Venues for Prosecuting

Individuals Charged with the Commission of International Crimes
Venues for Prosecuting Because of the ever-expanding condemnation of international crimes of a humanitarian or human rights law character, the world is seeing a corresponding slow-but-steady increase in the availability of judicial fora where individuals responsible for perpetrating such crimes can be prosecuted. It is certainly to be hoped that this trend will continue and will lead to successful convictions and adequate punishment for criminals found guilty of committing these types of offenses against international law.

Advocates of Palestinian rights world-wide continue to monitor these developments in the hopes that eventually individual Israelis responsible for ordering or committing actions which are widely regarded as war crimes, crimes against humanity or genocide will one day be brought to justice.

 The International Criminal Court
Much attention is currently being focusedin the ongoing measures being undertaken to constitute the International Criminal Court (ICC), and for good reason. The ICC will mark the first establishment of a permanent court for prosecuting individuals charged with responsibility for committing the world's most serious crimes - genocide, crimes against humanity and war crimes.

The Rome Statute, which is the treaty upon which the jurisdiction of the ICC will ultimately be founded, was adopted on 17 July 1998 at the conclusion of a diplomatic conference in Rome. Of the 160 countries represented at the conference, 120 present voted in favor of the Rome Statute, seven countries voted against it (including the U.S.) and twenty-one abstained.As of 12 February 2001, 139 countries (including the U.S. and Israel) had signed the Rome Statute. Signing a treaty is generally viewed as an indication that the country signing eventually intends to ratify it.

In order for the Rome Statute to come into effect, sixty countries must ratify it. As of 12 February 2001, twenty-nine countries had ratified the treaty. Thus far, neither the U.S. nor Israel has ratified - each country has its own distinct internal legislative or parliamentary procedures for doing so. It is certainly to be hoped that both countries will ratify the treaty - and incorporate the treaty into their respective domestic legislation, as necessary - without undue delay. Human Rights Watch anticipates that the Rome Treaty will receive the requisite sixty ratifications and comeinto effect in mid-2002.

Importantly, states are not allowed to make reservations when ratifying the Rome Statute. (Reservations to a treaty, where permitted, are a means by which a state may "opt out" of specific provisions of treaty.) Since no reservations are allowed to the Rome Statute, a state chooses either to be bound by the treaty in its entirety or not to be bound by it at all. Absent specific case referral by the UN Security Council, ICC jurisdiction will not extend to states which decline to ratify the treaty because state participation is purely voluntary.

(However, since non-ratifying states will run the obvious risk of acquiring the stigma of being "war criminal protectors," the onus will obviously be on states to ratify.) Additionally, however, the Security Council may refer specific cases to the ICC for prosecution, and in that case, the ICC will have jurisdiction to try the case (assuming that other jurisdictional requirements are met.).

The purpose of the ICC is to be a supplementary forum, available as a back-up for prosecuting war criminals when governments of which they are nationals fail to do so. Thus, the first responsibility for prosecution rests at the national level. Nevertheless, the sheer existence of the ICC will be an active inducement for governments to prosecute their own war criminals using domestic procedures which meet international due process and evidentiary requirements.

There are two major limitations on the jurisdiction of the ICC to prosecute crimes. The first is that the ICC will only have "prospective" (forward-looking) jurisdiction, and no "retroactive" jurisdiction. Thus the ICC is only able to initiate proceedings against persons for conduct committed after the entry into force of the treaty. (It is unclear at this point whether "continuing" conduct - i.e., conduct begun before the entry into force of the treaty but continuing beyond that date - would come within the scope of the statute.) Also, there is a "seven-year grace period" provision which allows a state invoking it to exempt its nationals (or any other persons found within the territory of the state in question) from prosecution for a period of seven years after the state has ratified the treaty.

Both of these limitations would appear to pose serious obstacles to a contemplated attempt to use the ICC as a venue for initiating criminal proceedings against individual Israelis for their roles in the events of the 1948 Nakba, for example. Israel and the U.S. have both lobbied hard against provisions in the Rome Treaty which classify settlement activity in occupied territory as a "war crime." So far, however, these provisions remain in the statute.

 Domestic Fora - "Universal" Jurisdiction for Internationally Recognized Crimes

It is now widely accepted under international law that certain crimes are of such an egregious nature that states are able to prosecute individuals charged with committing them regardless of the nationality of the perpetrator and regardless of the geographicallocation where the crime was committed. This jurisdictional principle - whereby states are allowed to exceed their normal jurisdictional limits, which usually tend to be restricted to actions concerning their own nationals or occurring within their own territory - is known as "universal jurisdiction." The way that individual states may choose to codify the procedures for exercising universal jurisdiction over internationally recognized crimes varies widely.

