The most effective court for the prosecution of war
crimes committed in Syria
Internationalized domestic jurisdiction in foreign courts prevailing over international prosecution methods
Abstract
This thesis has the purpose to find the most effective prosecution method for war crimes committed in the conflict in Syria. After defining a war crime as a serious violation of international humanitarian law, that is criminalized by either treaty or customary international law and qualifying the conflict in Syria as multiple NIACs and one IAC, it compares the effectiveness of four prosecution methods. The methods are the International Criminal Court, ad hoc tribunals, Special Judicial Bodies (also hybrid or mixed courts) and domestic courts. The prosecution methods are first compared in general, based on three criteria of effectiveness: (i) the jurisdictional reach of the court; (ii) the willingness of States to cooperate with the court, including the willingness establish a court and the willingness to exercise domestic jurisdiction; and (iii) the practical feasibility of the court.
It goes on to assess what the most effective method is for the prosecution of war crimes in Syria. The outcome is that the domestic methods are with regard to Syria the only effective methods. This mainly because the international methods either require cooperation from the Syrian regime or the UNSC in order to function for this conflict. This is not possible since the Syrian regime is currently uncooperative with regard to the prosecution of war crimes and the UNSC is in a deadlock due to the veto power of Russia and China.
The domestic prosecution in foreign courts is for Syria the best option, however it is imperfect. It can be improved by instating an international agency under the UN coordinating the exercising of domestic jurisdiction for Syrian war criminals on a global basis. It would then be internationalized domestic jurisdiction.
Thesis
International and European law: Public International law Marly Buwalda
Supervised by prof. dr. Kevin Jon Heller 16.361 words
Table of Contents
Abstract...2
List of Abbreviations...4
Index of authorities...5
Tables of Cases...5
Table of Treaties, Conventions, Statutes and other legislation...5
Introduction...6
Chapter 1: War crimes under international law and the conflict(s) in Syria...8
1.1 Introduction...8
1.2 The definition of a war crime...8
1.3 Armed Conflict...9
1.3.1 Qualification of armed conflict in Syria...10
1.4 Conclusion...11
Chapter 2: Available international and domestic prosecution methods: a general assessment of effectiveness...12
2.1 Introduction...12
2.2 Effective prosecution of war crimes defined...12
2.3 Available international prosecution methods...14
2.4 Assessment the effectiveness and fairness of international prosecution methods. .16 2.4.1 Effectiveness assessment of the ICC...16
2.4.1.A Jurisdiction...16
2.4.1.B Willingness to cooperate...17
2.4.1.C Feasibility...20
2.4.2 Effectiveness assessment of Ad Hoc tribunals and Special Judicial Bodies...21
2.4.2.A Jurisdiction...21
2.4.2.B Willingness to establish and cooperate...22
2.4.2.C Feasibility...24
2.5 Methods of domestic prosecution...25
2.6 Effectiveness assessment of domestic jurisdiction based on territory or nationality of the perpetrator...27
2.6.1 Jurisdiction...27
2.6.2 Willingness of States to cooperate...28
2.6.3 Feasibility...29
2.7 Effectiveness assessment of universal jurisdiction...30
2.7.1 Jurisdiction...30
2.7.2 Willingness to exercise universal jurisdiction in own courts and to cooperate with other States’ domestic courts...31
2.7.3 Feasibility...33
Chapter 3: Most effective prosecution method for Syria: internationally regulated
domestic prosecution...35
3.1 Introduction...35
3.2 Assessment specific for Syria...35
3.2.1 Jurisdiction of the courts...35
3.2.2 Willingness of States to cooperate with the court...36
3.2.3 Feasibility...39
3.3 The best option: internationalized domestic prosecution in foreign courts...40
3.3.1 Global network...41
3.3.2 Database...41
3.3.3 Funding program and coordination...42
3.4 Conclusion...42
Conclusion...43
Bibliography...45
List of Abbreviations
AP I Additional Protocol I to the Geneva Conventions AP II Additional Protocol II to the Geneva Conventions
GC Geneva Convention
IAC International Armed Conflict ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTR United Nations International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law
ILC International Law Committee NGO Non-governmental organization NIAC Non-International Armed Conflict SCSL Special Court for Sierra Leone
OAG Organized Armed Group
PICJ Permanent Court of International Justice
UN United Nations
UNGA United Nations General Assembly UNSC United Nations Security Council US Unites States of America
Index of authorities Tables of cases
Akayesu, Prosecutor v Akayesu (Judgment) ICTR-96–4-A (1 June 2001)
Delalić, Prosecutor v Delalić et al (Appeal Judgment) IT-96–21-A (20 February 2001) Eichmann, Prosecutor v Eichmann (Judgement) Distr. Crt of Jerusalem No. 40/61 (11 December 1961)
Nicaragua, Nicaragua v United States of America (Merits) ICJ Rep 14 (27 June 1986) Tadic, Prosecutor v Tadic (Decision) ICTY IT-94-1-AR72 (2 October 1995)
SS ‘Lotus’, France v Turkey, (Judgement) PCIJ Series A, No 10 (7 September 1927)
Table of Treaties, Conventions, Statutes and other legislation
Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993, as amended on 7 July 2009)
Statute of the International Criminal Tribunal for Rwanda (adopted 8 November 1994, as amended on 13 October 2006)
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 31
Convention (II) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 85
Convention (III) Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 135
Convention (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 287
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I) (adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 3
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) (adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 609
Charter of the United Nations (adopted 26 June 1945, entry into force 24 October 1945) 1 UNTS XVI
Rome Statute of the International Criminal Court (last amended 2010), (adopted on 17 July 1998, entry into force 1 July 2002) ISBN No. 92-9227-227-6
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entry into force 12 January 1951) 78 UNTS 277
Constitution of the Syrian Arab Republic (issued 15 February 2012, approved 26 February 2012)
Introduction
‘Believe me, the terrible crimes committed in Syria I neither saw in Rwanda nor ex-Yugoslavia. We thought the international community had learned from Rwanda. But no, it learned nothing.’ This is what Carla de Ponte said about the conflict in Syria when she quitted the UN commission mandated to investigate human rights abuses there. She stated she was frustrated by the commission’s inability to effectively prosecute persons for committing war crimes in Syria.1
The conflict in Syria is a complicated one. There are many different parties involved, armed groups, foreign states, governmental forces and many civilians. War crimes have allegedly been committed by members of all these groups and so far for the most part with impunity. About World War II Chevigny said, it often seemed that the worst criminals were the most likely to escape justice.2 This is what can and should be prevented from happening in Syria.
Suspects of Syrian war criminals could potentially be prosecuted before four different types of courts, the International Criminal Court, an ad hoc tribunal, a Special Judicial Body (or hybrid or mixed court) and a domestic court.
The question is which one of these courts is the most effective. This based on three criteria for effective prosecution for war crimes: (i) the jurisdictional reach of the court; (ii) the willingness of States to cooperate with (and sometimes establish) the court; and (iii) the practical feasibility of the court. The answer is that the most effective courts for Syria are foreign domestic courts. The international prosecution methods are ineffective with regard to the Syrian conflict due to the lack of cooperation for it in the UNSC and in the Syrian regime. Domestic prosecution does not need cooperation from Syria of the UNSC.
