THE JUSTIFICATION OF PUNISHMENT IN INTERNATIONAL CRIMINAL LAW CAN NATIONAL THEORIES OF JUSTIFICATION BE APPLIED TO THE INTERNATIONAL LEVEL?

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THE JUSTIFICATION OF PUNISHMENT IN INTERNATIONAL CRIMINAL LAW CAN NATIONAL THEORIES OF JUSTIFICATION BE APPLIED TO THE INTERNATIONAL LEVEL?

in Austrian Review of International and European Law Online

References

t The author would like to thank Professor Leonhard Leigh (Birmingham), Dr. Tatjana Hornle, M.A. and Giinther Treppner (both Munich) for reading and criticising the draft, as well as Professor Christopher Greenwood (London), Professor Dr. Claus Roxin and Dr. Harald Niedermair (both Munich) for their precious help with literature, and Sarah Green, M.Sc. (LSE); without her this article would probably be linguistically un- intelligible. 1 UN Security Council Resolution 827, acting on Chapter VII. 2 For a description of the difficulties see e.g. ICTYAppeals Chamber Prosecutor v Tadic Judgment on Jurisdiction, 2 Oct. 1995, Case No. TT 94-I-AR72, 35 ILM 32 (1996), §§ 9-47, or Alvarez, Nuremberg revisited: The Tadic case, 7 EJIL (1996), p. 245. 3 Established by the Security Council by Resolution 955, on 8 Nov. 1994. 4 Rome Statute, UN Doc.A/CONF.183/9, 17 July 1998, reprinted in 37 ILM (1998), 999.

5 The ICTY Trial Chamber Prosecutor v Erdemovic Sentencing Judgment 5 March 1998 Case No.IT 96-22-T reduced the sentence df the previous judgment 29 November 1996 from ten to five years in appliance of the Appeals Chamber Judgment 7 October 1997. 6 ICTR Prosecutor v Akayesu, Judgment 2 Sept. 1998, Case No. ICTR-96-4-T, reprinted in 37 ILM ( 1998), 1399. 7 ICTR Prosecutor v Kambanda, Judgment 4 Sept. 1998, Case No. ICTR-97-23-S, reprinted in 37 ILM (1998), 1411. 8 In general the result of 120 votes in favour, seven against and 21 abstentions is an impressive sign towards a positive reception of the court. 9 Compare Time, 7 June 1999, p. 39 or J. Fisch in Siiddeutsche Zeitung 9 June 1999, p. 17. 10 Compare the quotations in Time, Feb. 3, 1997, p. 18. " For example the arrest of Slavko Dokmanovic indicted later amongst others for the mass-murder at Vukovar Hospital, see the amended indictment Case No. IT 95-13a and the Trial Chamber I Rule 61 decision from 3 April 1997 Case No. IT-95-13-R6 1, Time, 7 July 1997, p. 18 and the arrest of Milan Kovacevic by British special forces on 10 July 1997.

12 This terminology deems misleading as it implies a yardstick for the distribution of punishment rather than a justification of it. In German the term would be "Vergeltung" (Retaliation) which implies a reason for the punishment: jus talionis. The main notion of these theories which are in their modem version based on Kant and Hegel is the restoration of justice through the sentence. Kant, The Metaphysical Elements of Justice (translated by Ladd, 1965), p. 100-2. '3 Compare for the English context for example N. Lacey, State Punishment (1988), in the German literature for example C. Roxin, Strafrecht AT III (2nd ed. 1995) § 3.

" A. von Hirsch refers to PR Strawson's theory of censure in modem life, Censure and Sanctions (1993), p. 9. 15 According to Bentham this is so because every human being will avoid pain in order to achieve pleasure, in "The Principle of Penal Law", in The Works of Jeremy Bentham edited by Bums and Hart (1982) pp. 396-8, according to Feuerbach the threat of punishment produces a psychological coercion (psychologischer Zwang) to refrain from the crime, in Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts (1847), § 13. 16 These three methods to prevent crime were encapsulated in one theory by R v. Liszt in the so-called "Marburger Programm" in Der Zweckgedanke im Strafrecht, 3 ZStW 1881, p. 1. " This is probably the prevailing opinion in modern discussions of the issue. A close look to the different theories shows that the great majority of them is a combination of a retributive and a utilitarian approach. This is also true for the just desserts theory of von Hirsch as for him criminal justice is not justifiable without a deterring element; see A. von Hirsch, Censure and Sanctions, p. 14; and it is also true for the theories of the so called positive general prevention as they also rely on notions of just sentences; see T. H6rnle/A. von Hirsch, Positive Generalprlivention und Tadel, GA 1995, p. 261 (263).

