Justice for Crimes Against Humanity PDF
Preview Justice for Crimes Against Humanity
01 Latt&Sands Prelims 28/3/03 1:15 pm Page i JUSTICE FOR CRIMES AGAINST HUMANITY The aim of this book is to assess recent developments in international law seeking to bring an end to impunity by bringing to justice those accused of war crimes and crimes against humanity. The book was origi- nally conceived while the editors were engaged, in different capacities, in proceedings relating to the detention of Senator Pinochet in London. The vigorous public debate that attended that case—and related devel- opments in international criminal justice, such as the creation of the International Criminal Court and the trial of former President Milosevic—demonstrate the close connections between the law and wider political or moral questions. In the field of international criminal justice there appeared, therefore, a clear need to distinguish legal from essentially political issues—promoting the application of the law in an impartial and apolitical manner—while at the same time enabling each to legitimately inform the development of the other. The essays in this volume, written by internationally recognised legal experts—scholars, practitioners, judges—explore a wide range of sub- jects, including immunities, justice in international and mixed courts, justice in national courts, and in a particularly practical section, perspec- tives offered by experienced practitioners in the field. 01 Latt&Sands Prelims 28/3/03 1:15 pm Page ii 01 Latt&Sands Prelims 28/3/03 1:15 pm Page iii Justice for Crimes Against Humanity Edited by MARK LATTIMER and PHILIPPE SANDS HART PUBLISHING OXFORD AND PORTLAND, OREGON 2003 01 Latt&Sands Prelims 28/3/03 1:15 pm Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © The editors and contributors severally 2003 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors ofthis work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies ofthis book or to request a list ofother publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: [email protected] WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-413-9 (hardback) Typeset by Hope Services (Abingdon) Ltd Printed and bound in Great Britain by Biddles Ltd, www.biddles.co.uk 01 Latt&Sands Prelims 28/3/03 1:15 pm Page v For Katya and Clara 01 Latt&Sands Prelims 28/3/03 1:15 pm Page vi 01 Latt&Sands Prelims 28/3/03 1:15 pm Page vii Preface The aim of this book is to provide an assessment of recent developments in international law (including its domestic application) in bringing an end to impunity for persons accused of the most serious international crimes, namely genocide, war crimes and crimes against humanity. The book was conceived while we were both engaged, in different capacities, in the arguments on the Pinochetcase before the Judicial Committee of the House of Lords. The great public interest in that case—and other developments in international criminal law since the late 1990s—demonstrated the close connections between the law and wider political and moral questions. In the field of international criminal justice there appeared, therefore, a clear need to distinguish legal from essen- tially political issues—promoting the application of the law in as objective a manner as possible—while at the same time enabling each to legitimately inform the development of the other. This book thus seeks to provide a broad perspective on the legal issues raised, from scholars, practitioners and a judge. We are very grateful to a number ofpeople whose efforts and encouragement helped make this book possible, including Maggie Paterson, Derek Cross, Stephanie Powell, Tala Dowlatshahi, Noémi Byrd, Helen Ghosh and Ruth Mackenzie. The editors and Benjamin Ferencz would like to thank the Development and Peace Foundation and the Columbia Journal of Transnational Law for permission to use substantial revised extracts from, respectively, SEF Policy Paper 8, ‘From Nuremberg to Rome: Towards an International Criminal Court’ (Bonn, Development and Peace Foundation, 1998) and ‘A Prosecutor’s Personal Account’ in Columbia Journal of Transnational Law 37, Spring 1999. We also owe a debt of gratitude to our respective colleagues more generally, including those at the Faculty of Law at University College London and the Law Department at the School of Oriental and African