The Case of General Augusto Pinochet of Chile

The effort initiated in 1998 to extradite former Chilean dictator General Augusto Pinochet from England to Spain for criminal prosecution for human rights abuses charged to have been committed under his command - which almost succeeded but for the intervention of Britain's executive branch - has raised international awareness about, and hope for further success in, the possibilities for using domestic national fora to initiate proceedings against individuals charged with having ordered or committed international crimes.

In the Pinochet case, for example, Spanish procedures enabled a Spanish judge, Judge Baltasar Garzon of the Spanish National High Court (Audiencia Nacional), who was investigating human rights violations committed in Chile against Spanish nationals under the Pinochet regime, to file a "commission rogatoire" (official petition), pursuant to which Spain filed a formal extradition request with Britain. General Pinochet was temporarily in Britain for medical treatment at the time the extradition request was filed. Three other countries joined Spain in the extradition request - Belgium, Switzerland and France. General Pinochet was arrested in the U.K. on 17 October 1998 pursuant to the extradition request, while its review was pending.

In an important decision, the British House of Lords ruled on 24 March 1999 that General Pinochet did not have immunity from prosecution as a former head of state. It was only due to the objections of Pinochet's attorneys, who requested a medical examination to ascertain Pinochet's health condition, and the intervention of Britain's home secretary, Jack Straw, who decided that he was "minded" not to extradite General Pinochet based upon the medical report, that the extradition request was blocked. Despite requests for further medical examinations received from Belgium, the Chilean government, and the five NGO's participating in the extradition campaign against Pinochet, Mr. Straw remained firm in his decision. General Pinochet was set free and he returned to Chile.

The Pinochet story is not yet over, although the legal battle has moved to the Chilean courts. On 1 December 2000, General Pinochet was indicted in a case involving the "disappearance" and presumed murder of 19 political detainees during the early years of his dictatorship. On 29 January of this year, Pinochet was ordered to be taken into preventive custody in Chile. Chilean courts have tossed out his claim of immunity to suit, which he based upon his status as "Senator for Life" (a category created under the Constitution which was passed during his 17-yearlong dictatorship). At last count, General Pinochet has been named in 215 pending lawsuits in Chile based upon human rights abuses charged to have been committed during his dictatorship.

Thus, the "Pinochet precedent" stands as a landmark groundbreaking example where the principle of "universal jurisdiction" was used to stablish that a former head of state could not be held immune to prosecution for international crimes committed under his leadership.

Other Efforts to Obtain Jurisdiction over International Criminals
Efforts are underway to obtain jurisdiction over other international criminals to bring them to justice. One of the most notable is the February 2000 arrest and indictment in Senegal of Hissein Habre, in what is being termed the "African Pinochet" case. Habre, the former dictator of Chad, has been indicted in Senegal - which prides itself on being the first country in the world to ratify the ICC statute - on charges of torture alleged to have been committed during his regime in Chad. Human Rights Watch played a major role in working quietly with Chadian human rights groups to gather the evidence in Chad necessary to build a case for indictment against Habre, which was then presented to a Senegalese investigating judge (Juge d'Instruction), who subsequently issued the requested indictment.

Pursuant to the indictment, Habre has been placed under house arrest in Senegal. Since his presence in Senegal can now be guaranteed, the work of collecting further evidence against Habre has continued in Chad but can now proceed more openly. It is hoped that Habre will come to trial this year. Habre thus becomes the second former head of state (after Pinochet) to be arrested in another country for human rights crimes.

In a case involving a non-former head of state, French police arrested in July 1999 Mauritanian colonel Ely Ould Dah, who was temporarily in France to study at a French military school, on the basis of two eyewitnesses present in France who charged him with torture. In addition, several European countries -including Belgium, Denmark, France, Germany,  the Netherlands and Switzerland - have initiated or completed prosecutions of persons charged with complicity in international crimes in either the former Yugoslavia or Rwanda. Earlier this year, Mexico decided to extradite Argentine former naval captain Ricardo Miguel Cavallo to Spain, to face charges of genocide, terrorism and torture.