Domestic courts in Syria are currently and in the foreseeable future not capable of prosecuting war criminals on a large scale. Foreign domestic courts are, and can exercise either jurisdiction over their nationals or exercise universal jurisdiction. A new organ in the UN can coordinate the prosecution in the domestic courts.
1 Bethan McKernan, ‘War crimes prosecutor quits UN panel on Syrian civil war because it's ‘pointless', the Independent (London, 8 August 2017) < https://www.independent.co.uk/news/world/middle-east/un-syria-civil-war-panel-war-crimes-prosecutor-quits-pointless-carla-del-ponte-swiss-attorney-a7882711.html> accessed 12 February 2019
2 Paul Chevigny, ‘The Limitation of Universal Jurisdiction’, Global Policy Forum (March 2006) <https://www.globalpolicy.org/component/content/article/97/32133.html> accessed 12 February 2019
The organ will be charged with (i) creating a global network widespread network of domestic courts that can prosecute war crimes; (ii) creating a global database in which the suspects of war crimes are connected to alleged war crimes; (iii) setting up a fund domestic courts may use during prosecution. There is no rule of law without effective enforcement of the law.3
After eight years of conflict it is time to bring back the rule of law to Syria.
This thesis is written from an internal perspective. It investigates the current law on the matter placing it in the perspective of the Syrian conflict, thus using the ‘law in action’ method. I have written it is based on a normative delineation that I made, inspired by other legal authors.
Having volunteered with Syrian refugees from Aleppo, including young children, I genuinely want to see the war crimes in Syria being prosecuted. Hoping to be able to add something I chose this subject.
Chapter 1: War crimes under international law and the conflict(s) in Syria
1.1 Introduction
When courts have jurisdiction ratione materiae over ‘war crimes’ it is often not codified what this exactly entails. While the concept ‘war crime’ is not a new or modern day concept, Peter von Hagenbach was convicted for crimes against the laws of God and men in 1474,4there is no document that lists all war crimes that can be committed. Before going into how to prosecute war crimes I will in this chapter explain what qualifies as a war crime under international law. War crimes are serious violations of international humanitarian law (hereinafter IHL) that have been criminalized by a treaty or by customary international law. War crimes can only be committed by natural persons during an armed conflict, either international or non-international. The IHL that applies on the two types of armed conflict differs and therefore the war crimes that can be committed differ. The definition of a war crime is furthermore dependent on the type of court. In this chapter I will elaborate on these definitions.
1.2 The definition of a war crime
War crimes are defined as serious violations of the rules of IHL that have been criminalized by either treaties or customary international law.5 This definition was first given by the
Appeals Chamber of the ICTY in the Tadić case.6 The definition can be split in two main
elements: (i) a ‘serious’ violation of IHL and (ii) the violation must have been criminalized by treaty or customary international law. A ‘serious’ violation withholds that the violated rule must be part of the important values of IHL and that the conduct must have endangered protected persons or objects.7 Criminalisation of the violation withholds that there must be a
secondary rule, in either custom or treaty, that criminalizes the ‘serious’ violation of IHL.8
There is no document or treaty that criminalizes all war crimes. War crimes are mainly defined by customary international law and jurisprudence.9 Additionally most war crimes are
4 Schwarzenberger 1968, 465 5 MPEPIL 2014
6 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993, as amended by 7 July 2009) as established by resolution 808/1993, as amended by resolution 1877/2009
(hereinafter ICTY Statute), article 3 jo. Tadic Case (Decision) ICTY IT-94-1-AR72 (2 October 1995) §94 7 ICRC, ‘Rule 156. Definition of War Crimes’ Database Customary IHL
<https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156> accessed 12 February 2019 8 MPEPIL 2014; Shaw 2014, 312
codified in the Geneva Conventions, as ‘grave breaches’ entailing individual responsibility,10
and in the Rome Statute.11
It is important to note that only natural persons can commit war crimes. This means that States, international organizations and legal persons are excluded from being perpetrators of war crimes. Natural persons in an armed conflict can be employees in a State army, members of an armed group or regular civilians. With regard to the last group, civilians, there is no consensus in literature as to whether or not they can be held responsible for war crimes.12 It is
the more dominant line in international law that such is possible13 and this is also the ICTY’s14
and the Appeals chamber of the ICTR’s view.15
There is no doubt that war crimes have been committed in Syria and war criminals have already been convicted.16 The conflict is being monitored by multiple organizations collecting
evidence and identifying suspects.17 The perpetrators of war crimes can be found amongst all
that are active in the conflict in Syria18, members of governmental forces, members of OAG’s
and civilians.19
1.3 Armed Conflict
War crimes can only be committed during an armed conflict. An armed conflict can either be international or non-international.20 An international armed conflict (hereinafter IAC) can be
defined as any dispute involving two or more States and in which there is a resort to armed force between the states.21 It also includes total and partial occupation of another State’s
10 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 31, Article 50; Convention (II) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 85, art. 51; Convention (III) Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 135, art. 130; Convention (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 287, art. 147
11 MPEPIL 2014 12 MPEPIL 2014 13 MPEPIL 2014
14 Prosecutor v Delalić et al (Appeal Judgment) IT-96–21-A (20 February 2001) §325 15 Prosecutor v Akayesu (Judgment) ICTR-96–4-A (1 June 2001) §443
16 Human Rights Watch, ‘These are the Crimes we are Fleeing’, (3 October 2017)
< https://www.hrw.org/report/2017/10/03/these-are-crimes-we-are-fleeing/justice-syria-swedish-and-german-courts> accessed 12 February 2019
17 supra note 1 18 Ibid
19 Gill 2016, 354-355
20 The qualification of an armed conflict as either an IAC of a NIAC is not rigid. A NIAC can become an IAC when the armed conflict is internationalized. See: Kleffner 2015, 41-42; Akande 2012, 60-61; Gill 2016, 365 21 Tadić Case (Decision) ICTY IT-94-1-AR72 (2 October 1995) §70
territory and situations in which war is declared between States.22 It is the dominant opinion in
international law that the threshold for an armed conflict to qualify as an IAC is low.This withholds that every use of force between States and every period of occupation triggers the existence of an IAC.23 With regard to war crimes a qualification as IAC would be favourable.
When war crimes have been committed in an IAC every State that signed the Geneva Conventions, so every State, is legally obligatory to pursue and arrest suspected war criminals passing through their State. This obligation does not exist in NIAC.24
A non-international armed conflict (hereinafter NIAC) is an armed conflict that does not necessarily involve more than one State and that does involve one or multiple non-state actors. In the Tadić case it was defined as protracted armed violence between governmental authorities and organized armed groups (hereinafter OAG) or between such groups within a State.25 The threshold for a conflict to qualify as a NIAC is higher than the threshold for an
IAC. In order for a conflict to be a NIAC a minimum degree of organization is required from the OAG. An armed group is an OAG when the group stands under responsible command and exercises control over a part of the State’s territory in such a way that the group is able to carry out sustained and concerted military operations.26 Most contemporary conflicts are
NIACs, or even multiple NIACs as is the case in Syria.27 1.3.1 Qualification of armed conflict in Syria
Since February 2011 till now the conflict in Syria has evolved from a population rising up against their government to a statewide conflict involving many different national and international actors.28 Over the years the number of armed groups active in Syria has grown to
hundreds, some estimate 1500, of groups.29 I will discuss only the main parties.
