1. Introduction
The prosecution and trial of perpetrators of international crimes by domestic courts is widely considered to be problematic. As systematic criminality usually implies the involvement of public authorities – either through active participation, or by omission or connivance – national courts are often held to be incapable of conducting impartial trials and rendering fair and independent judgments. The ‘epistemic community’ of international lawyers professes a clear preference for international criminal law enforcement by international courts and tribunals.Footnote 1 The primacy of the ad hoc tribunals (International Criminal Tribunal for the former Yugoslavia (ICTY) Statute, Article 9; International Criminal Tribunal for Rwanda (ICTR) Statute, Article 8) is predicated on this presumed superiority of international tribunals.Footnote 2
While suspicion of the performance of domestic courts is particularly acute in the case of (international) criminal law, it transcends this context and is reflected in a certain apprehension of the potential of domestic courts to apply international law properly. It is argued that national courts, in spite of the renowned doctrine of separation of powers, are often reluctant to disentangle themselves from the executive.Footnote 3 Committed to parochial interests, national courts would thus not be able, or be inclined, to serve the common, international good.Footnote 4
Such concerns strangely contrast with the huge practical importance of domestic courts as enforcers of international law. Focusing on international criminal law, we may draw attention to the well-known fact that ‘primacy’ has made way for ‘complementarity’ in the Rome Statute of the International Criminal Court (ICC Statute). This principle stipulates that national jurisdictions should have the first shot and that the International Criminal Court (ICC) is only allowed to intervene when national authorities do not move at all, or display ‘inability’ or ‘unwillingness’ in the conduct of investigations and prosecutions.Footnote 5 The jurisdictional primacy of domestic courts is, however, not only structurally embedded in the ICC Statute; it is also a fact of life. Even when a case or situation is admissible and the ICC is allowed to proceed, it is bound to leave the prosecution and trial of the large majority of mid-level and lower level perpetrators to national courts, as it has only the capacity to process a limited number of cases.Footnote 6 In other words, whether one likes it or not, domestic courts apply international (criminal) law on a large scale, either directly or following implementation in their own legislation.
This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing or refining international criminal law?
Four approaches may be identified, which will be addressed and analysed in the following sections. The first is the model of strict compliance in which courts have indeed faithfully internalised and applied the case law of the ad hoc tribunals. The second model (antagonism) is the exact mirror image of the previous approach in that it reveals judicial decisions which explicitly deviate from the standards and interpretations as expounded by the international tribunals. The third section discusses instances of courts charting new waters by discovering new standards of (customary) international law, while the fourth approach is, to a certain extent, a variation of the previous model, as it involves the application by domestic courts of open norms, leaving room for further interpretation.
These four sections comprise the core of this article. In the final section, I will reflect on the normative implications of the application of international law by domestic courts in general and of the distinct approaches in particular. In an earlier publication I addressed the question of whether – and, if so, to what extent – domestic courts are allowed to deviate from legal opinions and standards as expressed by international (criminal) tribunals.Footnote 7 I will revisit this topic and will defend the position – which was also reached as a conclusion in my earlier article – that some degree of ‘pluralism’ is inevitable. Domestic courts apply international law in different contexts and to new situations. By applying the law, they refine, interpret and therefore change the law, and they contribute to the further development of international (criminal) law. Furthermore, I will explore what the proliferation of standards and interpretations resulting from the decentralised application of international criminal law means for its coherence. On what authority do domestic courts render their interpretations of international criminal law? Do legal findings of international courts and tribunals on international law inherently have superior authority over decisions of domestic courts? Do the interpretations of domestic courts have legal validity only within the confines of their own legal system or do they have a wider purport? Is the proliferation of domestic interpretations conducive of the much dreaded fragmentation of international law?Footnote 8
At this point some remarks on the choices and limitations of this article are apposite. First of all, this contribution focuses predominantly on the application of international criminal law by Western courts, exercising universal jurisdiction. This focus has no principled reason, but is rather inspired by the fact that the two other contributions to this issue, also emanating from the DOMAC project, will explore the normative impact of international criminal tribunals on states of the locus delicti. Footnote 9 Secondly, the case law investigated involves mainly issues of substantive criminal law – (contextual) elements of crimes and concepts of criminal responsibility – rather than questions of criminal procedural law. This choice reflects the intellectual preferences and limited expertise of the author.
Finally, this article discusses only a specific aspect of the contribution of domestic courts to the development of international (criminal) law. Domestic courts may have their share in the creation of international law in different ways, as their interpretation of national law may produce evidence of their states’ practice or opinion, and thus provide building blocks for customary international law or ‘general principles’.Footnote 10 In this article I will address the question only of whether the application of international law by domestic courts may contribute to its elucidation and interpretation.
2. Compliance
National courts frequently invoke the case law of the international criminal tribunals in order to support their findings. They do this for several reasons. Sometimes they refer to decisions of international tribunals in search of clarification of a concept of international criminal law which features in an international instrument. A good example is a decision by the Dutch Administrative Law Division of the Council of State which was required to assess whether common Article 3 of the Geneva Conventions was part of an international agreement, defining ‘war crimes’ within the meaning of Article 1(F)(a) of the Geneva Refugee Convention.Footnote 11 The court held that in view of the dynamic nature of the reference in Article 1(F)(a), it was not enough to consult the text of the international convention but the case law relating to that convention also had to be taken into account. Subsequently, the court quoted the well-known finding of the ICTY in the Tadić case that common Article 3 should be regarded as a rule of customary international law and that violations thereof during an armed conflict give rise to war crimes, irrespective of whether the armed conflict is of an international or an internal character.Footnote 12 In other words, the reference to the case law of the ICTY served the purpose of clarifying the current state of customary international law which, in its turn, was necessary to provide a progressive interpretation of the concept of war crimes in the Refugee Convention.
