Freeland, Steven --- "Antonio Cassese, International Criminal Law Oxford University Press Oxford 2003 (472 Pages)" [2004] AUJlHRights 25; (2004) 10(2) Australian Journal of Human Rights 25
International Criminal Law
Antonio Cassese, Oxford University Press Oxford 2003
Students and practitioners interested in international criminal law are aware that we are certainly living in tumultuous times. The 1990s have seen the establishment of two important international ad hoc criminal tribunals — one dealing with the genocide in Rwanda during 1994 and the other with the ethnic conflict in the Former Yugoslavia over much of the decade — both of which have provided an ever expanding body of jurisprudence in relation to international crimes. Subsequently, different types of tribunals have been established for Sierra Leone, East Timor and Cambodia in response to the horrific events that had taken place in those countries. Of course, we have also seen the establishment of the International Criminal Court (ICC) from July 2002, the first permanent court dealing with crimes of this nature and which is seen by many as a very significant step forward in a process of ‘internationalization of justice’.
Coupled with these developments, several States have initiated domestic prosecutions of those of their former military and political leaders who had committed gross violations of human rights. Some States have empowered their domestic courts to exercise competence in relation to crimes committed in other countries, as long as there can be seen to exist a sufficient legal nexus to justify jurisdiction — the Pinochet cases are a prime example of this. In addition, over 60 countries of the world from Peru to South Africa have instigated some form of truth or truth and reconciliation commission to deal with the past and to facilitate the movement towards ‘closure’ for both individuals involved in the events and for the broader community.
It is in the context of these recent developments alone that a text outlining the fundamental tenets of international criminal law, particularly written by as eminent an author as Antonio Cassese, is extremely timely and necessary. However, one should not simply assume that this is a relatively ‘new’ area of international law. Human beings have, unfortunately, committed terrible crimes against others since time immemorial and, as Professor Cassese points out, there is a long history of domestic case law from many countries dealing with actions that would fall squarely within the definition of what are now classified as international crimes. Yet, as the author points out, the area of international criminal law has not received significant and systematic academic discussion until quite recently. No doubt the more recent writing on the subject is largely driven by the increasing recognition of the international community, as well as many states within that community, that such behaviour can no longer be allowed. The ‘era of impunity’ that has existed throughout the ages in most parts of the world is no longer politically acceptable.
Professor Cassese has carefully crafted a readable and logical discussion of how basic international law principles have developed and how they are applied and illuminated by the many domestic cases to which he refers, as well as the more recently established international courts. He also discusses how the particular issues he is addressing are dealt with (or not) in the 1998 Rome Statute of the International Criminal Court (Rome Statute).
Like many commentators on the subject, he laments at the failure of the United Nations to ‘react promptly and effectively, and to put a stop to massacres’ in many of the world’s trouble spots.1 Naturally there are very strong political forces at work here, coupled with the fact that States have religiously clung to the customary international ‘non-intervention’ principle, as specified also in art 2(7) of the UN Charter. It is to the great credit of the human rights ‘movement’, principally comprising NGOs, practitioners and academics committed to the enforcement of fundamental rights and the prosecution of those who breach these rights in a serious way, that States have come to accept the inevitability, as well as the legal and moral force, of a system designed to bring perpetrators to justice.
Professor Cassese starts out by referring to the various ways in which States, groups and individuals have reacted in the past to these gross violations of human rights.2 This discussion logically leads the reader to conclude that the notions of ‘justice’ in the context of international crimes are very complex and probably different (though there are obviously areas of overlap) to the justice associated with ‘simple crimes’ such as murder. For example, many domestic criminal legal systems regard the rehabilitation of the perpetrator back into society as one important goal of justice. In circumstances where there has been a long history of horrific crimes among, say, different ethnic groups living in the same society, notions of rehabilitation of those who have committed serious international crimes may not be possible or even appropriate.
Even where the broad principles of justice do coincide between the international and the national systems of criminal law, ‘the application and purpose for each may, however, be different when applied on the international level’.3 In this regard, it would perhaps have been useful for the author to have dedicated more space in the book to a discussion of the goals of the international criminal legal system and international law as a whole — an understanding of the goals would perhaps enable the reader to better understand the system that has already been established and the need for future development of this important issue.
The book systematically discusses the basic general principles of international criminal law and international criminal responsibility.4 Many of these principles have common roots with the fundamentals of domestic criminal law. Professor Cassese provides a vast array of examples from both domestic and international courts to explain these principles to the reader. The complexities associated with international crimes become apparent — in some cases a simple ‘translation’ of widely accepted domestic law principles may either not be applicable or entirely appropriate. The author highlights how the criminal law rule of nullum crimen sine lege is an overarching principle of many domestic jurisdictions. He notes that it ‘must be complied with also at the international level’, but with ‘significant qualifications’.5 As a principle some may find this somewhat controversial. However, as the Nuremberg trials demonstrated, the laws relating to international crimes are typically developed in reaction to rather than in anticipation of horrendous events. As a practical matter this may sometimes necessitate the adaptation of principles to meet particular situations. In the end Professor Cassese suggests that international courts can work within the nullum crimen sine lege principle and at the same time refine and elaborate upon ‘by way of legal construction, existing rules’.6 In practice, however, this is not always straightforward, as illustrated, for example, by the recent majority decision of Trial Chamber I of the International Tribunal for the Former Yugoslavia (ICTY) in relation to a charge of inflicting terror on a civilian population.7
As a result, it is important for the reader to gain a ‘feel’ for the difficulties of applying existing domestic criminal law principles into international criminal law. Once again, it perhaps would have been helpful for Professor Cassese to dwell further on these issues and provide further insights from his vast experience as a judge and academic.