The actors in the conflict can be split up into five main groups: (i) the Syrian Government, its allied OAGs and allies Iran and Russia; (ii) the mainstream opposition, both secular and
22 Geneva Conventions, common art. 2 23 Gill 2016, 363
24 Ryan Goodman, ‘ Is the United States Already in an ‘International Armed Conflict’ with Syria?’ Just Security (11 October 2016) < https://www.justsecurity.org/33477/united-states-international-armed-conflict-syria/> accessed 22 February 2019
25 Tadić Case (Decision) ICTY IT-94-1-AR72 (2 October 1995) §70
26 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I) (adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 3, art. 1
27 Henckaerts 2002, 187; Ronen 2014, 475-497
28 For an overview of the conflict in Syria: RULAC Geneva Academy, ‘Syria’, (updated 14 February 2018) <http://www.rulac.org/countries/syria> accessed 17 February 2019
29 Carla E. Humud and others, ‘Armed Conflict in Syria: Overview and U.S. Response’ Congressional Research Service (updated 2 January 2019) RL33487 <https://www.fas.org/sgp/crs/mideast/RL33487.pdf> accessed 17 February 2019
religious (the religious part is known as the Islamic front) and Al Nusra; (iii) ISIS, also known as ISIL, IS or Daesh; (iv) the Kurdish militants; (v) the United States led anti-ISIS coalition.30
To summarize it shortly group (i) is in conflict with (ii), (iii) and (iv). Group (v) is in conflict with (iii). Group (iv) is in conflict with Turkey.
It is clear that there are a number of foreign States actively militarily interfering on Syrian territory. Some argue that this would automatically trigger an IAC when done without consent of the State, as is in the case Syria with regard to the anti-ISIS coalition.31 Others hold that
when foreign military action is exclusively aimed at an OAG and does not target the organs or national assets of the territorial State the conflict remains a NIAC, notwithstanding the lack of consent of the territorial State for the intervention.32 This is the position most commonly hold
in international law.
When assessing the factual situation it can be concluded that there are multiple NIACs. The armed groups involved are of organized nature and there is State involvement of multiple States. Therefore the conflict in Syria has reached the threshold of qualification for a NIAC.33
Due to the different groups having different objective I argue that they are de facto fighting different conflicts this amounts in multiple NIACs.34
It was debated whether there is an IAC as well, involving the US and Syria. In 2016 Gill argued that it was not the case and Pearlstein and Goodman where in disagreement over which event would lead to the qualification of in IAC.35 The reason I mean the conflict has
amounted into an IAC now is the Shayrat missile strike. The US has directly attacked an Syrian air base in April 2017.36 This is the direct use of force against Syria and thus the
conflict was at least from there on an IAC.
1.4 Conclusion
Summarizing, a war crime is a serious violation of IHL criminalized by either a treaty or customary law. A war crime can only be committed during an armed conflict, either an IAC or a NIAC, and only by natural persons. The conflict in Syria qualifies as multiple NIACs and
30 Gill 2016, 355-362 31 Gill 2016, 378
32 Gill 2016, 367; Lubell 2012, 432 33 Gill 2016, 375
34 Gill 2016
35 Gill 2016, 375; Deborah Pearlstein, ‘A Syrian IAC?’ Opinio Juris (14 October 2016) <http://opiniojuris.org/2016/10/14/a-syrian-iac/> accessed 22 February 2019; Supra note 26
36 Michael Gordon and others, ‘Dozens of U.S. Missiles Hit Air Base in Syria’ NY Times (New York, 6 April 2017) < https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html> accessed 22 February 2019
an IAC. With regard to the IAC all States have the obligation to arrest and prosecute or extradite persons that are suspects of having committed war crimes.
Chapter 2: Available international and domestic prosecution methods: a general assessment of effectiveness
2.1 Introduction
Having defined war crimes and the conflict in Syria I will now move on to prosecution. The crimes committed during this conflict can be prosecuted in different ways: before the ICC, before an ad hoc tribunal, before a Special Judicial Body (also called mixed or hybrid court) or before a domestic court. The question is which prosecution method is the most effective. In order to determine that effectiveness has to be defined, as I will do in this chapter. In the dictionary effective is defined as ‘adequate to accomplish a purpose’. Legally the definition is more extensive than that. The effectiveness of a court with regard to prosecution in international criminal law is dependent on three criteria: (i) the extent of the jurisdiction of the court; (ii) the level willingness of States cooperate with (the establishment of) that court; (iii) the feasibility of a process before the court.
I will generally assess the prosecution methods that can possibly be used for the conflict in Syria based on those criteria in this chapter, before going into an analysis of the methods in relation to Syria in chapter 3.
2.2 Effective prosecution of war crimes defined
The term effectiveness can mean different things depending on the subject. Amongst others Phelps, Cassese, the International Law Committee (hereinafter ILC) and the President of the ICTY have addressed effectiveness in the legal sense with regard to criminal prosecution in international law.
Phelps defines effective prosecution as the type of prosecution that can accomplish the goals of criminal liability most fully. She formulates hereby deterrence, retribution and victim vindication as goals.37 The ILC does not necessarily qualify effectiveness in one way, yet
remarks that ineffective prosecution would be a consequence of excessive restrictions on the jurisdiction on a court.38 The ILC furthermore states that the effective functioning of the ICC
is dependent on international cooperation and judicial assistance of States.39 Cassese remarks
37 Phelps 2005, 499
38 ILC, ‘Report of the International Law Commission on the Work of its 46th Session’ (2 May-22 July 1994) UN Doc A/49/10, at 61
with regard to ad hoc tribunals that their effectiveness is heavily dependent on the willingness of States to cooperate.40 The President of the ICTY adds another point. He stated in his annual
report in 1997 that with regard to the ICTY financial and logistical obstacles stood in the way of the effectiveness of the court.41
There is not one way in which the effectiveness of a prosecution method can be measured. Therefore I have selected three criteria on basis of which I will assess the effectiveness of the prosecution methods for this thesis. I will explain the criteria and the reasons they are important for determining the effectiveness of a court for prosecuting war crimes.
(i) The extent of the jurisdiction of the court. This withholds the extent of the jurisdiction over the crimes, ratione materiae, as well as over the perpetrators, ratione personae.42 The reason
of the importance of this criterion is simple. In order for a court to be able to prosecute a person for committing war crimes the court should have the jurisdiction to prosecute that crime and the jurisdiction to prosecute that person. When one of these jurisdictions in too narrowly defined the court can be effective in that area, however will be less effective for prosecution of criminals on a large scale.