More frequently, domestic courts turn to judgments of the international tribunals in search of a proper interpretation of international crimes or concepts of criminal responsibility which they then apply, either directly or following implementation and transformation into domestic law, in criminal and asylum proceedings. An interesting example – because the interpretation was actually flawed – is provided by a judgment of a military court of the Democratic Republic of Congo, which referred to judgments of the ICTR in order to buttress its reading of crimes against humanity.Footnote 13 According to the military court, the contextual elements of crimes against humanity required that attacks be either widespread or systematic, never both – the difference being that widespread attacks required the violations to be committed on a massive, frequent and collective scale and to be indiscriminately directed against multiple victims.Footnote 14
Where domestic legislation renders jurisdiction over ‘clearly established international norms’, as for instance the US Aliens Tort Claims Act, courts find it useful and appropriate to refer to case law of the tribunals in search of authority which may confirm that certain norms have indeed fully crystallised. A United States district court not only mentioned the Statutes of the ad hoc tribunals and the ICC in order to demonstrate that those who aid and abet an international crime could incur criminal responsibility, but extensively quoted case law of the ICTY which specified the actus reus and the mens rea of those who aid and abet.Footnote 15 The court rather complacently concluded that the international law of aiding and abetting liability closely parallels federal criminal law.
One can appreciate the efforts of domestic courts to clarify the content of international (criminal) law, but they do not always explain why they resort to the case law of international criminal tribunals as a source of great authority. Canadian courts have been in the vanguard in the advertising of the tribunals’ legal findings, but they have not provided satisfactory answers either. In Zazai v Minister of Citizenship and Immigration the court candidly avowed its internationalist stance:Footnote 16
The question then becomes whether the ‘accomplice’ provisions are to be interpreted in accordance with domestic criminal law or in accordance with international law. The definition of ‘crimes against humanity’, in subsection 6(3) of the [Canadian] War Crimes Act, expressly requires that it be ‘a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognised by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission’.
It could be observed that the causal explanation does not fit the question. One might agree that the elements of crimes against humanity, being rooted in international law, are to be interpreted in line with the definition as determined by international law. It does not follow, however, that the mode of criminal responsibility, like ‘complicity’, should be equally governed by international law. The court referred to previous decisions of Canadian courts which had developed the notion of complicity in crimes against humanity through statutory interpretation of the Charter of the Nuremberg Tribunal.
Even more explicit in its embrace of international law, including the case law of the international criminal tribunals, was the Canadian Supreme Court in the Mugesera case.Footnote 17 The court found that, genocide being a crime originating in international law, international law was called upon to play a crucial role as an aid to interpreting domestic law, particularly as regards the elements of the crime of incitement to genocide. It added that ‘in this context, international sources like the recent jurisprudence of international criminal courts are highly relevant to the analysis’.Footnote 18 Subsequently, the Supreme Court invoked decisions of both the ICTY and ICTR to sustain its conclusion that the instigation of crimes against humanity required the actual commission of the instigated offence, but that the inchoate offence of instigation could qualify as ‘persecution as a crime against humanity’.Footnote 19
It is interesting to ponder the question why Canadian courts in particular have been so vociferous and explicit in expressing their allegiance to international law and the case law of the tribunals. One partial explanation is that Canadian courts still suffer some trauma elicited by the highly controversial Finta decision.Footnote 20 In that case, the Supreme Court exhibited an unusually lenient disposition towards the defendant, a former Hungarian gendarme accused of confining, robbing and deporting Jews to Auschwitz. The court suggested that the defendant might have been intoxicated by the poisonous atmosphere of anti-Semitism, and added that crimes against humanity did not cover those who killed in the heat of the battle or in the defence of their country. The category rather concerned those who inflicted immense suffering with foresight and calculated malevolence.Footnote 21 The decision has been heavily criticised in that it turned anti-Semitism from an element of the crime into a defence.Footnote 22 Moreover, the subjective interpretation of the mens rea for crimes against humanity – the Supreme Court required a cruel disposition and discriminating motives – did not square with the opinion of the international counterparts.
It is suggested that the Canadian courts sought to distance themselves from the notorious Finta case and therefore adopted a highly loyal attitude towards the case law of the tribunals.Footnote 23
National courts have not only invoked the case law of international criminal tribunals in order to support their findings on international criminal law elements and concepts, they have also referred to the decisions of human rights bodies for that purpose. The Argentinean Supreme Court of Justice quotedFootnote 24 from the famous Velásquez Rodríguez case of the Inter-American Court of Human Rights (IACtHR), holding that:
although at the time of the acts in question there was no conventional text in force that used this classification applicable to the States Parties to the convention, international doctrine and practice have on numerous occasions described disappearances as crimes against humanity.
Subsequently, the court investigated whether crimes against humanity and war crimes had become imprescriptible under customary international law and invoked the Barrios Altos judgment of the IACtHR that any contrary domestic legislation – still upholding the applicability of statutory limitations for those crimes – ‘constitutes a violation of the obligation of the state to pursue and punish and, consequently, entails its international responsibility’.Footnote 25
While it may be expected that national courts within the jurisdiction of states parties to the European or the Inter-American Convention on Human Rights refer to the case law of the European Court of Human Rights (ECtHR) and the IACtHR respectively, it is more surprising that some courts have also relied on case law of these human rights courts even where their state was not a party. The Constitutional Court of South Africa, for instance, was required to assess whether juvenile whipping constituted cruel, inhuman or degrading treatment or punishment. In doing so, it extensively probed the interpretation of these separate concepts by the ECtHR in the case of United Kingdom v Tyler.Footnote 26 The court censured South Africa for having failed to justify the violation of rights and freedoms and concluded by holdingFootnote 27 that:
[t]here is unmistakably a growing consensus in the international community that judicial whipping, involving as it does the deliberate infliction of physical pain on the person of the accused, offends society's notions of decency and is a direct invasion of the right which every person has to human dignity. This consensus has found expression through the courts and legislatures of various countries and through international instruments. It is a clear trend which has been established.
