CIAO DATE: 03/02
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1999 (Volume 10 Issue 1)
The threat or use of force by NATO without Security Council authorization has assumed importance because of the Kosovo crisis and the debate about a new strategic concept for the Alliance. The October 1998 threat of air strikes against the FRY breached the UN Charter, despite NATO's effort to rely on the doctrines of necessity and humanitarian intervention and to conform with the sense and logic of relevant Council resolutions. But there are 'hard cases' involving terrible dilemmas in which imperative political and moral considerations leave no choice but to act outside the law. The more isolated these instances remain, the less is their potential to erode the rules of international law. The possible boomerang effect of such breaches can never be excluded, but the danger can be reduced by spelling out the factors that make an ad hoc decision distinctive and minimize its precendential significance. In the case of Kosovo, only a thin red line separates NATO's action from international legality. But should such an approach become a regular part of this strategic programme for the future, it would undermine the universal system of collective security. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. If the Washington Treaty has a hard legal core which even the most dynamic and innovative (re-)interpretation cannot erode, it is NATO's subordination to the principles of the UN Charter.
Caesius comments on the article by Simma, also in this issue, on the legitimacy of the use of force by NATO in the Kosovo crisis. The author agrees with Simma that NATO's action falls outside the scope of the United Nations Charter and, by that token, is illegal under international law. This breach is not a negligible one and it is not to be countenanced merely by referring to its exceptional character and by stating that it should not be seen as setting a precedent. The author explores the notion that NATO's action may nevertheless be taken as evidence of an emerging doctrine in international law allowing the use of forcible countermeasures to impede a state from committing large-scale atrocities on its own territory, in circumstances where the Security Council is incapable of responding adequately to the crisis. The author argues that where a number of stringent conditions are met, a customary rule may emerge which would legitimize the use of force by a group of states in the absence of prior authorization by the Security Council. This is subject to various caveats, including the need to bear in mind the threat to global security which is inevitably involved in the use of force without such authorization.
The social function of international law is the same as that of other forms of law. It is a mode of the self-constituting of a society, namely the international society of the whole human race the society of all societies. Law is a system of legal relations which condition social action to serve the common interest. Law is a product of social processes which determine society's common interest and which organize the making and application of law. The international legal system integrates all subordinate legal systems (international constitutional law) and regulates the international public realm and the interaction of subordinate public realms (international public law). National legal systems (including private international law) are part of the international legal system. International law takes a customary form, in which society orders itself through its experience of self-ordering, and a legislative form (treaties). The state of international law at any time reflect the degree of development of international society. Recent developments in international society have made necessary and inevitable the coming-to-consciousness of international law as the fully effective law of a fully functioning international society, but that development faces a number of problems and impediments which must be overcome.
One of the most interesting aspects of CIS constitutional reforms is the gradual 'opening' of the domestic legal systems of these countries to international law. Many CIS countries have rejected the traditional dualist approach to the implementation of international law in domestic legal systems and have proclaimed international law to be part of domestic law. Some have proclaimed the supremacy of treaties over contrary domestic legislation. However, the actual status of international law in CIS countries is determined not only by constitutional clauses, but also by the willingness of domestic courts to rely on that body of law. An analysis of available judicial practice in CIS countries indicates that this 'opening' of the domestic legal orders to international law has not always been transformed into reality. The paper attempts to assess the impact on actual practice of the constitutional declarations of CIS states regarding international law. It examines the judicial practice of CIS countries in this area and the principal policy factors affecting the implementation of international law in these states. It concludes that only some of these countries take their constitutional clauses concerning international law seriously.
In this essay, the author identifies a malaise in the teaching of international law resulting from a fear of being consigned to the academic peripheries. This fear arises from a sense that international lawyers are deemed not sufficiently like 'real' lawyers by some of our colleagues in the law schools and not savvy enough about global realities according to some international relations scholars. The response to these fears sometimes involves a series of compromises with 'legalism' and 'realism'. The consequences of these compromises include theoretical incoherence and a depoliticization of the subject matter. These theoretical failures drive teachers towards a mode that the author calls 'romantic'. The romantic mode is alluring but superficial and ultimately threatens to further empty international law of political content. The author suggests three possible solutions to these problems. The first is to adopt a more integrated theoretical approach to the teaching of international law. The second is to embrace a more explicitly political method in which the teaching of international law is capable of bing an imaginative act of dissent. Finally, the author suggests a way of teaching context that avoids what is described as the romantic malaise.
The international community has been chastened by the recent record of brutal civil wars. Violation of humanitarian standards has become a tactic of war. The attempt to strengthen enforcement of the law of war through a permanent international criminal court is thus a signal event. The negotiations conducted in Rome in 1998 did not solve all the difficulties that attend a permanent court. These include the problem of amnesties in democratic transitions, the necessary role of the Security Council in UN security architecture, the conflict between broad jurisdiction and developing the law, the role of consent as a treaty principle and third party jurisdiction, the handling of treaty amendments, and the inclusion of 'aggression' as a crime with no agreement on its definition. The necessary role of the United States in providing effective enforcement of ICC judgments warrants continued negotiation to overcome these differences.
