International Criminal Justice

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JOURNAL OF

INTERNATIONAL CRIMINAL JUSTICE

ISSN 1478-1387 VOLUME 11, No. 4 September 2013

Editorial ARTICLES Contextualizing Actus Reus under Article 25(3)(d) of the ICC Statute: Thresholds of Contribution RANDLE C. DEFALCO Universal Jurisdiction as Janus-Faced: The Dual Nature of the German International Criminal Code MA¤XIMO LANGER Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo MARGHERITA MELILLO SYMPOSIUM

LAST JUDGMENT ç THE TAYLOR TRIAL JUDGMENT AND THE RESIDUAL FUTURE FOR SIERRA LEONE

OF THE

SPECIAL COURT

Foreword SIMON M. MEISENBERG and LAUREL BAIG Charles Taylor’s Criminal Responsibility KAI AMBOS and OUSMAN NJIKAM Deconstructing Terrorism as a War Crime: The Charles Taylor Case KIRSTEN M.F. KEITH The Taylor Sentencing Judgment: A Critical Analysis KEVIN JON HELLER The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunals FIDELMA DONLON NATIONAL PROSECUTION OF INTERNATIONAL CRIMES: LEGISLATION AND CASES Hamdan v. United States: A Death Knell for Military Commissions? JENNIFER DASKAL HIGHLIGHTS Current Developments at the Ad Hoc International Criminal Tribunals PATRICK W. HAYDEN and KATERINA I. KAPPOS BOOK REVIEWS Robert Donia, From the Republika Srpska Assembly 1991^1996: Excerpts from Delegates’ Speeches at the Republika Srpska Assembly as Body of Evidence for the International Criminal Tribunal at The Hague (GUIDO ACQUAVIVA) Ruti G. Teitel, Humanity’s Law (JAMIE ROWEN) Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (MEGUMI OCHI) Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement (BENOI“T MAYER) Leila Nadya Sadat (ed.), Forging a Convention for Crimes against Humanity (HILMI M. ZAWATI) Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (ROBERTA ARNOLD)

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JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE VOL 11, NO 4, september 2013

CONTENTS

ISSN 1478-1387

JOURnaL OF

Volume 11, No. 4 september 2013

International Criminal Justice

Founded by Antonio Cassese www.jicj.oxfordjournals.org

JOURNAL OF

INTERNATIONAL CRIMINAL JUSTICE Founding Editor Antonio Cassese

Board of Editors Nehal Bhuta (Florence), Andrew Clapham (Geneva), Robert Cryer (Birmingham), Paola Gaeta (Geneva), Florian Jessberger (Editor, Current Events; Hamburg), Jia Bing Bing (Beijing), Claus Kre (Cologne), O-Gon Kwon (The Hague), Fannie Lafontaine (Book Reviews Editor; Que¤bec City), Sandesh Sivakumaran (Nottingham), Harmen van der Wilt (Amsterdam), Salvatore Zappala' (Editor-in-chief; New York and Catania)

Executive Editor Urmila De¤ (Oxford)

Editorial Assistance Anhared Price (Geneva)

Advisory Board Mirjan Damaska (New Haven), George P. Fletcher (New York), Mordechai Kremnitzer (Jerusalem); Jaime Malamud-Goti (Buenos Aires), William Schabas (London), Franc oise Tulkens (Strasbourg), Thomas Weigend (Cologne), Gerhard Werle (Berlin)

Honorary Board of Advisors Georges Abi-Saab (Geneva), Jose¤ E. Alvarez (New York), Louise Arbour (Geneva), Robert Badinter (Paris), Rene¤ Blattmann (The Hague), Mohamed Bennouna (The Hague), Antonio Cancado Trindade (Brasilia), Mireille Delmas-Marty (Paris), John Dugard (Leiden), Pierre-Marie Dupuy (Paris and Geneva), David Hunt (Sydney), Philippe Kirsch (The Hague), Liu Daqun (The Hague), Howard Morrison (The Hague), Erik Mse (Arusha), Francisco Orrego Vicun‹a (Santiago), Hisashi Owada (The Hague), Fausto Pocar (The Hague), W. Michael Reisman (New Haven), Mohamed Shahabuddeen (The Hague), Bruno Simma (The Hague), John R. Spencer (Cambridge)

Editorial Committee Guido Acquaviva (Co-chair; The Hague) Laurel Baig (Co-chair; The Hague)