National courts may have a natural proclivity to resort to international courts and tribunals in their search for a correct interpretation of international (criminal) law. Moreover such references may serve a useful purpose in counteracting the process of fragmentation.Footnote 28 It is another question, however, whether they are bound to do so. In this respect, Justice Breyer expressed the rather sweeping opinion that, whereas national courts should interpret treaties to achieve uniformity, ‘the ICJ's position as an international court specifically charged with the duty to interpret numerous international treaties (including the convention) provides a natural point of reference for national courts seeking that uniformity’.Footnote 29 Justice Breyer may have a point as far as more technical interpretative questions of international law are concerned, in the realm of which the International Court of Justice unquestionably has superior expertise and therefore a higher interpretative authority. The interesting question is whether this also holds true for international criminal law. Some national courts do not appear to share that opinion.
3. Antagonism
Domestic courts have occasionally exhibited considerably less deference towards international law in general, and judgments of the international tribunals in particular. Overt dissent, however, is rather scarce. Generally, the issue boils down to the applicability of either international or national law, and the proper hierarchical relationship between the two.
In the case of R v Jones, for instance, the United Kingdom House of Lords decided that the crime of aggression, although a crime under customary international law, could not qualify as a crime under national law without statutory enactment by Parliament.Footnote 30 The Lords evinced the democratic principle that the applicability of (international) criminal law required the involvement of the people's representative body.
The outcome in R v Jones contrasts with the Scilingo case in which the Spanish Court of Appeal displayed a friendly attitude towards international law by holding that international custom was part of the Spanish legal order. In view of the jus cogens character of crimes against humanity, the direct application of the international norm to Scilingo did not violate the principle of nullum crimen sine lege, even though the Criminal Code did not penalise such crimes until October 2004.Footnote 31
Domestic courts serve as gatekeepers, allowing or precluding the infusion of international law in the domestic legal order depending on the constitutional position of their home state. Sometimes they have to decide whether a fact pattern is exclusively governed by international law, or whether domestic (criminal) law still has normative validity.
In the case of Kesbir, the Dutch Supreme Court had to assess whether the defendant, charged with membership of a terrorist organisation, could be extradited to Turkey. Counsel had contended that international humanitarian law exclusively governed the hostilities in an internal armed conflict, suggesting that the requested person, enjoying combatant status, would be immune from prosecution. The Supreme Court did not agree with counsel's point of view. The applicability of common Article 3 of the Geneva Conventions did not preclude the competence of a state to prosecute and punish activities of a non-state armed group in a non-internal armed conflict on the basis of its own national criminal law. Moreover, in particular, common Article 3 of the Geneva Conventions did not deprive others (other than non-combatants) from protection against assaults on their life.Footnote 32
When courts refuse to apply international law directly, they do not interpret its content and therefore cannot challenge the interpretation as determined by international criminal tribunals. In a similar vein, courts which apply national law in addition to international law will usually leave the content of the latter untouched, in which case they challenge only the monopolist position of international law. It is only when they confer supremacy on national law to the detriment of international law, or when the application of national law affects the content of international law, that domestic courts are likely to collide with international criminal tribunals. As indicated earlier, however, explicit dissent is extremely rare.
In the case of Van Anraat, Dutch courts were required to assess the appropriate standard of mens rea for complicity in genocide. Earlier case law of the ad hoc tribunals had corroborated that the accomplice need not share the special intent of the main perpetrator to destroy a group in whole or in part, but that knowledge of the principal's special intent would suffice. The interesting issue was whether the mens rea could even be slightly expanded to cover dolus eventualis as well. The Court of Appeal adequately identifiedFootnote 33 the main question as:
whether the accessory must have ‘known’ that the perpetrator acted with genocidal intention or that a lesser degree of intention is sufficient, compared to or similar to the conditional intention as accepted in the Dutch legal system, or in other words: willingly and knowingly accepting the reasonable chance that a certain consequence or a certain circumstance will occur.
The fundamental issue, looming in the background, was to what extent Dutch criminal courts were entitled to apply (only) Dutch law in judging the requirement of intention in the present case or whether they should also consider the application of international criminal law.
Intriguing as the major issue may be, the outcome was somewhat disappointing. The Dutch court concluded that international criminal law in respect of the question at hand was still at a stage of development and had not crystallised completely. Instead of occupying the void and delivering a ruling which, as the court candidly avowed, could possibly have made a contribution to the development of the law, the court circumvented the issue. The available evidence did not demonstrate that Van Anraat could in any way have been abreast of the genocidal intention of the perpetrators, which implied that he did not (even) meet the threshold of dolus eventualis.
The answer to the question whether the application of domestic law can deviate from international criminal law is often considered to be dependent on the issue of whether domestic law extends or restricts the protection of international law.Footnote 34 A clear-cut example of ‘overinclusion’ is provided by Ethiopian legislation and subsequent Ethiopian case law, which allows the inclusion of political groups as targets under the qualification of genocide. Apparently, this is in contravention of the Genocide Convention,Footnote 35 which enumerates the ‘protected groups’, and the case law of the ad hoc tribunals which has emphasised the ‘stable and permanent’ composition of such groups as a distinguishing feature.Footnote 36 The Ethiopian court, however, did not find foul in the domestic provision, as it broadened the definition of genocide, rather than contradicting the Genocide Convention or international law.Footnote 37 The opposition of ‘broadening’ and ‘contravening’ is somewhat contrived and not entirely convincing, as one cannot conclude that ‘broadening’ is not in violation of the treaty, without considering the intentions of the parties.