(ii) The willingness of States to cooperate with the prosecution.43 This includes, when
necessary, the willingness to establish a court and the willingness to exercise jurisdiction. This since courts may need State cooperation in this respect as well. When an international court has to be established States have to cooperate in the establishment. With regard to domestic methods States have to be willing to exercise domestic jurisdiction.
The reason cooperation with a court is of importance is because enforcement on an international level remains difficult. It is thus favourable when States voluntarily cooperate with a certain court. When states do not voluntarily cooperate a prosecutor can sometimes optimize the effectiveness of the prosecution through judicial means dependant on the court. Examples are binding court orders or orders from the UNSC.44
Willingness to cooperate is an important aspect of effectiveness in three main areas, the arrest and transfer of the accused, investigations including the gathering of evidence and enforcement of sentences.45 For this thesis the first two are important. The arrest and transfer
of the accused because the perpetrators of war crimes can found around the world in different States and courts do not have the enforcement power to physically bring these persons into the 40 Cassese 1998, 12
41 ICTY, ‘Fourth Annual Report of the ICTY’ (7 August 1997) UN Doc A/52/375 42 Hobbs 2015, 76
43 Hobbs 2015, 77 44 Ponte 2006, 557 45 Sluiter 2004, 380
courtroom. Investigations and evidence is important since there is no case without evidence.
As Bentham stated a long time ago, evidence is the basis of justice and to exclude evidence is to exclude justice.46 States where the crimes are committed are usually the States where the
evidence can be found. The cooperation of these States is often needed. Not only to provide the evidence to the court, but also to passively support onsite investigation teams of courts or to give access to witnesses in their State.47 The third point, cooperation in the enforcement of
the sentences, can be required from a specific State, for example when the sentence include the forfeiture of property.48 However in the prosecution of war crimes prison sentences are the most imposed sentences. This type of enforcement is generally not problematic.49
(iii) The practical feasibility of the process before a specific court. This includes the availability of financial and logistical recourses and it includes time.50 Without enough
available financial and logistical resources prosecution becomes either impossible, or will take a lot of time since the resources have to be gathered along the way.51 A long timeline can
be problematic. Time should be treated as a resource under practical feasibility. When prosecuting natural persons the average duration of a human life cannot be overlooked. This since elderly individuals have a higher chance of sicknesses making them unfit for trial and long prison sentences laid upon persons in the late stages of their lives will never be fulfilled making them essentially symbolic gestures rather than actual penalties. When looking back on Phelps’ definition of effectiveness this would lead to not fulfilling two of the goals of effective prosecution she found, namely no retribution and no victim vindication. A longer timeline can be the consequence of a lack of financial and/or logistical resources. A timeline can also be stretched due to a long decision making process in the international community. Feasibility of the court will thus include financial resources, logistical resources and time.
2.3 Available international prosecution methods
International prosecution methods available today are based on the precedent of the Nuremberg and Tokyo Military Tribunals. An important difference is that ‘the victors’ established these Military Tribunals at the time, while current international courts are established by the UN, or in cooperation with the UN, and thus accepted by the organisation 46 Bentham 1827, chapter III
47 Sluiter 2004, 381 48 Sluiter 2004, 381
49 With regard to sentencing there is no real issue in the States’ cooperation. Cooperation is needed to enforce the sentence, under supervision of the ICC. The most common sentence in the ICC is a prison sentence. The sentence is to be executed by one of the State on the ICC’s list of willing States with the host state as back up. The tribunals have the same regime. See Sluiter 2004, 381
50 ICTY, ‘Fourth Annual Report of the ICTY’ (7 August 1997) UN Doc A/52/375 51 ICTY, ‘Fourth Annual Report of the ICTY’ (7 August 1997) UN Doc A/52/375
representing the international community as a whole, not only the ‘victors’ of the war.52 The
available international courts are the International Criminal Court (hereinafter ICC), the two ad hoc tribunals: currently the international criminal tribunal for Rwanda and the international criminal tribunals for Yugoslavia (the ICTR and the ICTY) and the Specials Judicial Bodies (currently the Special Chamber of Kosovo; the Special Court of Sierra Leone; the Panels in East Timor; the Extraordinary Chambers in Cambodia and the Special Tribunal for Lebanon53).
The ICC is purely international in nature, which means that it only takes into account international law. The ICC was created through a multilateral treaty, the Rome Statute, and currently 123 States Parties have ratified the treaty.54 The ICC interprets the law primarily as
laid down in the Rome Statute. International customary law is complementary to the Statute.55
The ICC was created after the ad hoc tribunals. The establishment of the ICC was a massive break through at the time and a turning point in the enforcement of legal norms regulating armed conflict.56 Syria is not a Party to the ICC. This does not mean that the ICC the therefore
excluded for this thesis. A non-State Party can choose to accept the jurisdiction of the ICC ad hoc or the UNSC can refer crimes committed in a non-State Party to the ICC.57
The ad hoc tribunals are, like the ICC, entirely international, meaning they only apply international law. The two ad hoc tribunals have primarily dealt with customary international law. This because they were set up with the mandate to prosecute criminals that committed crimes during NIACs, on which mainly customary international law in applicable.58 Ad hoc
tribunals are created by the UNSC under Chapter VII of the UN Charter.59 Like for the former
Yugoslavia and Rwanda an ad hoc tribunal could be created for Syria. This needs to happen through an UNSC resolution. Therefore consensus in the UNSC on the establishment is required.
Special Judicial Bodies are not purely international like the ICC and the ad hoc tribunals. They can be referred to as ‘hybrid courts’ or ‘mixed courts’ since both domestic and 52 Carter & Pocar 2013, 1-2
53 Carter & Pocar 2013, 2-3
54 ICC, ‘The States Parties to the Rome Statute’, <https://asp.icc-cpi.int/en_menus/asp/states
%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx> accessed on 17 February 2019
55 Carter & Pocar 2013, 3 56 Sarooshi 1999, 387
57 Rome Statute of the International Criminal Court (last amended 2010), (adopted on 17 July 1998, entry into force 1 July 2002) ISBN 92-9227-227-6 (hereinafter Rome Statute), art. 12.3 and 13 (b)
58 Carter & Pocar 2013, 3
59 Beigbeder 2011, 49; Charter of the United Nations (adopted 26 June 1945, entry into force 24 October 1945) 1 UNTS XVI (hereinafter UN Charter), art. 41
international law play a role in these Special Judicial Bodies. They are established through treaties with the UN and the State, not necessarily in cooperation with the UNSC.60 The role
of international law plays depends per Special Judicial Body. It can play a big role as it does in the Panels in East Timor61 or no role at all as in Special Tribunal of Lebanon.62 The bodies
have both national and international judges. There are no set rules on what type of judge should be in the majority.63
2.4 Assessment the effectiveness and fairness of international prosecution methods
In this paragraph I will assess the effectiveness of the international prosecution methods based on the criteria for effective prosecution as mentioned in paragraph 2.2, (i) jurisdiction of the courts, (ii) willingness of States to cooperate and (iii) the feasibility of the court. The different methods are split up in subparagraphs.