Members Ce¤cile Aptel (Geneva and Medford, MA), James L. Bischo¡ (Washington D.C.), Christoph Burchard (Tu«bingen), Salvatore Cannata (New York), James Cockayne (New York), Nancy Combs (Williamsburg, VA), John C. Dehn (West Point), Katherine Del Mar (Geneva), Mary D. Fan (Washington D.C.), Katherine Gallagher (New York), Mary Gardner (Cambridge, MA), Fergal Gaynor (The Hague), Julia Geneuss (Hamburg), Nicholas Leddy (New York), Stefano Manacorda (Naples), Gue¤nae«l Mettraux (The Hague), Richard V. Meyer (Jackson, MS), Volker Nerlich (Editor, National Legislation; The Hague), Tom Nijs (Brussels), Jonas Nilsson (The Hague), Jens D. Ohlin (Ithaca, NY), Giulia Pinzauti (The Hague), Valentina Spiga (Florence), James Stewart (Vancouver), Vanessa Thalmann (Geneva), Philippa Webb (London), Alex Whiting (The Hague), Marieke Wierda (New York) Web Site: www.jicj.oxfordjournals.org Email: [email protected] Journal of International Criminal Justice is covered by the following abstracting/indexing services: International Political Science Abstracts Westlaw The Geneva Academy of International Humanitarian Law and Human Rights is a joint endeavour of the Law Faculty of University of Geneva and the Graduate Institute of International and Development Studies, specializing in international law in armed con£ict. www.adh-geneva.ch

Information for Authors Submission of manuscripts The Journal of International Criminal Justice invites submission of manuscripts on International Criminal Law and Procedure, Comparative Criminal Law and Procedure, Criminology, and Penal Philosophy. Manuscripts should be accompanied by an assurance that the article has not been published, submitted, or accepted elsewhere. Authors are requested to submit their manuscript by electronic mail (Word attachment) to [email protected]; alternatively, a hard copy of the manuscript could be sent by post to the editorial o⁄ces, addressed to: Journal of International Criminal Justice c/o Geneva Academy of International Humanitarian Law and Human Rights Villa Moynier rue de Lausanne 120/B CP 67 1211 Geneva Switzerland

Length of manuscript Manuscripts submitted to the Journal should range from 3,000 to 10,000 words in length, including abstract and footnotes. In exceptional circumstances, the Journal will extend this limit to 15,000 words for Articles that make an important contribution to the ¢eld.

Format requirement All manuscripts should be double spaced with single spaced abstract and footnotes. Heavy footnoting is discouraged. Authors are invited to follow the Journal’s style-sheet, which may be obtained from the editorial o⁄ce upon request, or from the Journal’s web pages at http://www.oxfordjournals.org/our_journals/ jicjus/for_authors/stylesheet.pdf.

Consideration of manuscripts Receipt of all manuscripts will be acknowledged immediately, and after receiving comments from two to three referees, noti¢cation of acceptance, rejection or need for revision will be given within eight weeks of receipt of manuscript.

Book reviews The Journal publishes both short book reviews (500^600 words) and longer review essays (1,500^2,000 words). Quali¢ed individuals are invited to submit review essays and short reviews to the Journal. If you are interested in reviewing a title, please contact the Book Reviews Editor, Professor Fannie Lafontaine, and the assistant to the book reviews section, Ms Anhared Price, for a list of titles that are available for review, by writing to [email protected]. Potential reviewers are required to send their CV and a brief explanation of how their academic and/or professional background demonstrates the quali¢cations necessary to review a title in the ¢eld of international criminal law and justice. In addition, please provide the following information: name; institutional a⁄liation; language competency; and contact details. Doctoral and postdoctoral students are invited to submit proposals for short reviews. Preference is given to reviews of non-English language books and to reviews of newly published books. The Journal also considers review copies of books sent to us or suggestions for books to be reviewed. If you are interested in having a title reviewed, please contact the Book Reviews Editor or her assistant, with information about the title in question. Non-returnable review copies of books can be posted to: Book Reviews Section Journal of International Criminal Justice c/o Geneva Academy of International Humanitarian Law and Human Rights rue de Lausanne 120/B - CP 67 1211 Geneva Switzerland

JOURNAL OF

INTERNATIONAL CRIMINAL JUSTICE VOLUME 11, NO. 4 SEPTEMBER 2013

CONTENTS Editorial

713

Articles Contextualizing Actus Reus under Article 25(3)(d) of the ICC Statute: Thresholds of Contribution RANDLE C. DEFALCO

715

Universal Jurisdiction as Janus-Faced: The Dual Nature of the German International Criminal Code MA¤XIMO LANGER

737

Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo MARGHERITA MELILLO

763

Symposium Last Judgment ç The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone Foreword SIMON M. MEISENBERG and LAUREL BAIG 783 Charles Taylor’s Criminal Responsibility KAI AMBOS and OUSMAN NJIKAM

789

Deconstructing Terrorism as a War Crime: The Charles Taylor Case KIRSTEN M.F. KEITH

813

The Taylor Sentencing Judgment: A Critical Analysis KEVIN JON HELLER

835

The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunals FIDELMA DONLON

857

National Prosecution of International Crimes: Legislation and Cases Hamdan v. United States: A Death Knell for Military Commissions? JENNIFER DASKAL