One particularly interesting example of an explicit ‘dissent’ concerned the question of who could qualify as a perpetrator of war crimes under international humanitarian and criminal law. The issue was addressed by a Swiss court in the case of Mr Nyonteze, a Rwandan mayor (bourgmestre) who was accused of having gathered the population of his village and of inciting or even ordering them to kill Tutsis and moderate Hutus.Footnote 38 In this case the Swiss court openly censured the ICTR for limiting the scope of application of the Geneva Conventions to persons fulfilling functions either within the armed forces or within the civilian government.Footnote 39 The court admitted that a link was required between the offence and the armed conflict, but contested that the scope of perpetrators ratione personae was restricted to persons related to the armed forces. The Swiss Military Supreme Court disqualified the lower court's departure from the case law of the ICTR as ‘clumsy’, although it acknowledged that Swiss courts did not automatically have to coin the criteria of the ICTR to determine whether common Article 3 and Protocol II had been violated.Footnote 40 Interestingly, however, the appeals chamber of the ICTR itself in the Akayesu case adopted the lower Swiss court's position by finding that the trial chamber had erred on a point of law in restricting the application of common Article 3 to a certain category of persons. Instead, the appeals chamber held that ‘punishment (for violation of Common Article 3 of the Geneva Conventions) must be applicable to everyone without discrimination, as required by the principles governing individual responsibility as laid down by the Nuremberg Tribunal in particular’.Footnote 41
The Nyonteze case is a perfect example of how the dialectics between international criminal tribunals and domestic courts can function. A ‘dissent’ by a national court is corroborated by the appellate court of an international tribunal and recycled into international criminal law, thus contributing to its further development.
4. Judicial Construction
The Van Anraat case demonstrates that national courts may have some leeway in determining standards and rules of international criminal law, although the Dutch courts missed the opportunity to do so. This stands to reason: with international criminal law being in an embryonic state, much of the terrain was left uncharted and the international criminal tribunals have only recently established a more or less comprehensive normative framework.
Gone are the days, however, when domestic courts single-handedly could decide that piracy was a crime under the law of nations. The landmark case deserves to be mentioned, as it epitomises the singular position of national courts as creators of international law. In United States v Smith, the US Supreme Court predicated its conclusion that piracy is a crime under the law of nations both on authoritative opinion and on legal practice, the classic building blocks of customary international law:Footnote 42
There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature, and whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, animo furandi, is piracy … The common law, too, recognizes and punishes piracy as an offense not against its own municipal code, but as an offense against the law of nations (which is part of the common law), as an offense against the universal law of society, a pirate being deemed an enemy of the human race … And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offense against any persons whatsoever with whom they are in amity is a conclusive proof that the offense is supposed to depend not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment.
In the last century and until today international crimes have been codified with increasing precision, correspondingly limiting the space for domestic courts to determine their content on their own account. An interesting exception is, of course, the crime of terrorism, the definition of which still remains in abeyance. Italian courts have contributed to the further clarification of the crime. In the case of Italy v Abdelaziz, in particular, the court engaged in a thorough analysis of the relevant international instruments and revealed some conspicuous discrepancies.Footnote 43 Comparing the UN Convention for the Suppression of the Financing of Terrorism of 1999 with the EU Framework Decision of 2002, the court observed that the latter's definitional scope of terrorism was both more limited and greater than that of the UN Convention. On the one hand, and unlike the UN Convention, the Framework Decision excluded from its scope acts committed in wartime which are governed by international humanitarian law. On the other hand, the Framework Decision extended the concept of acts of terrorism by providing that they can also be characterised by destructive aims, namely the object of ‘seriously destabilizing or destroying the fundamental, constitutional, economic or social political structures of a country or of an international organization’, absent from the wording of the 1999 Convention.Footnote 44 According to the Italian court, the explicit and open-ended reference to definitions under conventions and other provisions of international law binding upon Italy in Italian legislation implied the incorporation of the provisions of the 1999 Convention also. As a consequence, terrorist offences included acts which are committed in the context of armed conflict and are committed not only against civilians but also against persons not actively engaged in hostilities. The court deduced from ‘the “reasoning” of the international rules’ that an act against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and physical well-being of the civilian population is inevitable, creating fear and panic amongst the local people.Footnote 45
The pertinent question is whether this interpretation of the concept of terrorism is merely for ‘local consumption’ or has wider ramifications, possibly influencing the definition of the crime at the international level. After all, in view of the lingering controversies over the contextual scope of terrorism, it is by no means clear why the court opted for the UN Convention, rather than the Framework Decision, which excludes from its ambit terrorist offences committed in armed conflicts.Footnote 46 This is an important issue which will be discussed in greater length in the final section of this article.
Whereas the dust surrounding the (contextual) elements of crimes, with the exception of terrorism, has gradually settled, concepts of criminal responsibility are by nature more open, accordingly leaving more space for domestic courts to engage in judicial construction. The Presbyterian Church of Sudan case (mentioned in Section 2 in a different context) provides a good example. The defendant had been charged with joining a conspiracy to displace residents from an oil concession and its surrounding area which, according to the plaintiffs, amounted to a crime against humanity. Quoting extensively from the famous Hamdan v Rumsfeld case of the US Supreme Court,Footnote 47 the district court held that ‘international law applies the charge of conspiracy in only two circumstances: “conspiracy to commit genocide and common plan to wage aggressive war”’.Footnote 48 Consequently, the charge of conspiracy to crimes against humanity could not be sustained. At first sight, the outcome of this case is not very spectacular. However, the court added an interesting afterthought, reacting on the plaintiffs’ argument, that on the basis of the ‘well-settled’ Pinkerton doctrine, the defendant would incur criminal responsibility for the acts of all other conspirators taken in furtherance of the conspiracy, provided they had been reasonably foreseeable to the defendant as a consequence of the criminal agreement.Footnote 49 Again invoking the Hamdan v Rumsfeld decision, the district court found that ‘the Anglo-American concept of conspiracy was not part of European legal systems at the time of the Nuremberg tribunals, and has never found acceptance in international law’.Footnote 50 Consequently, the defendant could not be held responsible for the conduct of a co-conspirator merely because that conduct was foreseeable.