18 See for example the justification of the German Penal Code (Strafgesetzbuch-StGB) by the German Parliament (Bundestag); compare C. Roxin, Sinn und Grenzen staatlicher Strafe, JuS 1966, pp. 377 (381). 19 See BVerfGE (Reports of the Bundesverfassungsgericht) 39, p. 1 at p. 57 and 45, p. 187 at pp. 253-4. Z° C. Roxin, Sinn und Grenzen staatlicher Strafe, JuS 1966, pp. 377 (381 ). 21 J. Rawls, 64 The Philosophical Review (1955), p. 3 at pp. 5-6. 22 H.L.A. Hart, Punishment and Responsibility, 1968, pp. 5-6. z3 N. Lacey, State Punishment, p. 47.

za F, v. Liszt, Der Zweckgedanke im Strafrecht, 3 ZStW 1883, p. 1. this third stage is not discussed by Rawls nor by Hart nor most other writers, but is strictly speaking a genuine part of the criminal system with specific rules and not a completely separate issue. However, it might be of little academic interest in the context of justification given that the execution of the sentence is a logical consequence of the first two stages. zs C, Roxin, JuS 1966, p. 377 at p. 381 [translation by the present author]. 27 A. von Hirsch, Doing Justice (1976), pp. 46-7. z8 See, J. Rawls, A Theory of Justice (1972); J. Habermas, Die Einbeziehung desAnderen (1996), pp. 65 ff.

z9 Compare J-P Muller, Demokratische Gerechtigkeit (1993) pp. 23, 39. It is impossible to thoroughly discuss the different modern theories of a social contract here. For our purpose it does not deem necessary to do so. The most influential theories consent that human beings guarantee each other in a thought contract mutual respect for the intrinsic right to liberty and equality of each individual within a society together with a basic understanding for the procedures by which the community should be governed. Whether to come to such an discursive agreement by means of a "veil of ignorance" (Rawls) or by the "public use of reason" (Habermas) does not alter the fact that it is there and needs to be protected. We will operate in the following on this reduced normative base of a "social contract". 30 J. Habermas, Die Enbeziehung des Anderen, p. 166. 3' Of course, we presume here that people are interested in personal and collective survival; see H. L. A. Hart, The Concept of Law (2nd ed. 1994), p. 192. 32 Koriath, "Zum Streit um den Begriff des Rechtsguts", 146 Goldtammer's Archivfiir Strafrecht (GA) 1999, 561. 33 C. Roxin, Strafrecht AT III (2nd ed. 1995), § 3, No 1. '° "Jene Handlungen, welche fur dieses Volk zu dieser Zeit als Storung seiner Lebens- bedingungen erscheinen, sind unter Strafe zu stellen" F Liszt, 3 ZStW (1883), p. 1 at p. 23; interestingly this sentence seems committed to the theory of the social contract and reminds one strongly of the theory of a discourse ethics. 3s This can hardly be denied and even the most radical utilitarian writers agree with that, see G. Jakobs, "Vergangenheitsbewaltigung durch Strafrecht?", p. 37 at p. 38, in Isensee (ed.) Uergangenheitsbewaltigung durch Strafrecht (1992). Indeed the ultima ratio principle is permanently promoted by the "Frankfurt School of Criminal Law'' in

accordance with their teaching of monistic-individualistic legal goods (monistisch- individualistische Rechtsgutslehre), cf. Hassemer in Alternativkommentar zum StGB Bd. 1 (1990), Vor § 1, No. 274ff. 36 This is the Rousseau formula, The Social Contract (translated by M. Cranston, 1968), pp. 59-62, compare Habermas, Die Einbeziehung desAnderen (1996), p. 164. The arguably prevailing view in German criminal philosophy is the so-called theory of "positive general prevention" (positive Generalpravention). Three positive aspects can be singled out. A first could be called the educational influence of criminal law on society (Andenaes, Punishment and Deterrence (1974) pp. 124-5). Secondly it is pointed out that the execution of criminal law has positive effect on the belief and the trust of the community in the legal system (Jakobs, Strafrecht AT, Part 1 (1991), nos 4 ff). A third effect is seen in pacification as the sentence ending the conflict between the violator and society calms the common sense of justice (Roxin, StrafrechtAT 1/1 (1995) § 3, no. 27). 38 toxin, JuS 1966, p. 377 at 380. 39 For the validity of this principle in the British tradition, see G. Williams, Criminal Law, (1961), Chapter 12; for Germany, see C. Roxin, Strafrecht AT 1/1, 1993, § 5.

