The applicability of the doctrine of Joint Criminal Enterprise (JCE) before the ECCC provides another interesting case study of a criminal court's reliance on ‘the involvement of the international community’.
6. Extraordinary chambers in the court of cambodia
The ECCC was set up by the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea passed by the Cambodian National Assembly in 2001.Footnote 77 Thus, in contrast to the SCSL, the ECCC is not set up under an international agreement, but under domestic Cambodian law. The Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, which was signed on 6 June 2003, details how the UN assists and participates in the ECCC.Footnote 78
In Case 002 involving the most senior officials of the Khmer Rouge regime, the question foreseeably arose whether imposing JCE liability on the accused would constitute a violation of the principle of legality (nullum crimen sine lege). Of particular interest for present purposes is the argument raised by the defence team of one of the accused, Ieng Sary, that the ECCC should apply the test of legality following from domestic Cambodian Law (as opposed to Article 15 of the ICCPR), because it is a domestic court of Cambodia.Footnote 79
Unfortunately, neither of the rulings on the applicability of JCE liability in Case 002 issued by the Office of the Co-Investigating Judges (OCIJ),Footnote 80 the Pre-Trial Chamber (PTC),Footnote 81 or the Trial Chamber (TC)Footnote 82 considered the legal nature of the ECCC in any great detail.
In support of its application of JCE liability under customary international law, the OCIJ relied exclusively on the fact that the ECCC ‘holds indicia of an international court applying international law’:
Considering the international aspects of the ECCC, and considering that the jurisprudence relied upon in articulating JCE pre-existed the events under investigation at the ECCC, the Co-Investigating Judges find that there is a basis under international law for applying JCE. … Footnote 83
The OCIJ did not elaborate on what it meant by ‘indicia of an international court’, but simply referred to a ruling regarding Case 001 in which the PTC concluded that the ECCC is a ‘special internationalized tribunal’. In that ruling the PTC had stated:
In reaching its conclusion, the Pre-Trial Chamber also refers to the decision of the Appeals Chamber of the Special Court for Sierra Leone in the case of Taylor, where it considered the indicia of an international court included the facts that the court is established by treaty, that it was “an expression of the will of the international community”, that it is considered “part of the machinery of international justice” and that its jurisdiction involves trying the most serious international crimes.Footnote 84
In its 20 May 2010 decision, the PTC overruled the OCIJ on this point by noting that it is ‘immaterial whether the ECCC is a domestic or an international court because this does not impact on a finding that JCE is applicable, due to the clear terms of Articles 1 and 2 of the Establishment Law’.Footnote 85 According to the PTC, it follows from Article 2 that the ECCC has jurisdiction to apply forms of liability recognized under customary international law during the Khmer Rouge regime.Footnote 86 The PTC then stated:
For the same reason, even if the OCIJ finding on an autonomous legal regime was in error, it would be superfluous and would not invalidate the finding on the applicability of the JCE before the ECCC.Footnote 87
Although perhaps not in unequivocal terms, the PTC thereby seems to confirm that the ECCC belongs to the national legal system of Cambodia. However, in a subsequent ruling, the PTC has stated:
The extraordinary and specific nature of the ECCC as an internationalised court established by mutual agreement between the United Nations and the Cambodian authorities directs the Pre-Trial Chamber to examine the standard for the principle of legality to be applied before it by looking explicitly at its establishing instruments, the ECCC Law and Agreement.Footnote 88
From the point of view of international law the result is unproblematic since the standard set by Article 15 of the ICCPR does not depend on the nature of the criminal tribunal.Footnote 89 But the question remains whether it would have been relevant – from the perspective of domestic law – to consider in more detail if retroactive incorporation of JCE as a form of liability under customary international law was in compliance with Cambodian constitutional law.Footnote 90 This is of course strictly an issue of domestic Cambodian law, which will not be explored further in the present context. The point to be made here is only that a lack of a clear distinction between international and domestic criminal courts is not just a formal matter. In particular, the terminological confusion pertaining to so-called hybrid or internationalized tribunals raises material legal questions that call for answers.
7. Conclusion
Even though it is inherently elusive and finds little support in early international criminal case law, including the judgment of the IMT, Woetzel's definition revolving around ‘the approval of the international community’ is still relied on in current scholarship. Of course, the lack of academic writings on the matter since 1962 can scarcely be taken as evidence of universal consensus. It is more likely that scholars have simply devoted their efforts to other – seemingly less formal – aspects of international criminal law. Nevertheless, this article has aimed to show why we need a clear-cut distinction between ‘international’ and ‘domestic’ courts, and why it should turn exclusively on the legal character of the document from which the court draws its authority rather than ‘the involvement of the international community’.
As the discussion of Charles Taylor case before the SCSL illustrates, the ‘involvement of the international community’ cannot in itself have the effect of granting criminal jurisdiction over – or lifting the possible immunity of – potential defendants. That is unless ‘involvement of the international community’ is strictly defined as the Security Council acting under Chapter VII of the UN Charter or a new customary rule modifying the existing norms on jurisdiction and immunity. But that was evidently not implied.
Likewise, rulings from the ECCC show that the question of the legal nature of a tribunal is of material importance pertaining to inter alia the principle of legality. While applying the test following from Article 15 of the ICCPR to all kinds of criminal tribunals is unproblematic from the perspective of international law, a different (domestic) test might be of importance to tribunals deriving their authority from domestic law.
Sarah Williams has recently advocated that we place criminal courts on a sliding scale according to the involvement of the international community. She acknowledges, however, that this exercise does not help to resolve the legal issues that such courts face. In accordance with the above analysis of the practice of the SCSL and the ECCC, Williams concludes that questions concerning the applicability of the rules on immunities and the principle of legality require ‘a proper analysis of the legal and jurisdictional basis and the constituent instruments of the particular tribunal’.Footnote 91 Against this background, it seems reasonable to inquire about the added value of categorizing criminal courts according to the degree of involvement of the international community. If anything, the above-mentioned examples indicate that this criterion in fact confuses the analysis that Williams calls for.
Instead, it is submitted that the distinction between national and international criminal courts should revolve solely around the nature of the founding document: A court set up under international law is international, whereas a court set up under domestic law is domestic. The labels ‘internationalized’, ‘hybrid’, or ‘mixed’ courts have no independent meaning and should be abandoned. This definitional distinction between ‘international’ and ‘domestic’ criminal courts would not only emphasize the decisiveness of each court's founding document relating to e.g. jurisdiction and applicable law. It would also be a consistent reflection of the overall relationship between the international legal system and national legal system(s) by underlining that the norms of the one legal system ultimately decide the effect given to the norms of the other.