The case offers an interesting example of judicial construction by domestic courts, albeit in a negative way, as the district court's decision indicates the kind of involvement that does not give rise to international criminal responsibility. The fact that a doctrine of Anglo-American pedigree was at stake gave additional authority to the court's decision, because it was familiar with the concept and could rely on precedents by the Supreme Court discussing the reception of the American legal artifact in international law.
In the Sokolović case, the German Federal Court of Justice addressed the question which also emerged in Van Anraat (discussed in Section 2) of whether those who aid and abet genocide need to share the special intent of the principal perpetrator or whether mere knowledge would suffice.Footnote 51 The court adopted the latter position. The striking aspect of the case, however, was that the question had been left in abeyance because of the contradictory decisions of the ICTY and the ICTR on the topic. While the ICTR initially required the aider and abettor to have the same mens rea as the main perpetrator, it later held that knowledge was sufficient.Footnote 52 The ICTY had not clearly expounded its position, although the trial chamber in Prosecutor v Jelisić had suggested that the specific intent requirement applied only in the case of ‘commission’ of the crime.Footnote 53 It was only in the Krstić case that the appeals chamber ended all uncertainty by explicitly holding that one who aids and abets need not share the specific intent of the principal.Footnote 54
The most remarkable element is, of course, that a domestic court took the lead and guided the course for the straying international tribunals, rather than the other way round.Footnote 55
5. Casuistry
Where rules and standards of international criminal law are of a general and abstract nature and accordingly leave courts a margin of appreciation, domestic courts will step in, apply and interpret the law, and give it new shape. Contrary to the court decisions which were addressed in Section 3, the decisions in this category do not contest prior findings of the international criminal tribunals because they occupy the space which the tribunals leave open. Furthermore, unlike the innovative approach of the courts which featured in the previous section, the decisions which are analysed in this section do not invent new international law. The rule exists, but requires further elucidation and refinement.
Domestic courts have sometimes taken the opportunity to clarify the nature of international crimes. One of the legal issues which an Italian court had to decide in the case of Lozano v Italy was whether the tragic assault in Iraq by an American soldier of an Italian official who was mistaken for a terrorist would amount to a war crime.Footnote 56 The court pointed outFootnote 57 the
evident disproportion of scale between the matter in question … and the subjective and objective characteristics of the ‘war crime’, with regard both to the definition of ‘grave breaches’ in the cited rules of humanitarian law, and to more recent case law of domestic tribunals.
The court sustained its point of view by identifying a number of factual elements: the approaching vehicle with the two Italian officials and the freed journalist on board, speedily nearing the road block in order to get to Baghdad's military airport; the location of the checkpoint at the intersection of two access routes to the airport, which had already been subject to repeated terrorist attacks; the objective situation of soldiers serving at the road block being on maximum alert, awaiting the cortege of the US Ambassador to Iraq; the fact that it was at night. The court concluded that these factual circumstances, in addition to the isolated, individual nature of the acts, seemed in principle to stand in the way of this being considered an odious, inhuman hostile act against civilians and therefore a ‘war crime’.Footnote 58
The court provided an autonomous interpretation of the concept of ‘war crimes’ in light of the particular circumstances of the case. It is common ground that violations of international humanitarian law must reach a certain threshold of ‘seriousness’ in order to qualify as war crimes.Footnote 59 What makes a violation ‘serious’ must obviously be assessed on the basis of the facts. The novel aspect of the judgment was that, in the view of the court, the seriousness was at least partially mitigated by the isolated and individual nature of the acts, suggesting that war crimes must be part of a plan or large-scale commission. This interpretation, although not generally accepted, is not necessarily flawed. It puts the question of whether the opening sentence of Article 8 of the ICC Statute is ‘merely’ a limitation of the jurisdiction of the ICC or whether it has a more substantive ‘bite’ in sharp perspective.Footnote 60 The choice of the latter option will inevitably be conducive of a further blurring between the boundaries of war crimes and crimes against humanity.
In the Jorgić case, the German Constitutional Court addressed another topical and controversial issue – that of whether genocide implies that the biological and physical annihilation of a group could also encompass systematic deportation (‘ethnic cleansing’).Footnote 61 In analysing the relevant provision under German criminal law (Article 220a of the German Criminal Code, which implements the Genocide Convention), the Constitutional Court applied teleological, linguistic and systematic methods of interpretation. The court started by identifying the aim of the criminal provisions on genocide as the protection of a legal interest that lies beyond the individual, namely the social existence of a group, as evidenced by the wording of the provision that the intent to destroy must be directed at the ‘group as such’. This intent to destroy included more than the mere physical-biological annihilation, as could be deduced from the separate paragraphs of Article 220a in their mutual connection:Footnote 62
§ 220a.1, Number 3 of the German Criminal Code complements ‘destruction’ with the special attribute ‘körperlich’ (bodily), thereby establishing that the criminalised actions must be combined with the physical annihilation of the group. § 220a.1, Number 4, on the other hand, establishes the special case of the biological annihilation of a group without having the effect of a physical annihilation of the presently living members of the group.
In other words, if biological extinction were to involve only physical annihilation, the final section of Article 220a.1 would have no separate meaning and would be redundant. Biological destruction could be achieved by other means.
The Constitutional Court emphatically held that the lower courts should not deviate from the prescripts of international law, but that they had not done so:Footnote 63
It is clear that the non-constitutional courts’ interpretation of § 220a of the German Criminal Code lies within the margins of the possible interpretation of the international law elements of the crime of genocide and conforms to the relevant jurisprudence and practice of the United Nations.