Studies, the PICT Centre for International Courts and Tribunals, Matrix Chambers, Amnesty International, Human Rights Watch, Minority Rights Group International, the Redress Trust, and the Medical Foundation for the Care of Victims of Torture. A particular research debt is owed to Reed Brody and Michael Ratner, who in compiling The Pinochet Papers(Kluwer Law International, The Hague, 2000) have greatly facilitated the task of Pinochet scholarship. At Hart Publishing we would like to thank Richard Hart and our copy editor Rose Mary Mullins. We would also like to record our gratitude to John Louth at Oxford University Press for the numerous suggestions, including from other sources, which have improved the book considerably. The strength ofan edited collection such as this is that it reflects a wide range 01 Latt&Sands Prelims 28/3/03 1:15 pm Page viii viii Preface of different voices gathered together in a single volume. This is also a potential weakness, since diversity of style and substance necessarily imposes a challenge for coherence. In bringing together these different voices and perspectives we have tried to strike an appropriate balance between uniformity of style and the individual tone ofthe contributors. A word of explanation is necessary about the style used in referring to the crimes which form the subject matter of this book. They broadly include geno- cide, torture, crimes against humanity, war crimes and other serious violations of international law attracting criminal liability. There is no precise catch-all phrase which covers all these categories ofoffence (which in some cases overlap) and a number are favoured by different contributors, including ‘international crimes’ or ‘crimes under international law’, ‘human rights crimes’, ‘human rights atrocities’ or (as in the book’s title) simply ‘crimes against humanity’. The individual contributor’s preferred term has been retained where a summary expression is clearly being used; where the context requires reference to a partic- ular category of offence or source of law, the correct specialist term is used, applied consistently through the book. An outline of the different sources of law—and their interrelationship—may be found in the introduction. Mark Lattimer Philippe Sands London, December 2002 01 Latt&Sands Prelims 28/3/03 1:15 pm Page ix Contents List of contributors Introduction Mark Lattimer and Philippe Sands PART I ATROCITY, IMPUNITY, JUSTICE 1 From Nuremberg to Rome: a Personal Account Benjamin Ferencz 2 Universal Jurisdiction: New Uses for an Old Tool Christopher Keith Hall 3 Immunities for Heads ofState: Where Do We Stand? Brigitte Stern 4 TheirAtrocities and OurMisdemeanours: The Reticence ofStates to Try Their ‘Own Nationals’ for International Crimes Timothy McCormack PART II JUSTICE IN INTERNATIONAL AND MIXED LAW COURTS 5 The International Criminal Tribunals for the Former Yugoslavia and Rwanda Graham Blewitt 6 The Collection and Admissibility ofEvidence and the Rights of the Accused Richard May 7 The Permanent International Criminal Court M Cherif Bassiouni 8 Striking a Balance: Mixed Law Tribunals and Conflicts ofJurisdiction Diane Orentlicher 01 Latt&Sands Prelims 28/3/03 1:15 pm Page x x Contents PART III JUSTICE IN NATIONAL COURTS 9 Pursuing Crimes Against Humanity in the United States: the Need for a Comprehensive Liability Regime William Aceves and Paul Hoffman 10 Criminal Responsibility in the UK for International Crimes Beyond Pinochet Clare Montgomery 11 Civil Reparation in National Courts for Victims ofHuman Rights Abuse Fiona McKay 12 National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction before the International Court ofJustice Andrew Clapham PART IV PERSPECTIVES FROM PRACTITIONERS 13 Personal perspectives 13.1 PW Botha Before South Africa’s Truth and Reconciliation Process Alex Boraine 13.2 Prosecuting Hastings Banda in Malawi Sadakat Kadri 13.3 The Contribution ofInternational Tribunals to the Development ofInternational Criminal Law Eric David 13.4 UK Prosecutions for Crimes Under International Law Geoffrey Bindman 13.5 The UN Human Rights Machinery and International Criminal Law Nigel Rodley 13.6 Using Universal Jurisdiction to Combat Impunity Reed Brody PART V CONCLUSION 14 Enforcing Human Rights through International Criminal Law Mark Lattimer
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