875

Highlights Current Developments at the Ad Hoc International Criminal Tribunals PATRICK W. HAYDEN and KATERINA I. KAPPOS

899

Book Reviews Robert Donia, From the Republika Srpska Assembly 1991^1996: Excerpts from Delegates’ Speeches at the Republika Srpska Assembly as Body of Evidence for the International Criminal Tribunal at The Hague (GUIDO ACQUAVIVA) Ruti G. Teitel, Humanity’s Law (JAMIE ROWEN)

932

Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (M EGUMI OCHI)

933

Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement (BENOI“T MAYER)

936

Leila Nadya Sadat (ed.), Forging a Convention for Crimes against Humanity (HILMI M. ZAWATI)

937

Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (ROBERTA ARNOLD)

943

931

Book Reviews

3

See Art. 2, Proposed Convention on the International on the Prevention and Punishment of the Crime of Forcible Displacement, in ibid., at 178.

with international criminal law is interesting, but there is no obvious reason why this part of the argument should be circumscribed to a crime of forcible displacement. Overall, this book calls our attention to an important legal issue, but the suggested solutions may not satisfy all readers.

Beno|“ t Mayer PhD candidate, Faculty of Law, National University of Singapore [email protected] doi:10.1093/jicj/mqt053

Leila Nadya Sadat (ed.), Forging a Convention for Crimes against Humanity (Cambridge University Press, 2011) xxviii, 565 pp. $99 (Hardback) ISBN 978-0-52111648-0 Since the beginning of the Syrian civil war in March 2011,1 the international community, symbolized in the United Nations (UN) Security Council, has failed to condemn ç and still less prevent or stop ç the commission of crimes against humanity allegedly perpetrated by all war factions, chiefly by Syrian official forces, paramilitaries (shabbeehah), and Hezbollah troops, against Syrian civilians.2 1

2

A recent report indicates that the civil war in Syria has claimed 92,901 lives between March 2011 and the end of April 2013. See, M. Price et al., Updated Statistical Analysis of Documentation of Killings in the Syrian Arab Republic: Report Commissioned by the Office of the UN High Commissioner for Human Rights, Human Rights Data Analysis Group, 13 June 2013, at 2^3. Failure to confront war crimes and crimes against humanity committed by the Syrian regime with diplomatic negotiations is a black mark against the international community, which should be acting to stop mass atrocities rather than encouraging a culture of impunity. The international community should enforce the law under Chapter VII of the United Nations (UN) Charter to protect civilians and bring perpetrators to justice. See, Report of the Secretary-General, Sexual Violence in Conflict, UN Doc. A/67/792^S/2013/ 149, 14 March 2013; UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23

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blanket prohibition. For example, multilateral development banks, in particular, have developed complex regulations on development induced displacement and resettlement. In international criminal law, forcible displacement can be punished as an act of genocide and under the heading of either crimes against humanity or war crimes. At most, the authors highlight the risk of inconsistency in the construction of international criminal law by the jurisprudence of domestic courts and the insufficient deterrence of the International Criminal Court ç issues that can hardly be considered as specific to circumstances of forcible displacement. The authors do not question the political feasibility or the efficiency of the Proposed International Convention on the Prevention and Punishment of the Crime of Forcible Displacement. This instrument would criminalize any ‘removal of one or more persons to another location by expulsion or other coercive acts, from an area in which that person or those persons is/are lawfully present, without grounds permitted under international law’.3 This does not define what grounds are ‘permitted under international law’. The same expression is used in the Rome Statute’s definition of ‘deportation or forcible transfer of population’ as an element of a crime against humanity, however, it refers to clear cut and well recognized rules under international humanitarian law. By contrast, the circumstances in which ‘removal’ is allowed are sometimes blurry. The reader comes to wonder whether international criminal law should be extended to forcible displacements that do not constitute acts of genocide, crimes against humanity or war crimes. Addressing all human rights violations through international criminal law is a tempting yet, at times, dangerous solution. Unlike the Genocide Convention, the authors’ proposal does not extend to state responsibility. Yet, not all human rights violations can be conceived in terms of individual criminal liability: there might not be sufficient individual involvement or intent. The authors’ suggestion of a special procedure to review state compliance

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This laxity on the part of the UN Security Council is due to several factors, most importantly, failure of international political will and lack of interest on the part of the major players,3 on the one hand, and to the absence of a specialized international treaty that would make it an obligation for states parties to prevent and punish crimes against humanity, on the other.4 This latter shortcoming is the central objective of the timely work