'° This is also true for the common law tradition, compare Card/Cross/Jones, Criminal Law (12th ed. 1992), Ch. 3 at 3.12. 41 H. L. A. Hart, The Concept of Law (1994), p. 39.

`2 H. L. A. Hart, The Concept of Law (1994), p. 39; A. von Hirsch, Censure and Sanctions (1993), p. 9. 43 C. Roxin, StrafrechtATll1 § 3 no. 45; Hornle/von Hirsch, "Positive Generalpravention und Tadel", GA 1995, S. 265. See above p. 133, note 37. as 1. Kant, The Metaphysical Elements of Justice, p. 100.

46 T. Homle/A. v. Hirsch, GA 1995, 261 (268-9). 47 This way is indicated by C. Roxin, Strafrecht AT 1/1 § 3 no. 45. as A. von Hirsch, Censure and Sanctions, p. 13. ay V. Feuerbach, Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts, § 13; see also, G. Radbruch, P.J.A. Feuerbach, Ein Juristenleben, p. 85. 50 C. Roxin, Strafrecht AT Il1 § 3 no. 46-52; this principle is according to the Bundes- verfassungsgericht implied in the overall principle of respect for the human dignity, enshrined in Art. 1 I Grundgesetz; BVerfGE 20, 323 (331). A. von Hirsch, Censure and Sanctions, p. 15.

sz See also HOffe, Gibt es ein interkulturelles Strafrecht ( 1999), p. 74 [hereinafter referred to as H6ffe (1999)]. 53 Limbach, "Vergangenheitsbewaltigung durch die Justiz", DtZ 1995, p. 66 (71 ) observes that repentance is often missing with so-called "Schreibtischtatern". sa BayObLG NJW 1998, 392, comment by Safferling 92 AJIL (1998), 528.

55 Limbach, DtZ 1995, p. 66 (71), seems to refer to a general idea of justice when she says that the sense of justice and resistance would be strengthened by punishing "Mauer- schiitzen". 56 The results of this amnesty, however, are certainly doubtful, and are still unsolved as regards international criminal law. Ex-general Pinochet although protected by the general amnesty in Chile could be tried outside Chile as the English House of Lords decided, compare Paulus NJW 1999, 2644. 57 Thereto recently Richard Goldstone, the former prosecutor at the ICTY in Der Spiegel No. 17, 21 April 1997, pp. 170-1, and Time, 15 March 1999, p.28. 58 Limbach DtZ 1995, p. 66 (69) sees no alternative to criminal prosecution. Otherwise citizens would lose respect for the law, no other procedure would be at the same time just and fair and could unite the different political persuasions.

Sy C. Roxin, JuS 1966, p. 377 (384). 60 Some clarifying comments on criminal law and revenge are to be found with Hoffe (1999), p. 68 et seq. 6' F. v. Liszt, 3 ZStW 1883, p. 1 (45); Liszt therefore calls his theory an "evolutionary theory", p. 7. sz Similar seems to be the "Vereinigungstheorie" by H6ffe (1999), op. cit., p. 76.

63 of course this cannot follow Liszt at every stage, as we have seen above. The conditions of imprisonment are not at issue in this article. However they must be governed by the maxim of rehabilitating of the offender. ba Schwarzenberger, "The Problem of an International Criminal Law", in Mueller/Wise, lnternational Criminal Law (1965), p. 3 (13); C.M. Bassiouni, International Criminal Law, vol. I: Crimes (1986) [hereinafter referred to as: Bassiouni I p. 2. bs G. Schwarzenberger, in Mueller/Wise, p. 3 (1) in the meaning of the territorial scope of municipal criminal law, (2) of internationally prescribed municipal criminal law, (3) internationally authorised municipal criminal law, (4) municipal criminal law common to civilised nations, (5) international co-operation in the administration of municipal criminal justice, and (6) in the material sense of the word. 6" The German terminus technicus would be "Völkerstrafrecht" (Criminal Law of the peoples), which is as such a bit misleading, however, is understood to mean the material or substantive international criminal law, but has to be distinguished from the broader term "Internationales Strafrecht" (international criminal law); compare D. Oehler, Internationales Strafrecht (2nd ed. 1983), nos 2, p. 995.