2.4.1 Effectiveness assessment of the ICC
Firstly, the assessment of the effectiveness of the ICC based on the three criteria.
2.4.1.A Jurisdiction
Starting with the first point, the jurisdiction of the ICC. Before going into the jurisdiction ratione materiae and ratione personae is must be noted that the jurisdiction of the ICC is complementary. The complementarity of the ICC blocks the ICC from proceeding with a case that can be addressed at the national level of the State.64 This entails that the ICC only has
jurisdiction when the national system is unwilling or unable to prosecute this suspect.65
Unwillingness is defined in article 17.2 Rome Statute. The ICC has to consider whether a person is being shielded from responsibility for crimes falling within the ICC’s jurisdiction ratione materiae, whether there was an unjustified delay in the proceedings or whether the proceedings will not be conducted independently and impartially.66 Inability is to be
determined as explained in article 17.3 Rome Statute. The ICC has to consider whether a State is unable to obtain the accused or the necessary evidence and testimony or is otherwise unable 60 Carter & Pocar 2013, 4
61 UNTAET, ‘Regulation No. 2000/15 on the establishment of Panels with exclusive power over serious criminal offences’, (June 6, 2000) UNTAET/REG/2000/15
62 Special Tribunal for Lebanon, ‘The Annual Report for the Special Tribunal of Lebanon from 2009/2010’, (28 February 2010)
63 The international judges are sometimes in the majority, like in the Special Chamber of Kosovo and the Panels in East Timor (UNMIK Reg. No. 2000/64 (Dec. 15, 2000); UNTAET Reg. No. 2000/15 (6 June 2000) or in the minority like in the Extraordinary Chamber in Cambodia (art. 3.2 under (a)-(b) of the Agreement between the UN and the Royal Academy Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (6 June 2003)
64 Schabas 2011, 190-191
65 Schabas 2011, 191; art. 17.1 under a and b Rome Statute 66 Art.17.2 Rome Statute
to prosecute.67 When the national system is unable or unwilling the ICC has jurisdiction,
otherwise it does not.
When this threshold the case has to fall under the jurisdiction ratione materiae and jurisdiction ratione personae of the ICC. The crimes that fall under the jurisdiction ratione materiae of the ICC are clearly defined. This has both a negative and a positive consequence on the effectiveness of the ICC’s jurisdiction. With regard to their jurisdiction ratione materiae the effect is negative. The crimes are so clearly defined that there is not much room for interpretation of the judges, thereby creating a rigid system. New situations on which is not anticipated might fall outside the rigid system.68 The positive effect is however that due to
the clearness in the definition of war crimes the willingness of States to accept a broad jurisdiction ratione personae was higher.69 The ICC can oblige State Parties to cooperate with
the prosecution of their own nationals and officials. Broomhall states that the clear definition of crimes that fall under the jurisdiction ratione materiae of the ICC is the reason that States accepted a broader jurisdiction ratione personae.70 States prefer clearly provided boundaries
to the uncertainty of interpretation of general international law by judges.71 The ICC’s
jurisdiction ratione personae is thus broad. The ICC may prosecute natural persons over the age of 18, including state officials. They must either have the nationality of one of the State Parties, have committed have crime within the jurisdiction ratione materiae of the ICC in a State Party’s territory or the jurisdiction must ad hoc be accepted by a non-State Party.72
Summarizing when a case had passed the threshold of complementarity the ICC’s jurisdiction ratione materiae of the ICC is limited and the jurisdiction ratione personae is broad.
2.4.1.B Willingness to cooperate
The next point in the assessment of effectiveness is the willingness of States to cooperate with the ICC.
First of all, the ICC is already established. This is an important advantage of the ICC over the other international prosecution methods. There is no further cooperation needed for the establishment of the court.
Then the cooperation with the ICC. This includes, as stated above, cooperation in arrest and transfer of the suspects and in evidence gathering. Cooperation is of great importance for the 67 Art. 17.3 Rome Statute
68 See paragraph 2.4.1.A 69 Broomhall 2004, 76-77 70 Bloomhall 2004, 76-77 71 Bloomhall 2004, 76-77 72 Doria and others 2009, 423
ICC. The ICC’s mandate is based upon State cooperation.73 States Parties to the ICC have a
general duty to cooperate with the ICC when the ICC deems a case admissible.74 They
furthermore have a duty to incorporate the Rome Statute into their domestic law.75 The
relationship between the State Parties and the ICC is a vertical one. States are thus expected to cooperate with the ICC, but this cooperation relationship is not reciprocal, which means that the ICC does not have to cooperate in the same way with the State Parties. In case of a dispute between a State and the ICC the ICC settles that dispute.76
The general willingness of the international community to cooperate with the ICC is in theory reflected positively in the Rome Statute having 123 State Parties, which ratified the treaty, including the obligation to cooperate on a vertical basis.77 However an estimated 70% of the
world’s population remains outside the ICC’s jurisdiction since seven of the world’s top 10 most populated states, like China, India and the United States, did not ratify the Rome Statute.78
Remaining outside the ICC’s jurisdiction is however relative. Under general international law States that are not a party to the Rome Statute also have an obligation to investigate and prosecute certain war crimes. This obligation can under certain circumstances create the obligation to cooperate with the ICC or accept its jurisdiction ad hoc.79 The Geneva
Conventions namely contain provisions which oblige State Parties to ‘respect and ensure’ IHL. The ICJ has confirmed in the Nicargua case that this is part of customary international law. In this case the ICJ also stated that ensuring entails that States have to do all they can within their power to make sure the rules of IHL are followed.80 The ICC was established to
pursue serious violations of the Geneva Conventions. The crimes within the jurisdiction ratione materiae of the ICC are grave breaches of the Geneva Conventions.81 According to
Wenqi to ensure respect for the Geneva Conventions in all circumstances thus entails an extended obligation to cooperate with the ICC, or at least make an effort not to block the ICC in its actions.82
73 Stahn & Nerlich 2008, 429
74 Art. 86 Rome Statute; Meron 2011, 172 75 Art. 88 Rome Statute; Meron 2011, 172 76 Sluiter 2002, 81-89
77 ICC, ‘The States Parties to the Rome Statute’, <https://asp.icc-cpi.int/en_menus/asp/states
%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx> accessed on 17 February 2019
78 Meron 2011, 172 79 Meron 2011, 172
80 Nicaragua Case (Nicaragua v United States of America) (Merits) ICJ Rep 14 (27 June 1986) §220 81 Art. 8 Rome Statute
However in practice a more established way to enforce cooperation of a non-State Party is by UNSC referral. The UNSC may under certain circumstances refer a situation to the ICC.83
When the UNSC refers a conflict in a State to the ICC that States, also when it is a non-State Party, has the obligation to cooperate with the ICC due to their obligations under the UN Charter. UNSC referral is namely a measure under Chapter VII UN Charter.84 An example of