In her article in this issue Ruth Wedgwood identifies several features of the Statute of the International Criminal Court that raise American concerns. Although these concerns may have political bearing, the Statute provisions are widely within the scope of existing international law. Explicitly allowing amnesties as a ground for denying surrender of a person to the Court would run counter to the need to avoid impunity for the crimes in question, given their nature, the international concern they merit and their existing legal status. The Statute includes clauses that allow the Court to discontinue prosecution in the general interest of justice. Amnesties may be a relevant factor in such a decision. The Security Council has a significant right to refer cases to the Court, as well as the power to suspend a prosecution. The Statute allows for indefinite renewal of the suspension period. The ICC does not exercise universal jurisdiction. Its jurisdiction is based squarely on traditional modes of jurisdiction exercised by states. There is no principle in international law that prohibits states from conferring their sovereign jurisdiction to an international entity. Problems of pacta tertiis do not arise, since the Statute does not impose legal obligations on non-state parties. The language in the Statute regarding direct and indirect transfer is a valid interpretation of the Geneva Conventions. Additionally, the Statute must be interpreted according to governing provisions of international law, including the Geneva Conventions themselves. There are several provisions in the Statute which deal with non-compliance with requests of the ICC for cooperation. Further provisions will be elaborated by the Assembly of States Parties.
The traditional practice of reserving criminal jurisdiction over members of peacekeeping operations for troop contributing states has certain disadvantages. The drafting of the Statute for an International Criminal Court (ICC) provided an opportunity to re-evaluate this practice and devise an improved one. The Statute that was adopted in Rome in July 1998 has been criticized by the United States for allowing prosecution of its peacekeepers by the ICC, which the US fears may lead to politicized prosecutions. This article discusses what changes the Statute entails with regard to the prosecution of peacekeepers. It argues that the traditional practice largely remains unaffected because the Statute includes a number of safeguards, a principal one being the notion of complementarity. The article concludes that the content of the Statute does not justify US fears and that it does not address the problems connected with the traditional system of criminal jurisdiction over peacekeepers.
The author appraises the contribution of the International Criminal Court (ICC) to substantive and procedural international criminal law. He portrays it as a revolutionary innovation. Its substantive features include: a definition of crimes falling within its jurisdiction which is more specific than in existing international law; and impressive detail in spelling out general principles of international criminal law such as actus reus, mens rea, nullum crimen and nulla poena, as well as various forms of international criminal responsibility (for commission of crimes, aiding and abetting, etc). Certain of the substantive provisions, however, may be considered retrogressive in the light of existing law. These include: the distinction between international and internal armed conflicts, needlessly perpetuated in Article 8; an insufficient prohibition of the use in armed conflict of modern weapons that cause unnecessary suffering or are inherently indiscriminate; the excessively cautious criminalization of war crimes offences; the omission of recklessness as a culpable state of mind at least for some crimes; and excessive breadth given to the defences of mistake of law, superior order and self-defence. The author considers the ICC's major contribution to be procedural. The Statute has set up a complex judicial body with detailed regulations governing all the stages in the criminal adjudication. The prerequisites to the exercise of jurisdiction , however, depend greatly on the willingness of all states parties concerned in the prosecution to cooperate with the Court. In its present form, the author argues, the Statute is somewhat too deferential to the prerogatives of state sovereignty, a fact which could impair the ICC'S effectiveness.
This paper endeavours to critically assess Article 33 of the Statute of the International Criminal Court on superior orders by comparing it with customary international law. The author notes that case law and the legal literature have never clarified the content of the customary rule on this matter. Two apparently conflicting approaches have emerged. The conditional liability approach, generally adopted by national legal systems, admits the plea as a complete defence, unless the subordinate knew or should have known the illegality of the order or unless the order was manifestly illegal. By contrast relevant international instruments prior to the Rome Statute have invariably taken the absolute liability approach, according to which obedience to orders is never a defence. The author contends that close scrutiny of national legislation and case law shows that the divergences in international practice are more apparent than real and that the customary rule on superior orders upholds the absolute liability approach. By adopting the conditional liability approach with regard to war crimes, Article 33 of the Rome Statute has departed from customary international law without any well-grounded reasons. This departure is all the more questionable since it is basically inconsistent with the codification of war crimes effected through Article 8 of the Rome Statute. This Article lays down an exhaustive list of war crimes covering acts that are unquestionably and blatantly criminal. It would therefore appear to be impossible to claim that orders to perpetrate any of those acts are not manifestly unlawful or that subordinates could not recognize their illegality.