6 Bassiouni/Nada, A Treatise on International Criminal Law, Vol. I: Crimes and Punishment (1973), p. 23. 68 Verdross/Simma, Universelles Volkerrecht (3rd ed. 1984) § 5. 69 S. Glaser, Introduction a l'étude du droit International Penal (1954), p. 57. '° P. K. Ryu and H. Silving in Bassiouni/Nanda, op. cit. note 167, p. 25, argue in favour of a criminal responsibility of States, but the examples they give (mainly from the German legal system) are not part of the criminal law in the strict sense (the German Penal Code does not recognise a collective criminal responsibility), but of tort liability; see ibid. F.

Munch, p. 154 and the same in Bassiouni I, p. 127-8: criminal collective (state) responsibility would need a change in general principles of law; see as well R. A. Friedlander in Bassiouni, Internatiorcal Criminal Law, vol. III: Enforcement (1987), [hereinafter referred to as Bassiouni III], p. 14. The International Law Commission (ILC) in Art. 4 of its 1996 Draft Code of Crimes against Peace and Security of Mankind (ILC 48th Session, UN Doc.A/CN.4/L.522 of May 31, 1996) does not speak of state responsibility under criminal law; and even the Draft Resolution on State Responsibility does not go any further than tort liability. 71 Verdross/Simma, op. cit. § 423. '2 Y Dinstein, "International Criminal Law", 20 Israel Law Review (1985), p. 206-7. '3 Compare e.g. S. Glaser (1954), p. 154, for whom Nuremberg was the birth of international criminal law as a unique branch of law; or H. Donnedieu de Vabres, "Le Processe de Nuremberg du Droit Penal International", 70 Recueil des Cours (1947), p. 481 at pp. 574-5. 74 See e.g. G. Schwarzenberger in Mueller/Wise, p. 33, who denies the existence of an international criminal law as a unique penal order. For him it is only a measure for internationally accepted minimum standards of municipal criminal law. Compare as well many German writers, who—not surprisingly—hold a rather critical view towards the Nuremberg trial, e.g. Jescheck/Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil (5th ed. 1996) § 14 II 4 with further references.

75 see Y Dinstein, 20 Israel Law Review 1985, pp. 206-7; R. A. Friedlander in Bassiouni III, p. 13; compare as well, Art. 7 Statute ICTY, and the Report of the Secretary-General of the UN pursuant to paragraph 2 of the Security Council Resolution 808 (1993) UN Documents S/25701 of May 3,1993, [hereinafter "the Report of the Secretary-General"], § 53. '6 G. Schwarzenberger in MuelIer/Wise, p. 13, who of course denies its existence; Bassiouni I, p. 3; Ipsen, Volkerrecht (3rd ed. 1990) § 38, no. I. " Bassiouni I, pp. 3, 271. '8 As an example may serve the Geneva Conventions of 12 August 1949, the common article 49, 50, 129 and 146: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention ..." '9 According to the principle of universality (Weltrechtsprinzip), the national courts gain jurisdiction over crimes, that neither occurred in the territory of the state (principle of territoriality) nor had any of its nationals involved (principle of active or passive

personality). This principle is e.g. found in § 6 StGB (German Criminal Code), according to which German courts are perfectly entitled to trial war criminals of the former Yugoslavia, as is the case in Munich and Dusseldorf; compare U. Fastenrath, in FrankfurterAllgemeine Zeitung No. 54, March 5, 1997, p. 6. See now the first judgment in this respect of the Bavarian Supreme Court Djajic Judgment 23 May 1997, 3 St 20/ 96, 1998 Neue Jusistische Wochenschrift [NJW] p. 392. Compare Safferling, 92 AJIL (1998), p. 528. geneva Conventions, common articles 49 II, 50 II, 129 II and 146 II: "Each High Contracting Party shall ... bring such persons [i.e. the offender] ... before its own courts. It may also ... hand such persons over for trial to another High Contracting Party ..." 8' The original wording by H. Grotius was aut dedere aut punire; Bassiouni proposed the changed wording, that we use here, for obvious reasons, see vol. I, p. 3. 82 For further elaboration of the different principles see Oehler, lnternationales Strafrecht, (2nd ed. 1982), and Ratner/Abrams, Accountability for Human Rights Atrocities in International Law (1997) pp. 139-161. 83 in this context the Judgment of the Supreme Court of Bavaria (Bayerisches Oberstes Landgericht), In re Djajic, NJW 1998, 392, is worth mentioning as the court is anxious to stress the necessity for German court to prosecute war criminals from the former Yugoslavia; see Safferling, 92 AJIL (1998), p. 528. Jorgic was convicted for genocide and sentenced to life imprisonment by the Upper Regional Court (Oberlandesgericht) of Dusseldorf on 26 Sept. 1997. The decision was upheld by the Bundesgerichtshof (BHG), Neue Zeitschrift fur Strafrecht (NStZ) 1999, 396. Compare also Safferling, "Zum aktuellen Stand des V61kerstrafrechts", Juristische Arbeitsbldtter (JA) 2000, 164. 8' See, for example, Bianchi, "Immunity versus Human Rights: The Pinochet Case", 10 EJIL (1999), 237.