when such happened is the referral of the situation in Sudan. Sudan, with regard to the conflict in the Darfur region, was referred to the ICC by the UNSC. Sudan was not a State Party to the ICC.85 Upon advice of the UN International Commission of Inquiry on Darfur the
UNSC passed the resolution referring Sudan, hereby obliging the non-State Party under Chapter VII UN Charter to cooperate with the ICC.86 The referral resulted in multiple cases
considering Darfur currently pending at the ICC. A well known one is the Al Bashir case. Al Bashir is still the President of Sudan and wanted for crimes against humanity, war crimes and genocide. It is still in the pre-trail stage since the suspect remains at large.87
When a State is not a party to the ICC and not referred to the ICC by the UNSC there is no principle obligation to cooperate, neither is arrest and transfer nor in providing access to evidence.88 However the UNSC may demand obligation from all States when it deems such
necessary. Then cooperation is then again mandatory under Chapter VII UN Charter. This was done in the resolution considering the referral of Sudan.89
Then moving on to States that are Parties to the Rome Statute, these States do even though they are Parties, not always voluntarily cooperate with the ICC. State Parties do not do all they can to arrest the persons of whom arrest is wanted by the ICC.90 The obligation to
cooperate specifically on this point is laid down in article 89.1 Rome Statute. The ICC Prosecutor may request any State to arrest and transfer a person to the court. States Parties shall comply, however only in accordance with their domestic law. There is thus an obligation to cooperate that cannot be enforced to the point that it would go against domestic law. In practice States disregard their initial obligation to cooperate often. Examples can be found in the previously mentioned Al Bashir case. Al Bashir who is still at large was present at the
83 Art. 13(b) Rome Statute
84 Chapter VII UN Charter; Meron 2011, 172
85 ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General’ (25 January 2005) <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf> accessed 22 February 2019
86 UNSC Res 1593 (31 March 2005) UN Doc S/RES 1593
87 ICC, ‘Al Bashir case’ <https://www.icc-cpi.int/darfur/albashir> accessed 22 February 2019 88 Art. 89.1 jo. 88 Rome Statute, not the Statute mentioning State Parties
89 UNSC Res 1593 (31 March 2005) UN Doc S/RES 1593 90 Meron 2011, 172-174
territories of State Parties Malawi91 and Chad.92 They did not arrest Al Bashir when he was on
their territory.
The system with regard to evidence gathering is the similar. During the confirmation of charges proceedings the evidence has to be presented to the Pre-Trial chamber. This evidence forms the basis upon which the chamber will decide whether or not the case can proceed to trial.93 The evidence of war crimes is usually located within the State in which the war crime
took place. To obtain access to the evidence and the witnesses of war crimes State cooperation is often necessary.94 State Parties to the ICC are obliged to cooperate, however
cannot be forced to the point that it is against there domestic laws.95
Even though cooperation is often obligatory this does not mean that in practice therefore all States cooperate, as seen with Malawi and Chad.96 The ICC then has to rely upon either
diplomatic pressure persuading a State into cooperation. With regard to cooperation with the ICC it is legally a solid system, however in the way that it is practiced there is room for improvement.
2.4.1.C Feasibility
Then point iii of the effectiveness assessment, the feasibility of a process at the ICC. Feasibility includes the logistical and financial resources of the court. These are not unlimited at the ICC and the Prosecutor makes determinations about the use of them.97 The resources are
to be used to prosecute the ‘leaders who bear most responsibility for the crimes’.98 Although
this is not a jurisdictional provision the ICC does limit it jurisdiction ratione personae de facto by making prosecution of ‘non leader who bear the responsibility of the crimes only partially’ infeasible due to a lack of funding. Logistically the ICC cannot process all war
91 ‘Sudan's Omar al-Bashir in Malawi: ICC wants answers’ BBC (London, 20 October 2011)
<https://www.bbc.com/news/world-africa-15384163> accessed 22 February 2019; ICC Pre-Trial Chamber I, ‘Decision requesting observations about Omar Al-Bashir's recent visit to Malawi’ (19 October 2011) No. ICC-02/05-01/09
92 ICC Pre-Trail Chamber I, ‘Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir’ (13 December 2011) ICC-02/05-01/09
93 The International Bar Association (International Criminal Court & International Criminal Law Programme), ‘Evidence Matters in ICC Trials’, (The Hague, August 2016) <https://www.ibanet.org/Document/Default.aspx? DocumentUid=864b7fc6-0e93-4b2b-a63c-d22fbab6f3d6> accessed 18 February 2019 (hereinafter IBA Report), 9; art. 74.2 Rome Statute
94 IBA Report, 10 95 Art. 86 Rome Statute 96 Meron 2011, 172-174
97 Schabas 2011, 258; art. 42.2 Rome Statute 98 Schabas 2011, 35
criminals in all States. This would require too much staff. This is a reason for the ICC to focus on the leader.
The third resource included in feasibility is time. This is for the ICC an important point with regard to the decision making process when a State is not a party to the ICC. A decision on the referral of a war crime to the ICC with no relation to a State Party is made by the UNSC.99
Referring a State, especially when the conflict involves (high ranking) State officials as possible suspects, to the ICC is a sensitive subject in the political and diplomatic sense. It may therefore take a long time before consensus on such a topic is reached amongst the permanent members of the UNSC. After this decision is made the ICC has to decide on the admissibility of the case. After that decision the actual trial may start. This process has the length of multiple years.100 Therefore a process at the ICC is time consuming.
Summarizing, for a non-State Party the process at the ICC is not feasible when the referral of the State in concern is a politically sensitive topic in the UNSC. A decision making process of years will make the process at the ICC as a whole too time consuming. Furthermore due to the imposed financial restraints the ICC is not a feasible option of prosecution for ‘smaller’ war criminals. When a situation regards a State Party and the suspect is a ‘big’ war criminal the ICC is a feasible option for prosecution.
2.4.2 Effectiveness assessment of Ad Hoc tribunals and Special Judicial Bodies
Next to the ICC there are the ad hoc tribunals and the Special Judicial Bodies. I will assess these in one paragraph due to the overlap between the two types of courts.
2.4.2.A Jurisdiction
Starting with the first criterion of effectiveness, jurisdiction, including both ratione materiae and ratione personae. For both types of courts the jurisdiction ratione materiae is by nature of the court limited to a specific conflict.101 This can be a conflict that stretched over decades,
like for which the Extraordinary Chambers in Cambodia are mandated, or one specific attack, as is the case for the Special Tribunal in Lebanon.102 The specific mandate is one of the main
differences with the ICC, which may prosecute crimes in every conflict.