4

5

6

7

8

L.N. Sadat (ed.), Forging a Convention for Crimes against Humanity (Cambridge University Press, 2011), at x. Ibid., at xx. See also, K. Ambos, ‘Crimes against Humanity and the International Criminal Court’, in Sadat (ed.), supra note 5, 279, at 279. Charter of the International Military Tribunal (IMT), Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), Annex, 8 August 1945 (hereinafter ‘IMT Charter’); Charter of the International Military Tribunal of the Far East, 19 January 1946. In contrast to the definition of crimes against humanity, incorporated in Art. 7 ICCSt., and reproduced verbatim in Art. 3 Proposed International Convention on the Prevention and Punishment of Crimes against Humanity, which states that such crimes must be ‘committed as part of a widespread or systematic attack directed against any civilian population’, Islamic criminal law provides that whoever kills anyone unjustly ç no matter whether as an individual or in large scale attacks ç or perpetuates mischief on the earth, including rape, highway robbery, corruption, damages to the property of others, including the cutting trees and killing domestic animals, it is as if that person had slain mankind entirely. And whoever saves a life from unlawful killing is as if he had saved the mankind entirely. See A. al-Qadir ‘Awdah, al-Tashr| ‘ al-Jina ’| al-Isla m| [Islamic Criminal Legislation], Vol.1 (Mu’assasat al-Risalah, 2001), at 120; A. FatA| Bahnas| , al-‘Uqubah f| al-Fiqh al-Islam| [Punishment in the Islamic Jurisprudence] (Dar al-Shuruq, 1980), at 27; The Holy Qur’an, Chapter 5, Verse 32.


3

November 2011; UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/22/59, 5 February 2013; UN Human Rights Council, Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/22/ CRP1, 11 March 2013; UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/23/58, 4 June 2013; UN Security Council Press Release, ‘Security Council Fails to Adopt Draft Resolution Condemning Syria’s Crackdown on Anti-Government Protestors, Owing to Veto by Russian Federation and China’, UN Doc. SC/10403, 4 October 2011. Since the outbreak of the violence in Syria, two countries ç Russia and China ç have vetoed three UN Security Council resolutions on Syria, preventing several attempts by the UN Security Council to take a decision that might have put a stop to the war crimes and crimes against humanity perpetrated against Syrian civilians mainly by state agents. On the role of the international community during the Rwandan genocide, see H.M. Zawati, The Triumph of Ethnic Hatred and the Failure of International Political Will: Gendered Violence and Genocide in the Former Yugoslavia and Rwanda (Edwin Mellen Press, 2010), at 228; L. Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (Zed Books, 2000), at 195; W. Ferroggiaro (ed.), ‘Evidence of Inaction’, The National Security Archive, 20 August 2001, available online at http://www.gwu.edu/nsarchiv/ NSAEBB/NSAEBB53/ press.html (visited 30 November 2012), at 3. A. Peters, ‘The Security Council’s Responsibility to Protect’, 8 International Organizations Law Review (2011) 1, at 7; G. Evans and M. Sahnoun, ‘The Responsibility to Protect’, 81 Foreign Affairs (2002), at 103; M.W. Doyle, ‘International Ethics and the Responsibility to Protect’, 13 International Studies Review (2011) 72, at 77.

reviewed here, edited by Leila Nadya Sadat, Professor of Law at Washington University.5 Before examining this work, it is worth noting that crimes against humanity ‘whatever their uncertain origin’,6 have never been clearly addressed in any international law instrument prior to the codification of the charters of the intergovernmental military tribunals at Nuremberg and Tokyo in 1945 and 1946, respectively.7 Arguably, it is Islamic law that has referred to crimes against mankind ç in the true sense of the term ç and punished them during the 1400 years that preceded the establishment of the above tribunals.8 It is good to bear these facts in mind when considering the importance of the work under review.

Book Reviews

9 10 11 12 13

Sadat, supra note 5, at xxiii^xxiv. Ibid., at xxiv. Ibid. Art. 6 IMT Charter. Sadat, supra note 5, at xvi.

of the absence of an international convention on crimes against humanity and because the jurisdiction of the ICJ was limited to genocide, the Court has failed to recognize other crimes that could be categorized under the missing convention.14 In her introduction, Sadat outlines the several goals of the Crimes against Humanity Initiative,15 the most important one being to address the gap in international humanitarian law and international criminal law by developing the first ever comprehensive and specialized treaty on crimes against humanity.16 In the first chapter, Roger Clark critically examines the history of efforts to codify crimes against humanity over a period of more than 50 years, that is, from the Charter of the IMT to the Rome Statute.17 Clark’s introductory chapter sets the stage for the following ones. He asserts that, despite efforts made during the past decades to codify and recodify crimes against humanity, this process seems to be forever open to revision.18 Payam Akhavan’s timely article on the need for a treaty based obligation to prosecute crimes against humanity before national courts exercising universal jurisdiction, underlines the pressing need to adopt the Proposed Convention and have it enter into force.19 Akhavan maintains that the adoption of the latter will adequately address significant loopholes in international criminal law, eradicate the widespread culture of impunity, and bring perpetrators to justice.20 This claim is also emphasized in the following chapter by M. Cherif Bassiouni, who argues