R5 See Ambos, JA 1998, 998. R6 Having said that the description by Meron, that the enforcement cannot be left to international tribunals alone seems to be a twisting of facts. Until 1993 the enforcement was left solely to national courts. See Meron, "International Criminalization of Internal Atrocities", 89 AJIL (1995), p. 554 at p. 555. 8' Compare the historical analysis by Bassiouni in Bassiouni, Draft Statute International Criminal Tribunal (1993), p. 3 ff; the first attempts had been made 1899 during the 1 st Conference in The Hague. Altogether there had been eleven official and ten unofficial draft statutes for an International Criminal Tribunal as well as four draft codes of international penal law. 8R Compare especially the critical voices in Germany, Oehler, no. 1060, footnote 24 for further references; see also Meron, "War Crimes in Yugoslavia and the Development of International Law", 88 AJIL (1994), p. 78. The same is said in the ICTY's first annual report to the General Assembly and the Security Council, A/49/342, S/1994/1007, 29 Aug. 1994, §§ 3 and 10 [hereinafter ICTYAnnual Report 1994]. 89 The ICC is according to the Rome Statute dependent on the co-operation of States. The Member States to the Rome Statute are obliged to provide for the necessary assistance, although this duty is not executable (compare Art. 87 VII Rome Statute). 90 Ratner/Abrams, op. cit. at p. 295 call international criminal law a decidedly political process among diverse actors and must therefore not be expected to match with what is

known from the domestic concept. While admitting the differences this does not say that no justification is needed, indeed punishment is a measure of such far reaching consequences for the punished person, that it always needs a conclusive justification. In their treatise they scrutinise also methods of accountability aside prosecutorial. 91 Radin, "International Crimes", 32 Iowa Law Review (1946), pp 33 ff. yz Bassiouni I, p. 3, at this stage (1986) however not referring to direct enforcement. 93 General Assembly Official Records, IX, Supp. 9 (A/2393), July 28, 1954. G. O. W. Mueller in Mueller/Wise, pp. 618-20. ys Cassese, "Reflections on International Criminal Justice", 16 MLR (1998), p. 1. 96 Hoffe, Gibt es ein interkulturelles Strafrecht? (1999) y' Security Council Resolution 808 and 827, S/Res/808, 22 Feb 1993, S/Res/827, 25 May 1993; compare ICTY Annual Report 1994, § 11; this is also stressed by the Trial Chamber in its decision on jurisdiction the case of Dusko Tadic, Case No. IT-94-I-T, 10 Aug. 1995, § 38; (henceforth: Trial Chamber in the Tadic case).

98 Art. 11 (2) Universal Declaration of Human Rights, Art. 15 ICCPR, Art. 26 American Declaration of the Rights and Duties of Man (ADHR), Art. 7 ECHR, Art. 7 (2) Africa Charter on Human and Peoples' Rights (ACHPR). 99 compare Bassiouni, Crimes against Humanity in International Criminal Law (1992), chapter 3. 100 German authors are especially critical in this respect, particularly with regard to Art. 103 II Grundgesetz (German Basic Law) and with regard to the reservations to Art. 15 II ICCPR and Art. 7 II ECHR by Germany. Compare Jescheck/Weigend, AT, 5th ed. § 14; internationally it seems to be common sense that despite its importance, the nullum crimen-sentence is not an absolute principle and it might have to stand back, if important interests of justice so order; see Glaser, p. 9; Green, "The Maxim Nullum Crimen Sine Lege and the Eichman Trial", 38 BYIL (1962), p. 457 (especially at pp. 460-1). The Trial Chamber of the ICTY held the same view at its very first sentencing judgement against Drazen Erdemovic Case No. IT-96-22-T, Nov. 29, 1996, §§ 38-9; [henceforth Trial Chamber in the Erdemovic case]. Now Ratner/Abrams, op. cit. p. 295, submit as a general principle that the nullum crimen maxim should no longer be a valid defence in international criminal law. The Bundesverfassungsgericht has accepted the limitation of this principle in cases where human rights have been seriously neglected, recently in the case against the former president of the GDR Egon Krenz, 3rd Chamber of the Second Senate, 12 January 2000, 2 BvQ 60/99, 2 BvR 2414/99 with reference to BverfGE 95, 96 [132 et seq.].