The problem was, however, that the international criminal tribunals never had explicitly agreed that ethnic cleansing could constitute genocide. The German court cleverly gathered their ‘silent approval’ from a number of their findings. First, the court referred to the Rule 61 decision in the case of Karadzić and Mladić, in which the trial chamber of the ICTY had held that the special intent to destroy a group could be deduced from political speeches and plans. The policy of mass deportation without the assignment of new dwellings could produce the destruction of the group and testify to the schemers ‘special intent’.Footnote 64 Next, the German court quoted the decision of the ICTY in Prosecutor v Jelisić in which the trial chamber had found that genocide could also involve the physical annihilation of a limited number of a group in a geographically limited area. The destruction of the group could, according to the German court, be accomplished by a combination of the annihilation of a substantial part of the group and other punitive measures against the other members. Ethnic cleansing could thus amount to the separate count of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’.Footnote 65
A final judgment that exhibits an interesting example of casuistry, which may be conducive to the further development of international criminal law, concerns the investigation into the requirement of a ‘nexus’ between a war crime and an armed conflict, as conducted by a Dutch court in the case of Joseph M.Footnote 66 The defendant, brother of the infamous Ruzindana who was convicted by the ICTR in 1999, stood trial on charges of genocide, war crimes and torture, as he allegedly had committed multiple rapes and inflicted severe bodily harm on Tutsis. As the Dutch legal system did not provide for universal jurisdiction at the time of commission, the court's attention focused on the question of whether the defendant's actions could qualify as war crimes.Footnote 67 To that purpose the court naturally had to assess whether Mpambara's alleged crimes bore a sufficient connection with the internal armed conflict. The court meticulously explored the case law of both the ICTY and the ICTR on the topic.
In the Tadić case, the ICTY had put in general terms that the alleged offences had to be closely related to the armed conflict, adding thatFootnote 68
[i]t is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, … nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict.
The appeals chamber in Akayesu had opined that the close nexus generally would imply that the perpetrator of the crime would have a special relationship with one party to the conflict, but that such a special relationship was not a condition for qualifying the offence as a war crime.Footnote 69
Whereas these early judgments were rather general in nature and phrased in negative terms, the appeals chamber in Kunarac made some efforts to provide more tangible criteria. It corroborated earlier findings that war crimes could be committed temporally and geographically remote from the actual fighting, but added that the armed conflict should have played a substantial part in the perpetrator's ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.Footnote 70 Furthermore, the appeals chamber offered a number of factors which should be taken into account: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties.Footnote 71
In Rutaganda, the appeals chamber largely agreed with the criteria as developed in the Kunarac case, but specified that the determination of a close relationship between particular offences and an armed conflict would usually require consideration of several factors, not just one, and added that ‘particular care is needed when the accused is a non-combatant’.Footnote 72
What was the value of these judgments as authoritative precedents? According to the Dutch court, the judgments ‘did not offer a framework for assessment based upon which the present case can be assessed in a simple way – following the rules of deduction, as in mathematics – to be able to say whether or not there is a nexus’.Footnote 73 The tribunals had rather followed a ‘casuistic approach, whereby the answer to the question whether the nexus requirement has been satisfied really depends on the evaluation of all relevant facts and circumstances’.Footnote 74
At first sight, the court itself also (only) engaged in casuistry. Contrasting the case at hand with previous cases before the ICTR, it pointed out that the accused was a civilian and that the roadblock, which had preceded and facilitated the commission of atrocities, had not served a special military goal. The connection between the crimes and the armed conflict existed solely on an equation between all Tutsi and the Rwanda Patriotic Front, serving as a pretext to justify the genocide, and this was insufficient to sustain proof of a nexus.Footnote 75
On closer look, however, the court's opinion had wider – and probably intended – ramifications. It took great pains to separate the armed conflict from the genocide, explicitly endorsing judgments of the ICTR which had reached a similar conclusion.Footnote 76 A deeper motive for the strict separation between genocide and the war probably was that by lumping together genocide and war crimes, the court might inadvertently have added fuel to the génocidaires who adduced the war as a pretext to kill Tutsis randomly.Footnote 77 The court hardly concealed the wider purpose of its findings, by holding that ‘[i]f only this equation [between the Rwanda Patriotic Front and Tutsis] would be enough to assume a nexus, this would mean that almost all crimes committed against the Tutsi in that period … should be regarded as war crimes’.Footnote 78
In sum, the district court aspired to transcend the confines of the particular case before it by engaging in the wider – and politically rather sensitive! – discussion of the proper relationship between the armed conflict and the genocide in Rwanda. It thus could have contributed to the legal developments in this respect. Whatever the merits of the court's opinions might have been, its hopes on eternal glory were soon dashed as the Court of Appeal did not share the district court's findings. The appellate court held that the genocide and the armed conflict in Rwanda had historically been closely related and decided that Mpambara's crimes bore the required nexus with the war. Not only had the armed conflict facilitated these crimes, the crimes had been part and parcel of the war.Footnote 79
6. Some Final Reflections
The previous sections have revealed some distinct approaches of domestic courts towards international (criminal) law in general and their allegiance to the opinions and standards of international tribunals in particular. Many domestic courts invoke the case law of the international tribunals in order to support their own judgments. Much fewer are the instances in which courts take contrary positions or explore new grounds in a legal terra incognita. However, they do apply and interpret the law, employing the margins of appreciation left open by general norms, and thereby contribute to the further development of international criminal law.
From the perspective of legal certainty, a large measure of consensus on the basic tenets and standards of international criminal law is undoubtedly recommendable. A normative patchwork, leaving each and every domestic jurisdiction to harbour its own private assessment and interpretation of international criminal law, would not only be undesirable but would fundamentally subvert the very pretensions of international law.Footnote 80 This body of law by its nature requires a concerted application and interpretation. One technique to achieve this homogeneity is for domestic courts to take the case law of international tribunals as a frame of reference, or at least as normative guidelines.