14 International Court of Justice, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment of 11 July 1996. 15 Sadat, supra note 5, at xxiii^xxiv. 16 Ibid. 17 R.S. Clark, ‘History of Efforts to Codify Crimes against Humanity: From the Charter of Nuremberg to the Statute of Rome’, in Sadat, supra note 5, 8, at 8. 18 Ibid., at 27. 19 P. Akhavan, ‘The Universal Repression of Crimes against Humanity before National Jurisdictions: The Need for a Treaty-Based Obligation to Prosecute’, in Sadat, supra note 5, 28, at 28. 20 Ibid., at 29, 40^41.


Forging a Convention for Crimes against Humanity includes the text of the Proposed International Convention on the Prevention and Punishment of Crimes against Humanity (Proposed Convention), an account of the historical development of the Proposed Convention, and 15 articles by leading experts in international criminal law. The papers were initially presented and discussed at a conference held at the Washington University School of Law on 13 and 14 April 2009. They range in focus from technical discussions of specific legal issues to analyses of earlier codifications and definitions of crimes against humanity in the Rome Statute of the International Criminal Court (ICC) and in the statutory laws of the ad hoc tribunals, always taking into account their broader social and historical context.9 Having said this, it is too difficult to classify the 15 papers thematically.10 The reviewed work is the culmination of an extraordinary project known as the Crimes against Humanity Initiative, launched in 2008 by the Whitney R. Harris World Law Institute.11 The aim of the project is to compensate for the absence of an international treaty dealing with crimes against humanity ç one of three types of crimes embodied in the Charter of the International Military Tribunal (IMT) and never set down in a comprehensive international instrument.12 As Richard Goldstone notes in his foreword to this volume, other categories of crimes, namely, genocide and war crimes, have been covered by the Genocide Convention and the Geneva Conventions with their Additional Protocols, respectively. Against this background, the lack of an international convention on crimes against humanity has negative implications for the jurisprudence of international judicial bodies, which in turn encourages a culture of impunity and leads to inconsistent prosecutions and verdicts. A case in point is the failure of the International Court of Justice (ICJ) to recognize crimes against humanity perpetrated by Bosnian Serb troops against Bosnian Muslims during the armed conflicts of the early 1990s. As Goldstone explains,13 in light

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21 M.C. Bassiouni, ‘Revisiting the Architecture of Crimes against Humanity: Almost a Century in the Making with Gaps and Ambiguities Remaining: The Need for a Specialized Convention’, in Sadat, supra note 5, 43, at 58. 22 V. Oosterveld, ‘Gender-Based Crimes against Humanity’, in Sadat, supra note 5, 78, at 78. 23 Ibid., at 101. 24 Art. 3(1)(g), (2)(f), Proposed International Convention on the Prevention and Punishment of Crimes against Humanity, in Sadat, supra note 5 (hereinafter ‘Proposed Convention’). 25 G. Sluiter, ‘‘‘Chapeau Elements’’ of Crimes against Humanity in the Jurisprudence of the UN Ad Hoc Tribunals’, in Sadat, supra note 5, 102, at 102. 26 G. Mettraux, ‘The Definition of Crimes against Humanity and the Question of a ‘‘Policy’’ Element’, in Sadat, supra note 5, 142, at 142.

the lack of a convincing legislative framework, for example, different and conflicting definitions.27 For his part, Mettraux tries to answer the long debated question whether the definition of crimes against humanity should include an element of policy. An examination of the laws and jurisprudence of the international criminal tribunals reveals that international law does not require an additional element of policy to demonstrate the conduct of the accused.28 In his contribution, David Crane studies the politics of prosecuting such crimes and its impact on the judicial process.29 He tries to answer a number of questions including can one have true peace without justice? And, is it appropriate to grant amnesty to warlords in order to make a secure transition from conflict to peace?30 John Hagan and Todd Haugh for their part examine the meaning of ethnic cleansing as euphemism, metaphor, and a prosecutable crime.31 They argue that establishing the crime of ethnic cleansing may uniquely involve a combination of social scientific criminological and legal evidence.32 The following chapters by Diane Orentlicher, Michael Scharf, and Michael Newton underline two important issues relevant to the Proposed Convention: immunities and amnesties, and terrorism and crimes against humanity. Orentlicher addresses two interrelated issues. The first is the question of establishing responsibility for crimes against humanity committed by persons enjoying official or personal immunity and the second is how to deal with issues relating to amnesties for such crimes.33 In their study, Scharf and Newton argue that there is no need to create a new, specific offence of terrorism under the Proposed Convention, claiming that terrorist 27 Sluiter, supra note 25, at 138. 28 Mettraux, supra note 26, at 175. 29 D. Crane, ‘The Bright Red Thread: The Politics of International Criminal Law ç Do We Want Peace or Justice? The West African Experience’, in Sadat, supra note 5, 59, at 67. 30 Ibid., at 60. 31 J. Hagan and T. Haugh, ‘Ethnic Cleansing as Euphemism, Metaphor, Criminology, and Law’, in Sadat, supra note 5, 177, at 181. 32 Ibid., at 201. 33 D. Orentlicher, ‘Immunities and Amnesties’, in Sadat, supra note 5, 202, at 203.