101 ILC 48th session, UN Doc. A/CN.4/L.522 of 31 May 1996. 102 Report of the Secretary General, § 34; see also Appeals Chamber in the Tadic case § 19; especially for civil lawyers there remains the bitter taste of custom, as non-written law cannot serve as a basis for criminal liability. This would infringe the sub-principle lex scripta of the nullum crimen-principle, compare in detail: Roxin, AT § 5 No. 45-50; strictly speaking also common law cannot accept custom as a source of criminal law, because the penal prohibition must at least be determined by precedents as an equivalent to written law, see Nowak, "UN Covenant of Civil and Political Rights", CCPR Commentary (1993), Art. 15, No. 5. '03 Bassiouni l, pp. 1 ff., 135. 104 Dinstein, Israel Law Review 1985, pp. 207-21. 105 The discussion here is restricted to the crimes on which public discussion is focusing, mainly the crimes named in the statutes of the two international tribunals and the Rome Statute. One could certainly take issue with other prohibitions like drug-trafficking or terrorism, however, here, these questions must be left undiscussed. '°° A description of the international criminal norms after the Rome Conference can be found by Safferling, "Zum aktuellen Stand des V61kerstrafrechts", Juristische Arbeits- bldtter 2000, p. 164. Compare also Trifterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), Art. 6-8.

107 According to Art. 5 II Rome Statute the crime of aggression does not fall within the competence of the ICC until the Member States have agreed on a definition. When or whether they will do so at all is not yet foreseeable. See also Trifterer (note 106 above) pp. 103-105 10* This justification, which we can call an empirical-quantitative theory, is indeed a bit poor; Radin puts forward the immense number of people (300 million) represented by the four allies as a justification for the International Military Tribunals after World War II. This emerges as fallacy if one compares it with the German population (at or around 100 million) at that time; see Radin, 32 Iowa Law Review (1946), p. 33 at p. 43. trial Chamber in Erdemovic, § 32; in that case the Trial Chamber points out, that a crime against humanity is not only a murder as punishable under the Criminal Code of the former Socialist Federative Republic of Yugoslavia. Therefore, an analogy to the there foreseen penalty is out of the question. "° Bassiouni I, p. 2; G. Schwarzenberger in Mueller/Wise, p. 13.

"' Israel Supreme Court 36 ILR 1962, p. 277 at p. 291. 112 Ibid. at p. 291. 113 This is especially stressed by the ICTY Trial Chamber in the case Uukovar Hospital Rule 61-decision April 3, 1996, Case No. IT-95-13-R61 § 30.

"4 We do not want to discuss further the difficulties with defining crimes against humanity. The quoted definition seems to be generally accepted, see Bassiouni, Crimes Against Humanity (1992), pp 244-8; Trial Chamber in the Erdemovic case § 27; in detail: Trial Chamber Judgment against Tadic 7 May 1997, Case No. IT-94-1-T, §§ 624-660. See Stahn, "Intemationaler Menschenrechtsschutz und V61kerstrafrechf', Kritische Justiz 1999, p. 343 (354). "6 Appeals Chamber in Tadic case (Jurisdiction) §§ 71 ff at 137; compare also: Wardbrick, "The United Nations System: A Place for Criminal Courts?", 1995 Transnational Law & Contemporary Problems p. 237 at p. 255-6; Greenwood, "International Criminal Law and the Tadic case", 7 EJIL (1996), p. 265 at pp. 269 ff; in the recent Judgment against Tadic the Trial Chamber held (ibid. note 114 at §§ 584 ff), that the alleged offences did not occur in an international armed conflict. Since the Yugoslav People's Army (JNA) officially withdrew from the territory of Bosnia-Herzegovina on 19 May 1992, the influence of Belgrade on the Bosnian-Serb Army did not amount to an international correlation sufficient to that required by the ICJ in Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [hereinafter the Nicaragua case] (ICJ Reports 1986, p. 14 at § 109). The Trial Chamber was overruled by the Appeals Chamber in this regard, Judgment 15 July 1999, 38 ILM (1999), p. 1518 at pp. 1533-1551.