99 Art. 13 under b Rome Statute 100 IBA Report, 12
101 The ICTR has the power to prosecute persons responsible for serious violations of IHL committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, art. 1 ICTR Statute; The ICTY has the power to prosecute persons responsible for serious violations of IHL committed in the territory of the former Yugoslavia since 1991, art. 1 ICTY Statute
While their jurisdiction is limited with regard to one conflict, within the conflict the jurisdiction ratione materiae is broad. The ad hoc tribunals’ Statutes define war crimes as violations of the law and customs of war. The articles include a list of war crimes that is not limitative like the ICC’s is. The judges may choose to expand their jurisdiction beyond the list.103 With regard to the Special Judicial Bodies the definition of a war crime in line with
general international law, as discussed in paragraph 1.2, namely a serious violation of IHL.104
Special Judicial Bodies can furthermore have jurisdiction over ‘ordinary’ crimes under domestic law, which do not necessarily qualify as war crimes, such as murder and sexual offences.105 This is where Special Judicial Bodies differ from ad hoc tribunals which are
purely international and do not have jurisdiction over domestic crimes. Concluding, both types of courts have a broad jurisdiction ratione materiae, since their definitions are non-limitative open norms within the specific context of one conflict.
The jurisdiction ratione personae of both types of courts is broad as well. The statutes of the ad hoc tribunals limit the jurisdictional reach only to natural persons who have committed crimes falling within their jurisdiction ratione materiae.106 Special Judicial Bodies have in line
with general international law discussed in chapter 1 a similar broad jurisdiction over all naturals person involved in crimes inside their mandate.
Due to the broad jurisdiction ratione materiae and ratione personae of both courts, they are both effective on basis of this criterion in the assessment.
2.4.2.B Willingness to establish and cooperate
The second criterion is the willingness to cooperate with these types of courts. Due to the fact that ad hoc tribunals and Special Judicial Bodies are established for a specific conflict there must, other than with the ICC, first be willingness among States to establish a court before the willingness of cooperation with the court comes into play. The question whether or not there is willingness to establish a court thus has to precede the question of willingness to cooperate with the court.
With regard to ad hoc tribunals there is no willingness amongst States to create another after the ICTY and the ICTY. These two ad hoc tribunals were not meant to be models for the future, due to their slow trials and the high costs.107 The ICC was meant to fulfil the future
103 Art. 2 ICTY Statute; art. 4 ICTR Statute
104 War crime are not defined in the statute or regulations of the special judicial bodies except in those of the SCSL (article 1 Statute of SCSL) and the Extraordinary Chambers in Cambodia (Preambule Internal rules Rev. 9) and here war crimes are defined in line with their definition in general international law.
105 Sluiter 2004, 384
106 Art. 5 ICTR Statute; art. 6 ICTY Statute 107 Beigbeder 2011, 107
duties of the ad hoc tribunals as it is less costly to have one fully international court that has a mandate over every conflict than establish a new one every conflict.108 The willingness of
States to establish a new ad hoc tribunal can thus said to be minimal. This makes establishment well-nigh impossible since this is done in the UNSC and the five permanent members have to agree on the establishment. This is different with regard to Special Judicial Bodies. The Special Tribunal for Lebanon and Special Chamber of Kosovo were both established after the ICC. The ICC was not meant to replace these types of courts. This category of courts enjoys a higher willingness to establish in the international community than ad hoc tribunals do.109 They are also a lot less costly, as I will get back to later. Another
advantages is that the permanent members of the UNSC do not necessarily need to be in consensus on the establishment since a Special Judicial Body can be created through a regular treaty between the State in question and the UN.110
When the court is established the willingness to cooperate with the court comes into play. Cooperation includes again arrest and transfers, and investigation and evidence gathering.111
Like the ICC the relationship between States and the ad hoc tribunals and Special Judicial Bodies is vertical, entailing that State cooperation is a one-way street and that by any disputes the court is the one that settles the dispute.112 An exception is when a Special Judicial Body is
an entity within the domestic legal system of a State. This transforms the relationship between the court and States from a vertical to a more horizontal one.113 In a horizontal relationship the
Special Judicial Body would be treated more as foreign domestic court rather than an international court. Horizontal cooperation is differs in the sense that it is based on reciprocity and disputes are settled with both parties on equal foot.114 It could be argued that a State had
more to ‘gain’ from this kind of relationship due to the reciprocity.
More specifically with regarding to cooperation with the ad hoc tribunals, it is an important difference between them and other courts that cooperation is obliged on the basis of Chapter VII UN Charter.115 Cooperation requests from ad hoc tribunals are to be interpreted as
enforcement measures under Chapter VII and therefore all States are obliged to comply with
108 Broomhall 2004, 151; Beigbeder 2011, 107 109 Beigbeder 2011, 107 110 Beigbeder 2011, 107; Radziejowska, 3 111 Sluiter 2004, 380 112 Sluiter 2004, 382 113 Sluiter 2004, 386 114 Sluiter 2004, 382-383 115 Kumar Gupta 2000, §30
them, independent of what their domestic legislation may demand.116 With regard to arrest and
transfer, and evidence the States’ obligations are codified in article 28 ICTR Statute and article 29 ICTY Statute. This does however not mean that States always comply with the tribunals. The ICTY had for example in its early years great difficulty with getting the Balkan States to help apprehend suspects.117 Diplomatic pressure was needed to persuade the States to
cooperate.118 Also with regard to evidence information is often withheld from the ad hoc
tribunals by States.119 So even when State cooperation is obliged by the UNSC, States are not
always willing to fully cooperate with the court.
Some, not all, Special Judicial Bodies are created under supervision of the UNSC as well, like the Special Panels in East Timor and Special Chamber of Kosovo.120 However they are not
created under Chapter VII, so there is no legal obligation to cooperate with a Special Judicial Body, as there is with an ad hoc tribunal. However since a Special Judicial Body is created in cooperation with the State of concern as a party, the State of concern does have a principle obligation to cooperate with the court. Yet even when a State is directly involved in the establishment of the court cooperation is not a given.121 The SCSL experienced for example
great difficulty in getting hold of Liberian president Charles Taylor for trial. Diplomatic pressure eventually helped.122
Summarizing is may be concluded that the obligation to cooperate with ad hoc tribunals is the strongest, comparable to the obligation to cooperate with the ICC when a UNSC has demanded such. This due to the courts being created under Chapter VII. Cooperation with a Special Judicial Bodies is not obligatory in the same way. This is namely a ‘normal’ treaty obligation. With both types of courts States do however not always cooperate. Diplomatic pressure can then be a solution.
2.4.2.C Feasibility
The third point regards the feasibility of a process before an ad hoc tribunal or a Special Judicial Body, focusing on financial and logistical resources and time. Starting with the ad hoc tribunals it is known that the ICTY and the ICTR suffered from a lack of financial and 116 UNSC 'Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808’, UN Doc S/25704 (1993) (for ICTY Statute); UNSC Res. 995 (8 November 1994) UN Doc S/RES/955 (for ICTR Statute)
117 Meron 2011, 174 118 Meron 2011, 174 119 Jorda 2004, 578 120 Sluiter 2004, 388-389
121 Due to the mixed, more horizontal, nature of Special Judicial Bodies domestic law can in some circumstances also be used in order to persuade States into cooperation, see Iontcheva Turner 2005, 46
logistical recourses. Requests for additional resources were only partially met leading to the tribunals struggling to fulfil their mandate due to the lack of resources.123 This while the ICTY
had an annual budget of over $100 million and over 1000 employees.124 There is thus a high
amount of resources, both financially and logistically, needed to establish and operate this type of court.125 With regard to the resource time the main problem with ad hoc tribunals is
that it can take a very long time before the UNSC reaches the point where they agree on the establishment of one. Especially now the international community does not stand positively towards the establishment of an ad hoc tribunal reaching a consensus is well-nigh impossible.126 An ad hoc tribunal is thus in general not a feasible option. A Special Judicial
Body could be a feasible option. Special Judicial Bodies requires less funding, less personnel127 and can be established without the UNSC. They international community is also
not as negative towards the establishment of this type of court.128 Therefore a Special Judicial
Body is preferable over an ad hoc tribunal with regard to feasibility in all three areas.