that the need for the Proposed Convention is both essential and urgent.21 Valerie Oosterveld offers another perspective by examining the meaning of gender in the context of gender-based crimes against humanity.22 She explores the legal development of gender-based crimes, namely, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence, in international criminal law, and particularly in the statutory laws and jurisprudence of post Second World War international criminal tribunals and courts. Oosterveld raises a number of critical questions relating to the definition and elements of different gender-based crimes ç questions that need to be answered by the drafters of any treaty on crimes against humanity.23 However, none of these questions have yet been considered by the drafters of the Proposed Convention, whose list of crimes was copied verbatim from the Rome Statute.24 Next, the chapeau elements of crimes against humanity,25 and the question of a policy element for defining these crimes,26 are both extensively analysed in two consecutive chapters by Go«ran Sluiter and Gue¤nae«l Mettraux. After a critical examination of the case law of the ad hoc tribunals on the chapeau elements of crimes against humanity, Sluiter notes that it would be difficult to draw positive conclusions from the treatment and development of these elements in the jurisprudence of the above judicial bodies, despite the fact that some of the shortcomings are due to

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against humanity, Olson suggests several enforcement measures and forms of cooperation between states parties, including through the principle of aut dedere aut judicare, embodied in Article 9 of the Proposed Convention,40 and encouraging interstate cooperation in criminal matters under Article 8.41 Finally, Stanton investigates the world’s sine qua non for a specialized international convention on crimes against humanity.42 He argues that such convention would extend the reach of the rule of law to encompass crimes against humanity beyond the ICC regime, encourage interstate cooperation and facilitate the extradition of convicted persons.43 A close examination of the Proposed Convention shows that it incorporates several articles that would enhance justice, particularly Articles 8, 9, and 10. Article 8 requires states parties to incorporate crimes against humanity in their domestic criminal codes. At the same time, it would force them under the legal principle ç aut dedere aut judicare to either extradite or prosecute perpetrators of crimes against humanity. Simultaneously, discussing the jurisdiction of state parties, Article 10 demands that the latter ‘take the necessary measures to establish its competence to exercise jurisdiction over persons alleged to be responsible for crimes against humanity’.44 It is worth noting that the explanatory notes annexed to each article of the Proposed Convention are helpful and important. Nonetheless, despite the outstanding level of the contents of the reviewed work ç including the book chapters and the provisions of the Proposed Convention ç there are a number of tangible problems. The most important one is that the steering committee has agreed from the beginning that the norms of the Proposed Convention should not contradict the provisions of the Rome Statute, particularly in its enumeration of crimes against humanity,

34 M.P. Scharf and M.A. Newton, ‘Terrorism and Crimes against Humanity’, in Sadat, supra note 5, 262, at 278. 35 Ibid. 36 E. van Sliedregt, ‘Modes of Responsibility’, in Sadat, supra note 5, 223, at 261. 37 Ibid. 38 D. Scheffer, ‘Crimes against Humanity and the Responsibility to Protect’, in Sadat, supra note 5, 305, at 307. 39 Ibid., at 319.

40 L.M. Olson, ‘Re-enforcing Enforcement in a Specialized Convention on Crimes against Humanity: Inter-State Cooperation, Mutual Legal Assistance, and the Aut Dedere Aut Judicare Obligation’, in Sadat, supra note 5, 323, at 324. 41 Ibid., at 329. 42 G.H. Stanton, ‘Why the World Needs an International Convention on Crimes against Humanity’, in Sadat, supra note 5, 345, at 356. 43 Ibid., at 357. 44 Art. 10(2) Proposed Convention.