In December 2000, a judge in Paraguay issued a request for the arrest and extradition from Brazil of former Paraguayan dictator General Alfredo Stroessner, who is charged of orchestrating numerous rights abuses during his 35-year authoritarian rule of Paraguay. The same judge also issued a request to Honduras for the extradition of formerParaguayan Minister of the Interior Sabino Augusto Montanaro, who is charged with having assisted Stroessner in carrying out the abuses.

In order to increase their ability to gain domestic jurisdiction over international criminals, states continue to revise their domesticprocedures to make it easier to obtain "universal jurisdiction" over suspects located even temporarily within their territory. In Belgium, legal changes were recently instituted to make it possible to obtain jurisdiction over individuals located even temporarily in Belgium who are suspected of having committed international crimes in Rwanda. In France, the concept of head of state immunity is currently under review to determine whether it should be waived in cases of sitting heads of state who are charged with having committed or having ordered international crimes.

U.S. Statutes Providing for Jurisdiction Over International Criminals

The United States has enacted various statutes over the years which have expanded traditional concepts of domestic jurisdiction to include non-national defendants and/or behavior conducted outside U.S. territory. These statutes include the Alien Tort Claims Act and the Torture Victim Protection Act. In addition, manufacturers' liability cases have expanded U.S. tort law to impute liability to corporations where they sell products abroad knowing that they will be used to harm third parties.  In the U.S., military courts are responsible for trying military personnel charged with violating the laws of war. In 1973, in the case of United States v. Calley, an American soldier was convicted of murdering civilians in My Lai village during the Vietnam War.
 Israel's Exercise of Universal Jurisdiction

 In the early 1960s, Israel kidnapped Adolf Eichmann and brought him back to Israel to stand trial for crimes against humanity committed during the Nazi holocaust. Eichmann was found guilty in 1961 and executed by Israel, in the only case of judicially-sanctioned killing carried out by Israel, which officially does not have the death penalty.(¹)

Jurisdiction for Israel to conduct the kidnapping and the trial was said to rest upon the principle of "universal jurisdiction," i.e., that the crimes of which Eichmann was accused were so egregious that Israel was said to have jurisdiction over them even though Israel did not yet exist as a state at the time that the crimes were committed and therefore the crimes could not be said to have been committed against Israeli nationals or on Israeli territory. Similarly, in 1985, Israel succeeded in having John Demjanjuk extradited from the U.S. to stand trial for crimes also charged to have been committed during World War II. Demjanjuk was initially tried, convicted and sentenced to  death on the charges. However, he was later released on grounds that the evidence was insufficient to prove his guilt. Nevertheless, Israel based its claim for jurisdiction to try Demjanjuk on the principle of "universal jurisdiction."

Historical Precedents for Prosecution of War Criminals Apart from seeking to obtain domestic jurisdiction over international criminals through extradition (or skipping extradition and just  kidnapping them, as in the case of Israel's 1960s kidnapping of Eichmann or the U.S.'s 1990 kidnapping of Mexican national Humberto Alvarez-Machain, in a more recent case), the other main way of obtaining jurisdiction over defendants is through international ad hoc criminal tribunals established by the international community with specific bases of jurisdiction.

Prominent examples include, of course, the International Military Tribunal at Nuremberg, established by the Charter of London promulgated by the Allies in 1945 after World War II, and the International Military Tribunal for the Far East, established by U.S. military order in Tokyo, also following World War II.

Currently two special international tribunals are operating under U.N. auspices: the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda. The conflicts in both the former Yugoslavia and Rwanda are generally viewed to have been primarily internal conflicts, although they did take on international aspects.
In addition, the UN Security Council in August of 2000 approved the establishment of a special tribunal for Sierra Leone to prosecute crimes against humanity, war crimes and other serious violations of international humanitarian law. The conflict in Sierre Leone is also viewed as having been largely an internal conflict.

International criminal tribunals have also been proposed for the conflicts which occurred in East Timor, Cambodia and in Zaire (regarding treatment of Hutus). However, the required international political consensus necessary for the establishment of the proposed tribunals has not yet been achieved.

Notes:
(1) Israel is widely viewed as having practiced extra-judicial killings on a routine basis for as long as it has existed as a state. Prior to that, such extra-judicial killings of Palestinians (and persons of other nationalities) were carried out by Zionist para-military forces, the responsibility for whose actions Israel has inherited through the law of state responsibility. As a recent example of Israel's widespread practice of extra-judicial killing, Israeli officials were quoted in a series of articles written by Deborah Sontage for The New York Times following the outset of the al-Aqsa intifada as unapologetically acknowledging an official Israeli assassination campaign conducted against suspected Palestinians resistance fighters and political leaders.