"' Appeals Chamber in Tadic case (Jurisdiction) § 72. "8 Of course some norms have a limited scope so that they apply to international armed conflicts only, as the Appeals Chamber found in Tadic (Jurisdiction) concerning the Grave Breaches of the Geneva Conventions-Regime, ibid. §§ 71, 79-84. Likewise Simma/Paulus, "The Responsibility of Individuals for Human Rights Auses in Internal Conflicts: A Positivist View", 93 AJIL (1999), p. 302 differentiate between the different norms and find genocide as penalised in internal conflicts, whereas penalisation of crimes against humanity and war crimes in internal conflicts is about to emerge (pp. 308-313). 119 See also Hbffe (1996), p. 78. '2o Compare Art. 9 and 10 ICCPR addressing imprisonment. 121 Bassiouni, "The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights", 9 Yale Journal of World Public Order ( 1983), p. 193. ' Z2 Compare as well the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations by the General Assembly, GA/Res/2625 (XXV), 1970.

123 Crawford, "The ILC Adopts a Statute for an International Criminal Court", 89 AJIL 1995, p. 404 atop. 406. 124 Appeals Chamber in Tadic case § 57; or the 'collective conscience', the Trial Chamber in Erdemovic case § 27; similarly the French Cour de Cassation in the Barbie case 78 ILC (1983) p. 125 at p. 130. woe refer to the common distinction between exterior (i.e. intra-States relations) and interior sovereignty (i.e. internal legal order); see e.g. J. Habermas, Die Einbeziehung des Anderen, p. 175. 126 Stahn, op. cit., misunderstands this relationship when he says that human rights law and international criminal law are complementary. In truth human rights law is verified and protected by criminal law in general. National criminal law and international criminal law are the complementary couple.

127 See, e.g., Verdross/Simma, Universelles Volkerrecht, §§ 515-523. "8 This is the consequence that Rawls has to draw as for him tolerance is the primary maxime in international relations. Therefore democratic states have to accept cutbacks in international human rights with respect to hierarchically structured states, compare Rawls, "The Law of People", in Shute/Hurely, On Hurrcan Rights, p. 42 especially pp. 68-74. lz9 Hoffe (1996), p. 110, with regard to the legal system of an International Criminal Court.

Habermas,, "Kants Idee des ewigen �Friedens-aus dem historischen Abstand von zweihundert Jahren", in Lutz-Bachmann/Bohmann (eds), Frieden durch Recht (1996), p. 7 at p. 20; the whole idea of procedural liberalism is open towards a restriction of interior sovereignty. Power and law is legitimised only through a fair and democratic procedure according to a model of public discourses. Therefore mainly the interior sovereignty is in charge; see Habermas, Die Einbeziehung desAnderen, pp. 165f, 175f; similar Baynes, "Kommunitaristische und kosmopolitische Kritik an Kants Konzept des Weltfriedens", in Lutz-Bachmann/Bohmann op. cit. p. 324 at p. 337f. 13' This term is used by Kant, a ius cosmopoliticum next to a ius civitatis (rights of men within a state) and a ius gentium (rights of nations in relation to one another); see Kant, Perpetual Peace and Other Essays (translated by Humphrey, 1988), p. 112. 132 The same issue is addressed by Alston/Simma, "Sources of Human Rights: custom, jus cogens and general principles", in 12 Australian Yearbook of International Law (1992), p. 82, with regard to the validity of human rights norms. 133 A recent publication that addresses the philosophy of international law is by Rubin, Ethics andAuthority in International Law (1997). He argues against this approach and applying a pure positivist theory does not allow the sovereignty of national states to be overruled. What we found missing in this treatise is, despite its claim to be international, any reference to modem European writing. 134 Schiinemann identifies a legal order not by the written law as the purely positivistic schools but by what is legitimate according to the culture of the people of a state. However, his theory is concerned with domestic criminal law only; see Schunemann, "Aufarbeitung von Unrecht aus totalitarer Zeit", 65 ARSP 1996, p. 97, at 97-9, 112-5.