acts are prosecuted under the laws of war and as crimes against humanity embodied in the provisions of the statutory laws of international criminal courts and tribunals.34 They maintain that acts of systematic kidnapping by a terrorist group, for example, could be qualified by the court as an other inhuman acts (a type of crimes against humanity), thereby exempting the drafters of the Proposed Convention from the burden of addressing the problematic definitional question of the crime of terrorism. The authors add that the creation of a specific crime of terrorism under crimes against humanity would introduce a state of uncertainty and politicization in the existing legal structure.35 However, by subsuming the crime of terrorism under other inhuman acts would leave much room to the judges’ discretion, thus creating the risk that they will choose a narrow and regressive understanding of the law. The remaining chapters by Elies van Sliedregt, David Scheffer, Laura Olson, and Gregory Stanton provide thorough analyses and examine a number of criminal law principles in the light of the Proposed Convention, including criminal liability, responsibility to protect (R2P), and aut dedere aut judicare. Considering traditional and specific modes of liability, van Sliedregt finds it unnecessary to regulate criminal responsibility in an international treaty chiefly intended to require states parties to establish jurisdiction over crimes against humanity,36 claiming that traditional forms of liability are already part of most worldwide domestic legal systems, and incorporated in Articles 25 and 28 of the Rome Statute.37 Scheffer, for his part, examines the meaning and extent of R2P in the norms of international law,38 and suggests a method for incorporating the principle into the provisions of the Proposed Convention.39 Furthermore, to combat impunity for crimes

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45 Sadat, supra note 5, at xvii. 46 Sadat has indicated in an earlier work that defining crimes within the court’s jurisdiction was one of the greatest challenges that the drafters encountered in Rome Conference. See L. Sadat Wexler,‘A First Look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court’, in M.C. Bassiouni (ed.), International Criminal Law: Enforcement, Vol. 3 (Transnational Publishers, 1999) 655, at 659. See also, W. Schabas, An Introduction to the International Criminal Court (Cambridge University Press,2007), at17. 47 A. Ashworth, Principles of Criminal Law (6th edn., Oxford University Press, 2009), at 78; H.M. Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals (Oxford University Press, Forthcoming, 2013), at 38. During the St-Louis Experts’ Meeting, held at the Washington University School of Law between 13 to 15 April 2009, Kelly Dawn Askin submitted a ‘wish list’ of gender-based crimes that were not listed among those embodied in Art. 7, ICCSt. Askin, who was responding to Oosterveld’s above mentioned paper, argued that a wider articulation of sexual and gender-based crimes in the Proposed Convention would assist in future prosecutions. She added that the categorization of crimes affects reparations, deterrence and protection of victims. An email message from Valerie

Surprisingly, Sadat overlooked this ambiguity and abstractness of crimes against humanity, although she had criticized drafters of the statutory laws of the ad hoc tribunals for not providing a clear cut definition of the same crimes. She asserts that the failure of the international community to prevent the commission of mass atrocities or to adequately address such crimes is manifested in the provisions of the statutory laws of the ad hoc tribunals, which contain different and contradictory definitions of crimes against humanity.48 She also notes that Bassiouni underlined this problem in an earlier article from 1994,49 which was written and published during the time that he headed the UN Security Council’s Commission to Investigate War Crimes in the Former Yugoslavia and oversaw its 3,300 pages report, with annexes.50 Sluiter acknowledges in his chapter that the issue of conflicting definitions of crimes against humanity in the statutory laws of the ad hoc tribunals ‘was a legislative nightmare, requiring enormous creativity on the part of the judges’.51 He wonders: ‘If the international community did not display a firm understanding of the content of this crime, how can judges be expected to do so?’52 The drafters of the Proposed Convention also, as Kai Ambos outlines,53 were determined not to include an article giving a clear definition of the mental element required for crimes against humanity. Not including such an article in the Proposed Convention may give a green light to actors in the criminal justice system, particularly in domestic courts, to interpret the norms of the Proposed Convention in a way that would compromise the rights of both victims and defendants, lead to unfair trials and inconsistent indictments and

48 49

50

51 52 53

Oosterveld, received on 6 October 2009 (on file with the author). Sadat, supra note 5, at xxii. M.C. Bassiouni, ‘Crimes against Humanity: The Need for a Specialized Convention’, 31 Columbia Journal for Transitional Law (1994) 457. UN Security Council, Final Report of the Commission of Experts Established Pursuant to Security Resolution 780 (1992), UN Doc. S/1994/ 674, 27 May 1994. Sluiter, supra note 25, at 139. Ibid. Ambos, supra note 6, at 293^294.


which are identical to those listed in the latter.45 By doing so, the drafters of the Proposed Convention have fallen into the same error committed by the drafters of the Rome Statute themselves, who utterly failed to classify, define, and label these crimes completely,46 thereby infringing the principle of fair labelling and paving the way for inconsistent verdicts. As a legal principle applicable to the legislator, fair labelling requires that crimes be separated from one another, categorized, described, and labelled in order to reflect their degree of wrongfulness and relative gravity. In other words, the description of an offence should match both the wrong done and the moral blameworthiness of the offender. Accordingly, specifying the names of crimes in the Rome Statute of the ICC without providing a clear technical definition and label for each of them within the norms of the Rome Statute may undermine the judicial process.47

Book Reviews

Hilmi M. Zawati International Legal Advocacy Forum [email protected] doi:10.1093/jicj/mqt054

Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (T.M.C. Asser Press, 2010) 256 pp. E63.25 (Hardback) ISBN 978-90-6704-327-4