2.5 Methods of domestic prosecution
Next to international prosecution methods it is possible to prosecute war crimes on a domestic level. This can be done by in the domestic courts of the States in which the crimes took place, territorial jurisdiction, by the domestic courts of the State of which the perpetrator is a national, active nationality jurisdiction, or through ‘universal jurisdiction’ by which in theory by any State in the world can prosecute the case.129 The latter is in most States subsidiary to
the other two.130
With regard to Syria these three methods are possible. Syria, in theory, could prosecute war criminals for crimes on their own territory. Foreign States could prosecute their nationals who are suspected of war crimes. Any State could exercise universal jurisdiction. In practice the reach of domestic jurisdiction over war crimes is dependent on the national legislation of the State in question.131
123 ICTY, ‘Fifth annual report of the ICTY’, (18 September 1997) UN Doc A/52/375-S/1997/729; ICTR, ‘Fifth annual report of the ICTR’, (2 October 2000) UN Doc A/55/435–S/2000/927
124 Kutnjak Ivkovic 2001, 255 125 Beigbeder 2011, 107 126 Beigbeder 201, 107
127 The Panels used only $14.3 million in 3 years, Biegbeder 2011, 117; the SCSL had a budget of $107.4 million in 5 years, Biegbeder 2011, 132; the more expensive and extended court is the Extraordinary Chamber for Cambodia which used $187.3 million in 6 years and employs around 500 persons in staff, Biegbeder 2011, 156
128 Biegbeder 2011, 107 129 Rikhof 2009, 2
130 Moodrick-Even Khen 2015, 286 131 Rikhof 2009, 10-15
I will first explain jurisdiction based on territory or nationality. The possibility to prosecute war crimes is integrated into the domestic law of States. Domestic legislation on this point came up as a result of the ratification of the Geneva Conventions and many States added to it after the Rome Statute.132 The provisions of the domestic laws differ per State.
A State’s prosecution over war crimes can be based upon a linkage with the crime. A domestic court may exercise jurisdiction over crimes committed within the borders of its State. This right springs from the Lotus case of 1927 and is known as the territorial principle.133 Furthermore a domestic court may exercise jurisdiction over the nationals of its
State, also for conduct abroad. This is known as the active nationality principle.134 In the
above-mentioned Lotus case, on which the territorial principle in based, the PCIJ states that a State may not exercise jurisdiction over another State’s territory, unless there is a permissive rule stating otherwise.135 Nationality is such a permissive rule, or exception on the Lotus
principle of territoriality.136 Both these types of jurisdiction are used regularly and on a global
basis for the prosecution of war crimes. There have been around 10.0000 convictions in 20 States spread of 4 different continents under either territorial jurisdiction or nationality active jurisdiction.137
Universal jurisdiction is different. It allows domestic courts worldwide to prosecute a person for war crimes, crimes against humanity, genocide and torture.138 The rationale behind
universal jurisdiction is that some types of crimes affect the interests of all States or are a threat to the international peace. As they affect all States, or the international community as a whole, any State has the jurisdiction to prosecute these crimes.139 Universal jurisdiction
applies irrespective of territoriality or nationality.140
Universal jurisdiction is not a modern concept. It can be traced back to the 14th century and
was for example seen in the prosecution of pirates.141 The Eichmann case of the Israeli
Supreme Court has served as the authority for the existence of universal jurisdiction in modern day international law. In this case Israel prosecuted Eichmann for crimes committed 132 Rikhof 2009, 10
133 SS ‘Lotus’, France v Turkey, (Judgement) PCIJ Series A, No 10 (7 September 1927)
134 I consider for this thesis nationality active jurisdiction. Passive nationality jurisdiction entails that not the perpetrator, but the victim is a national of the State exercising jurisdiction over the crime. See, Lenhoff 1964, 13-14 135 Supra nota 133 136 Lenhoff 1964, 13 137 Rikhof 2009, 15 138 Biegbeder 2011, 272 139 Rahim Tashakkul 2011 140 Rahim Tashakkul 2011, 110
as a Nazi leader during World War II. Universal jurisdiction over these crimes was recognized.142 With regard to IHL the possibility to exercise universal jurisdiction is codified
in article 49 of the 1st GC, article 50 of the 2nd GC, article 129 of the 3rd GC, article 146 of the
4th GC, article 85.1 of AP I for IAC and article 6 AP II for NIAC.143 In order to actually
exercise it the State must have the possibility to exercise universal jurisdiction integrated in their domestic law. There is one exception to this last point. Under some conventions exercising universal jurisdiction is mandatory. This is called an ‘aut dedere au judicare’ (to extradite or to prosecute) clause. When this principle applies States can choose to either prosecute the suspect in a competent domestic court or extradite the suspect to a State/court that is willing to prosecute.144 This is for example the case in the Genocide convention.145
Unlike the international prosecution methods, where either an UNSC Resolution is needed or the State’s government needs to be involved in the matter, domestic jurisdiction can be executed without the UNSC and the State. It has already been successfully done in German and Swedish courts with regard to Syria, proving its potential for further growth.146
2.6 Effectiveness assessment of domestic jurisdiction based on territory or nationality of the perpetrator
The effectiveness assessment will be executed in the same way as it was done above with the international prosecution methods, based on the three criteria (i) jurisdiction, (ii) the willingness of States to cooperate and (iii) feasibility of the prosecution method.
2.6.1 Jurisdiction
In international law there are no limitations in the jurisdiction ratione materiae or ratione personae of States’ exercising jurisdiction in their own domestic courts. It is the State itself that decides upon the limits, as in their sovereign right.147
What can be said is that States that have signed and ratified the Rome Statute have often brought their domestic law regarding war crimes into compliance with the Rome Statute.148
However even here there is no real coherency there. Some States statically implemented the
142 Harry 1983, 224; Eichmann case (Judgement) District Court of Jerusalem, Israel No. 40/61 (11 December 1961) §12
143 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entry into force 12 January 1951) 78 UNTS 277 (Genocide Convention), art. VI
144 Bekyashev 2006, 398-400 145 Rahim Tashakkul 2011, 112-113
146 Human Rights Watch, ‘These are the Crimes we are Fleeing’, (HRW Report, 3 October 2017)
< https://www.hrw.org/report/2017/10/03/these-are-crimes-we-are-fleeing/justice-syria-swedish-and-german-courts> accessed 12 February 2019
147 Ryngaert 2008, chapter 3 148 Rikhof 2009, 1