Part of these difficulties also stem from the fact that, in the end, the international tribunals and courts draw from principles arising out of the civil law legal systems (with their inquisitorial model) as well as common law legal systems (an adversarial model). Professor Cassese discusses these issues and concludes that, in the end, the international courts have moved to a ‘mixed’ procedural model to meet the demands of international trials.8
Professor Cassese devotes a chapter for each of the substantive international crimes that are generally accepted to exist. He also raises the suggestion that this is an ‘open page’ in that other crimes may well (and probably should) be classified as international crimes, particularly in the face of continued abuse by States of fundamental human rights. With strong relevance to the current climate and contrary to many contemporary commentators, the author believes that the crime of ‘terrorism’ already exists as a clearly defined crime under customary international law. He regrets that this crime, which like aggression has very deep political overtones, was not included as part of the Rome Statute.9
The author also highlights the need for crimes ‘created’ under human rights conventions — genocide and torture — to be redefined to accord with the realities. Both treaty definitions are too narrow — Professor Cassese points to the conflict between the generally agreed customary law definition of torture and the narrower treaty definition, which is limited to acts of a ‘public official or other person acting in an official capacity’.10
In the case of genocide, the recent decision of the International Criminal Tribunal for Rwanda (ICTR) in Akayesu11 has demonstrated the limitations of the 1948 Genocide Convention definition of that crime, which has simply been copied across into the Statutes of the ICTY and ICTR, as well as the Rome Statute. The book clearly provides the reader an understanding of the fluidity required in the area of international criminal law if it is to be more effective in its goals.
The author provides a rigorous breakdown of the subjective and objective elements of each of the principal international crimes and also discusses in detail the variety of other fundamentals that relate to the commission of these crimes. Three chapters are also devoted to circumstances that may preclude criminal liability. This includes a discussion of the scope of head of state and other functional immunities,12 which have been the subject of a number of recent decisions before the International Court of Justice.13 Professor Cassese points to the apparent conflict between what appear to be the customary law principles in this regard and the fact that the statutes of the international tribunals do not allow recourse to such immunities in relation to international crimes that fall within their competence.14
Professor Cassese also considers the role of national courts in the international criminal legal system. Whilst he does not accept the concept of absolute universal jurisdiction, at least in relation to political and military leaders,15 he still argues that States have many legal avenues available to them to bring to justice persons who have committed gross violations of human rights. Yet, as he points out, many national courts are ‘still loath to bring to justice persons accused of international crimes’.16 Often they are not empowered to do so in any event because many States have failed to properly implement into their domestic law through legislation those treaties they have ratified. On this score he refers to the Australian Federal Court decision of Nulyarimma v Thompson17 as a clear example of where a domestic court lacked jurisdiction (over the crime of genocide) due to the failure of the State to enact appropriate implementing legislation.
In the final chapter, Professor Cassese presents his ‘outlook’ for the future of international criminal justice. Having considered the trends emerging from past national and international practice, he concludes that the role of the individual, either as perpetrator or victim, has been highlighted at the international level. From this reviewer’s viewpoint this is true, but unfortunately glosses over the corollary — that by and large the system has not yet accepted the need for a more ‘collective’ form of responsibility for gross violations of human rights. This is obviously related to what Professor Cassese refers to as the ‘indispensable’ notion of State sovereignty.18
As the author concludes, for an effective system to be established, the needs of State sovereignty and the demands of international criminal justice need to be reconciled.19 This is obviously not an easy task — however Professor Cassese leaves us with the hope that this is possible through working forward on various fronts. As well as the use of international courts such as the ICC, there must be an enhanced role for national courts and the continued utilisation of other forms of investigation such as truth and reconciliation commissions. Only by having resort to ‘the whole gamut of responses, each most suited to a specific condition’ does he believe that the goals of the international community to stem international crimes can be achieved.20
Overall, this is an excellent primary text on the principles of international criminal law and leaves the reader eager to delve further into this area. At the end of each chapter there is a list of further suggested readings that is helpful, though it would have perhaps been of even greater use to have a detailed bibliography included at the end of the book. It is also a most appropriate teaching text, coming as it does with a companion website which contains key international documents and foreign legislation (but, alas, no cases). The book will undoubtedly be of great use to all associated with or interested in the area of international criminal law and will, hopefully, encourage many more people to take an active role in the ongoing development of this vital area of law. l
Steven Freeland, Senior Lecturer in International Law, University of Western Sydney.
2 Chapter 1.
3 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Momir Nikolic Sentencing Judgement 2 November 2003.
4 Chapters 2 and 7-14.
7 See the divergence of opinion between the majority (Judge Orie and Judge El Mahdi) and the separate and dissenting opinion of Judge Nieto-Navia in Trial Chamber I of the ICTY, Prosecutor v Stanislav Galic Judgement 5 December 2003. This was the first time an accused had been found guilty of this crime.
10 Article 1(1) 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, discussed on p 118.
11 Discussed on pp 100-102.
12 Chapter 14.
13 See the judgment of the International Court of Justice on 1 February 2002 in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) and the ongoing matter before the same court in Certain Criminal Proceedings in France (Democratic Republic of the Congo v France).
14 See, for example, art 7(2) of the ICTY Statute, art 6(2) of the ICTR Statute and art 27(1) of the Rome Statute.
19 At p 446.
20 At p 458.