Generally, domestic courts have not elaborated on the reasons why they adopt the case law of international tribunals as guidelines for their own assessment of international criminal law, presumably because they have considered such a position to be self-evident.Footnote 81 In the case of Joseph M, the Dutch district court at least made an effort to elucidate its approach.Footnote 82 The court candidly avowed that it considered the case law of the ICTR, the ICTY, the ICC and the Special Court for Sierra Leone to set the guidelines for its own judgment. It explained that these courts are responsible for bringing to trial defendants who have allegedly committed international crimes. The court then singled out the ICTR as ‘specifically in charge of the trials of defendants who (allegedly) committed international crimes in Rwanda’. Finally, the court alluded to the legal history of the Dutch International Crimes Act, which encourages the national courts to use international case law as a legal guideline.
The judgment of the district court in this particular case, however, demonstrates the limits of international guidelines. They simply may not be sufficient for the domestic courts to find a reasonable and fair solution in the case at hand, prompting them to explore other avenues and reach their own conclusions. In other words, between strict and docile compliance (compare Section 2) and an obstinate flouting of international standards (with Section 3), there is the slightly foggy space of ‘margin of appreciation’ in which domestic courts must gropingly find their own way.
It is very difficult, if not impossible, to determine the scope and nature of this intermediate space. Obviously, its dimensions are influenced by the nature of the legal rule: open-textured standards leave more leeway, while stricter norms correspondingly confine the scope for interpretation. But the normative and cultural contexts from which these standards have emerged and in which they must be applied play their part as well. One way to tackle this problem is to distinguish sharply between the application and interpretation of legal rules. Nollkaemper asserts that there is an essential distinction between a different application of a norm to particular facts, and the interpretation and meaning of the norm as such.Footnote 83 In order to buttress his point of view, he refers to a perceptive essay by Karen Knop, who coins the term ‘disembeddedness’ as a qualification of international treaty law, resulting from the efforts to reach some common ground between different legal cultures.Footnote 84 It is, however, highly questionable whether Knop endorses such a sharp distinction herself when she observes that ‘the critique that international law is not neutral gains in importance from the assumption that international law can be imposed exactly as intended because this means its hegemony is complete’. She adds: ‘If the domestic interpretation and application of international law prove instead to be more complex, then there may be space to mediate the relationship between global and local.’ As an alternative to the ‘imposition of meaning’, Knop suggests comparative law as a methodology from which international law can learn, if one is prepared to acknowledge their shared challenge to translate norms from ‘elsewhere’.Footnote 85
Apart from such criticism which derives from different appreciations of hierarchy and power, Nollkaemper's approach faces an epistemological problem as well, in that application and interpretation cannot easily be separated. This conclusion was recently confirmed by the appeals chamber of the Special Tribunal for Lebanon when it held that ‘[i]nterpretation is an operation that always proves necessary when applying a legal rule’.Footnote 86 The apodictic position that a text or rule is clear and can be applied straightforwardly, without interpretation, is a logical fallacy, as it is itself the conclusion of an interpretation.Footnote 87 Besides, this position fails to appreciate that context determines meaning.
The pertinent question is whether an interpretation of a legal rule also changes its content. From a strictly logical point of view, this is undoubtedly true – unless the case to be adjudicated is exactly the same as a previous one – but obviously it is a matter of degree, depending on the specific context. Knop vividly paints a provincial production of a famous play with a ‘cast of awkward amateurs and bungled bits of stage business’ as a metaphor of the way in which traditional international lawyers regard domestic courts. She concludes that ‘every local production might be seen to change the meaning of the play’.Footnote 88
The message that Knop intends to convey – with which I fully and heartily agree – is that domestic courts, by applying and interpreting international law to specific contexts, inevitably influence and change the content of international law. The topic of the relationship between the application, interpretation and development of the law by courts has been eloquently expounded by Jennings:Footnote 89
Of course we all know that interpretation does, and indeed should, have a creative element in adapting rules to new situations and needs, and therefore also in developing it even to an extent that might be regarded as changing it.
But after ‘stating the obvious’, he adds a word of caution:
Nevertheless, the principle that judges are not empowered to make new law is a basic principle of the process of adjudication. Any modification and development must be seen to be within the parameters of permissible interpretation.
This acute observation obviously begs the question what those ‘parameters of permissible interpretation’ are. While this question cannot be answered in the abstract, I will tentatively make some suggestions by identifying and distinguishing three categories within the normative framework of international criminal law. The first category consists of those rules and standards which have explicitly been incorporated in the Statutes of the ICC and the international criminal tribunals. It is carved in stone that crimes against humanity are acts which are committed as ‘part of a widespread or systematic attack against a civilian population’, that the ‘declaration that no quarter will be given’ is a war crime in both international and non-international armed conflicts, and that those who ‘directly and publicly incite others to commit genocide’ incur individual criminal responsibility under international law.Footnote 90 Although each Article of the ICC Statute on the substantive crimes under the jurisdiction of the ICC starts with the qualifier that the definition is limited to the purposes of the Statute, the norms just mentioned are uncontrovertibly part and parcel of customary international law. They are inviolable in that courts and national judges – and international judges, for that matter – are not allowed to tamper with them by, for instance, holding that isolated events could also amount to crimes against humanity, or by finding that inducing someone privately might also constitute incitement to genocide.
The same holds true for those norms which, though not codified in the Statutes, have been authoritatively qualified by international tribunals as belonging to the realm of customary international law. A good example is the assessment of the actus reus of aiding and abetting in general, and the required effect of the assistance on the main crime in particular. After a thorough examination of international and national case law, the trial chamber in the Furundžija case came to the conclusion that ‘the position under customary international law seems therefore to be best reflected in the proposition that the assistance must have a substantial effect on the commission of the crime’.Footnote 91 As soon as an international tribunal has determined that a rule belongs to customary international law, it is sacrosanct for both international and domestic courts in the sense that they cannot change it at will and single-handedly. It bears emphasis, though, that domestic courts, at least in principle, would equally be authorised to assess and determine the content of customary international law. Above, in Section 4, I have discussed a number of striking examples. The equality of international tribunals and municipal courts in this respect has been confirmed by great international lawyers such as Jennings and Lauterpacht, who have observedFootnote 92 that:
instead of thinking of municipal decisions as a source by analogy for the development of international law, those decisions have become a direct source of international law; a source, moreover, of both custom and of the interpretation of treaties.