135 Hoffe (1996), p. 55 et seq., and in greater detail: Hoffe, Vernunft und Recht, 1996, p. 77. He derives this concept from an existentialist-based social anthropology, which says that every human being is a positive social being and at the same time a negative endangered victim. 136 Appeals Chamber in Tadic case § 97. 137 An analysis of the criminal procedure is given by Safferling, Towards an International Criminal Procedure, Diss. Munchen 1999, forthcoming Oxford University Press 2000. '38 The term 'republic' is to be understood as by Kant, e.g. Kant, Perpetual Peace, p. 114. i39 Rather ironically the United Nations are not party to common human rights treaties, as the ICCPR. Nevertheless, it would be intolerable for republican states which respect

the dignity of the suspect and guarantee a fair trial to extradite alleged criminals to an International Criminal Court that does not respect at least the minimum standard as enshrined in Articles 9, 10, I4, 15 ICCPR. The Secretary General in his report (§ 106) declares it axiomatic that the ICTY has to fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings and refers expressis verbis to the ICCPR. This however is a political statement rather than being of any legal consequence. For a merely exhaustive discussion of the binding character of non-ratified treaties to the United Nations, see Reinisch, "Das Jugoslawientribunal der Vereinten Nationen und die Verfahrensgarantien des II. VN-Menschenrechtspaktes", 47 Austrian JIL (1995), pp. 173 ff. 140 See the examples quoted by v. Hirsch, Principled Sentencing (1992), p. 57. 141 Emma Borrina, European Commissioner for Humanitarian Affairs, in Bulletin ICTY, No 13, Dec. 18, 1996, p. I. "2 Hoffe (1999), p. 73, does not address this question; he seems to take the deterrent effect for granted. "' This is clearly the wording of Security Council Resolution 827 (1993), and in that way interpreted by the ICTY, compare ICTY Annual Report 1994, § 13.

z* See above p. 137. ias Of course the jurisdiction of the ICTY is limited according to Art. 1 of its Statute. 146 The latter has to be seen as lex specialis of the former in the case of an armed conflict, as held by the ICJ in the advisory opinion 8 July 1996 Legality of the Threat or Use of Nuclear Weapons; Nuclear weapons case 35 IGM (1996) p. 809, at p. 820, § 25. The decision is commented by Safferling, "Die Atomwaffe unter der Antarktis", in 40 Neue Zeitschriftpr Wehrrecht (1998), p. 177.

'Rz See above p. 150. '°a See above p. 135. 149 This is especially stressed in the preamble of Security Council Res. 955. 150 I. Kant, Perpetual Peace, preliminary article 6, p. 109, mainly refers to measures that in the course of time became prohibited especially by the Hague Conventions of 1899 and 1907. 151 See ICTYAnnual Report 1994, § 15; this is similar to what former UN Secretary-General Boutros-Ghali called `peace-building' ; see: An Agenda for Peace (1995), p. 39. �sz See ICTY Annual Report 1994, § 16, and the Trial Chamber in the Erdemovic case § 58.

�s' See above p. 128-129. 154 Nikolic in the Rule 61 Decision of the ICTY Trial Chamber is an example of profound barbarity. Case No. IT-94-2-R61, 20 Oct. 1995 reprinted in 108 ILR, 21. ass See Security Council Resolution 827 (1993), ICTY Annual Report 1994 § 12, and the Trial Chamber in the Erdemovic case § 60; and the Appeals-Chamber in the Tadic case § 72. 156 This aspect reminds us strongly of Liszt, for whom, as we saw, the origin of punishing

lies in the human instinct of taking revenge. 157 ICTYAnnuaI Report 1994, § 15. 158 Trial Chamber in the Erdemovic case §§ 60-2.

159 one of the latest proposal for an International Criminal Court (ILC Draft Statute op. cit.) gave cause for hesitation in this regard. According to Art. 25 Draft Statute the Court would only then start to operate if either in the case of genocide a state complaint is brought to the Court, or the Security Council refers a particular situation to the Court. Within the ILC this provision was certainly heavily discussed, see Yearbook ILC vol. II, Part Two 1993 [A/CN.4/SER.A/1993/Add.l (Part 2)], p. 109. Such a court would have been hardly more than a "permanent ad hoc tribunal". Luckily the Rome Statute chose the better solution as the ICC can be set into motion by either a state, the Security Council of the United Nations acting under Chapter VII of the Charter, or the Prosecutor at the ICC himself (Articles 12 to 15 Rome Statute).

160 J. Habermas, Die Einbeziehung des Anderen, p. 226.

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