1. Introduction Command responsibility is one of those fascinating doctrines that, notwithstanding a long tradition, still have a controversial nature and scope. Maria Nybondas’ publication is therefore timely and it is with great interest that I ventured into its reading. My expectations were not disappointed. Nybondas managed to address the key issues in a systematic, synthetic and critical fashion, showing her intent to grasp the essence of the doctrine in order to facilitate its correct and fair application, while keeping the attention of the reader constantly alive. In doing so, the author did not limit herself to an examination from the legal perspective ç the social, philosophical and moral components were also considered. This book review will discuss some of the conclusions reached by Nybondas, in an imaginary follow up conversation to one initiated

almost a decade ago with her at the T.M.C. Asser Institute, and with the aim of engaging other scholars and practitioners in further discussion. After this brief introduction, the second part will highlight the different issues addressed in the book and the final part will reach conclusions.

2. The Position of Maria Nybondas A. The Importance of Being Acquainted with the Military System One of Nybondas’ merits is her approach ç she tries to wear military boots to better understand a doctrine deeply rooted in military law and in the concept of responsible command, thereby rendering her work credible. She does so by, for example, exchanging her views with Major General Patrick C. Cammaert and Colonel Richard van Harskamp, two high-ranking Dutch officers. This is to be appreciated, since the trend shows an increasing number of human rights lawyers dealing with command responsibility, while lacking any knowledge, or even the willingness to acquire any, of the military background to this doctrine. A proper understanding, however, is necessary for a fair assessment of those who are called to respond on its basis. Nybondas further considers the context in which this doctrine applies, reflecting also on the skills required for commanders, or the special relationship that may exist between them and their subordinates. As she points out, ‘a good commander is not guided solely by necessity or by pragmatic and functional considerations. ::: there are professional values, moral values or as some may say, the remnants of the knightly ethos, that should influence the behaviour of the commander’.1 Moreover, the way he communicates, his personality and charisma will influence the decision of the subordinate/soldier and the whole command

1 54 Art. 8(5), Proposed Convention. 55 Art. 8(11), Proposed Convention.

M.L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (T.M.C. Asser Press, 2010), at 57^58.


judgments. Another issue is that the drafters of the Proposed Convention neglected to include provisions securing the rights of defendants parallel to the rights of victims,54 and witnesses55 ç a factor which is essential to ensuring a fair trial. In closing, this is an outstanding and thought provoking work that will be an essential reference to academics, legal scholars, practitioners, human rights advocates and those who are engaged in the study and promotion of international criminal law. For international criminal law scholars especially, it will continue to be an essential tool for years to come.

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INTERNATIONAL CRIMINAL JUSTICE

ISSN 1478-1387 VOLUME 11, No. 4 September 2013

Editorial ARTICLES Contextualizing Actus Reus under Article 25(3)(d) of the ICC Statute: Thresholds of Contribution RANDLE C. DEFALCO Universal Jurisdiction as Janus-Faced: The Dual Nature of the German International Criminal Code MA¤XIMO LANGER Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo MARGHERITA MELILLO SYMPOSIUM

LAST JUDGMENT ç THE TAYLOR TRIAL JUDGMENT AND THE RESIDUAL FUTURE FOR SIERRA LEONE

OF THE

SPECIAL COURT

Foreword SIMON M. MEISENBERG and LAUREL BAIG Charles Taylor’s Criminal Responsibility KAI AMBOS and OUSMAN NJIKAM Deconstructing Terrorism as a War Crime: The Charles Taylor Case KIRSTEN M.F. KEITH The Taylor Sentencing Judgment: A Critical Analysis KEVIN JON HELLER The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunals FIDELMA DONLON NATIONAL PROSECUTION OF INTERNATIONAL CRIMES: LEGISLATION AND CASES Hamdan v. United States: A Death Knell for Military Commissions? JENNIFER DASKAL HIGHLIGHTS Current Developments at the Ad Hoc International Criminal Tribunals PATRICK W. HAYDEN and KATERINA I. KAPPOS BOOK REVIEWS Robert Donia, From the Republika Srpska Assembly 1991^1996: Excerpts from Delegates’ Speeches at the Republika Srpska Assembly as Body of Evidence for the International Criminal Tribunal at The Hague (GUIDO ACQUAVIVA) Ruti G. Teitel, Humanity’s Law (JAMIE ROWEN) Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (MEGUMI OCHI) Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement (BENOI“T MAYER) Leila Nadya Sadat (ed.), Forging a Convention for Crimes against Humanity (HILMI M. ZAWATI) Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (ROBERTA ARNOLD)

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JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE VOL 11, NO 4, september 2013

CONTENTS

ISSN 1478-1387

JOURnaL OF

Volume 11, No. 4 september 2013

International Criminal Justice

Founded by Antonio Cassese www.jicj.oxfordjournals.org