It should be highlighted that this observation is made in the context of a discussion of the interpretation of international law by municipal courts, and not in the context of decisions by national courts as evidence of state practice.
The third category involves those (open-ended) norms which require further interpretation. We may all agree that a war crime must have some connection with an armed conflict, but what does a ‘nexus’ exactly entail? We know from the law on the books that those who incite others to genocide incur criminal responsibility, but what does ‘incitement’ actually mean? An answer to the latter question requires a deeper investigation into a specific context, including an assessment of shared understandings of semantics between the source of the inflammatory message and his audience, rooted in common culture and history.Footnote 93 It would, of course, be naïve and flawed to portray the ensuing judicial findings as ‘mere’ cultural particularities, leaving the essence of the legal norm intact. The application of the legal concept to such a situation implies its interpretation, is conducive of its further elucidation and perforce changes its content, although perhaps marginally. In my view, these contextual forms of ‘casuistry’ constitute the major contribution to the development of international criminal law by domestic courts.
A final issue that needs to be addressed is whether the decisions of municipal courts on international law have only local currency, or whether they may have a further reach. The rule of thumb is that the more specific and context-driven the judicial finding is, the less will be its claim to global validity, while more general and less specific decisions may have wider ramifications.Footnote 94 The factual and normative findings of the ICTR and local courts on the insidious role of Radio Télévision Libre des Mille Collines in the inducement of the genocide may indeed have only specific significance for the assessment of international crimes and responsibility in Rwanda, while the more general assessment by the Dutch district court of the nexus requirement, including its observations on the relationship between the armed conflict and the genocide, may have a wider application.
The crucial point that I wish to make is that the answer to the question depends on the topic under consideration and the quality of the legal argumentation, not on the place of the court within a presupposed hierarchical order. Whereas there are no good reasons to assume that, compared with domestic courts, international criminal tribunals have superior authority and skills in ascertaining whether a rule belongs to the realm of customary international law, it is equally unclear why a legal finding of an international tribunal, given in a specific context, should exceed that context simply because it emanates from an international tribunal. It is by no means self-evident that international tribunals have stronger claims to a correct and authoritative interpretation of international (criminal) law.Footnote 95 International law may not even be a coherent entity in this respect. Whether international tribunals or rather domestic courts have superior claims in the realm of the interpretation of international law may depend on the level of international integration and the transfer of state powers, criminal law traditionally being strongly wedded to the concept of sovereignty.
The establishment of an international criminal court has not changed the situation that international criminal law enforcement is essentially non-hierarchical in nature.Footnote 96 Notwithstanding the qualms of its critics, the ICC is not meant to serve as a supranational court, entrusted with the power to trump and revise the judgments of national courts whenever it deems those decisions to be in contravention of the mainstream interpretation of international criminal law.Footnote 97 The complementarity principle requires a more marginal test, arguably allowing national jurisdictions ample leeway in the modus quo of criminal prosecution and trial, as long as they display both ‘willingness’ and ‘ability’. Nor does the ICC Statute envisage a preliminary rulings procedure, modelled on Article 267 of the EC Treaty, which enables national courts to obtain an authoritative interpretation of a point of (international) law from a supranational or international court.Footnote 98 Such a mechanism pre-eminently serves the function of streamlining the application and interpretation of international law.Footnote 99
The last observation raises the question of how at least a certain degree of coherence in the application and interpretation of international criminal law can be achieved. After all, in view of the aspirations of legal certainty and equality expressed at the beginning of this section, decentralised and non-hierarchical enforcement of international criminal law may be conducive to widely divergent outcomes. Fragmentation is a liability in a system of dispersed enforcement of international law.Footnote 100
In my view, the risk of fragmentation should not be exaggerated. For one thing, as argued above, the Statutes of the ICC and ad hoc tribunals, as codifications of international criminal law, serve as a solid normative framework. These elements of crimes, concepts of criminal responsibility and defences bear the rubber stamp of international norms, exhorting domestic courts and international tribunals alike to abide by their content on penalty of losing international legitimacy. Secondly, the nature of (international) criminal law itself contributes to its coherent application and interpretation. The nullum crimen sine lege principle requires criminal provisions to be as precisely drafted and detailed as possible, because more open and ambiguous norms would militate against the idea of lex certa. By implication, courts have less freedom in interpreting those norms to their own liking. The point is recognised by Burke-White, who arguesFootnote 101 that:
These hard obligations and an extraordinarily narrow zone of acceptable compliance suggest a convergence around a precise set of rules that various judicial mechanisms will uniformly enforce against individual transgressors.
Although Burke-White, in my view, slightly overstates the point by failing to appreciate that international criminal law harbours many open-ended concepts which leave room for interpretation – see the examples presented above – there is certainly some truth and merit in his observation.
Finally, courts are increasingly inclined to interact and refer to each other's decisions to reach a common understanding of international law. Sections 2 and 5 of this article provide examples of domestic courts alluding to case law of international tribunals, but domestic courts have also consulted the decisions of their peers, at the horizontal level.Footnote 102 Moreover, the international criminal tribunals have expressed interest in national case law. Occasionally, they have examined national case law in search of ‘general principles’.Footnote 103 For the purpose of this article it is more interesting that the ICTY has apparently attached special relevance to the application by domestic courts of international (criminal) law.Footnote 104
Such frequent interactions and mutual references, indicating the gradual emergence of a ‘community of courts’, will probably be conducive to a further approximation and harmonisation of international criminal law.Footnote 105 As indicated above, there are limits to a fully fledged unification of international criminal law because legal concepts require different application and interpretations in different contexts. A fair and effective system of international criminal law enforcement may well be best served by consensus on the core and flexibility at the fringes.
