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James McConvill and Darryl Smith[*]
International law is binding on states, not on persons. To this classic doctrine an exception has now been made in the case of individuals who commit crimes which — whether at a time of war between sovereign states or not — are of such ideologically motivated heinousness as to permit classification as crimes against humanity.
Geoffrey Robertson QC, Crimes Against Humanity, 1999, Penguin, p.195.
Each of us has been horrified by the recent humanitarian crises in East Timor and Kosovo. This article provides a brief discussion of the capacity of the United Nations (UN), primarily through the International Court of Justice (ICJ), to make inquiries for the purpose of being able to attribute responsibility to those individuals who committed war crimes — contrary to international humanitarian law — in both territories.
The ICJ is the principal judicial organ of the UN. It has the responsibility of upholding obligations that attach to states as members of the international community.
Under both the UN Charter and the ICJ Statute, which define its jurisdiction, only states — not individuals — can be parties to a matter before the ICJ. This requirement, reinforcing the ‘classic doctrine’ of international law, is found in Article 93 of the UN Charter and Article 35 of the ICJ Statute.
Article 65 of the UN Charter, along with Article 96 of the ICJ Statute, however, seem to act as an exception to this classic doctrine. These provisions allow the ICJ to give an advisory opinion on any legal question involving international law. Article 96(1) of the UN Charter provides that the General Assembly or Security Council can seek such an advisory opinion.
This power to give advisory opinions may allow the ICJ the appropriate legal capacity to establish and conduct an inquiry to determine individual responsibility for war crimes (contrary to the principles of the Geneva Conventions, which have become part of customary international law) committed in Kosovo and East Timor. To establish such an inquiry, using the advisory opinions power, the General Assembly or Security Council (or another recognised body within the UN) would use Article 96 and request the ICJ to make inquiries about individual participation in the atrocities committed in both Kosovo and East Timor. It would then advise whether such individuals can be held responsible under principles of international humanitarian law.
A potential disadvantage of using the advisory opinions power as a basis for establishing an inquiry is that the ICJ panel must be constituted in part by at least one representative from Serbia and Indonesia — whose nationals may be indicted for war crimes as a result of any such inquiries.
Discussion of the advisory opinions power highlights the fundamental problem of prosecuting individuals for breaching international humanitarian law rules — lack of an appropriate forum. Even though the Nuremberg and Tokyo trials in the 1940s confirmed what Geoffrey Robertson has labelled the ‘exception’ to the classic doctrine that individuals can be held personally liable for war crimes, there is at present no permanent court which has jurisdiction to establish individual responsibility under international criminal law.
Although on 17 July 1998, the UN General Assembly passed the Rome Statute to establish a permanent International Criminal Court. Under Article 126 of the Rome Statute this Court will not be established until 60 states have ratified the Statute. At the time of writing, only nine states had ratified the Statute (not including Australia), meaning that the Court may not commence for quite some time. Furthermore, even if the Court is established, its jurisdiction will not be retroactive. Therefore, as the war crimes in Kosovo and East Timor were committed well before the date on which the Court may be established, it would not have jurisdiction to prosecute individuals for these crimes.
Only in two instances post-Nuremberg has the UN taken appropriate action to set in place a forum for determining individual responsibility for war crimes. This occurred with the establishment of ad hoc tribunals in both Rwanda and the Territory of the Former Yugoslavia. While both ad hoc tribunals continue to operate at this time, the territorial and temporal jurisdiction is limited such that neither is empowered to inquire into, and prosecute individuals for, war crimes committed in East Timor or Kosovo (although there is some dispute as to whether the latter may be covered by the territorial jurisdiction of the Yugoslavian Tribunal).
Considering the success of these two tribunals, the most efficacious path to inquire into war crimes committed in East Timor and Kosovo could be to set up an ad hoc tribunal in both of these territories, using the Statute of the International Tribunal for the Former Yugoslavia (and Rwanda) as a model. The possible establishment of war crimes tribunals in East Timor and Kosovo raises the perennial conflict in international law and policy between territorial sovereignty and humanitarian intervention based on human rights obligations.
The factual context in which the atrocities in both East Timor and Kosovo occurred involved issues to do with a state and attempting to enforce its claim to disputed territory. It could possibly be argued by Serbia and Indonesia that any contentious acts committed by individuals in Kosovo or East Timor during the period of conflict were associated with the domestic affairs of each state (being Serbia and Indonesia) and were thus matters which the UN is not authorised to intervene due to Article 2(7) of the UN Charter which preserves the sovereignty of States over domestic matters. The non-intervention principle — referred to in diplomatic circles as the doctrine of ‘mutual respect’ — embodied in Article 2(7), has become part of customary international law.
However, such an argument seeking to rely on Article 2(7) as both a shield and a sword to any accusation of the commission of war crimes within territorial boundaries represents an anachronistic understanding of the juxtaposition in international law between the mutually important principles of sovereignty and jurisdiction.
In his 1999 Speech to the General Assembly, UN Secretary-General, Kofi Annan, explained how there has been a slow deterioration in deference to the traditional concept of sovereignty (that is, the shaping of international law to reserve State power over its domestic affairs) in favour of the principle of universality (whereby the emergence of international law has the concomitant effect of eroding territorial boundaries) as a result of the increasing ubiquity of international human rights jurisprudence. Mr Annan said:
State sovereignty, in its most basic sense, is being redefined by the forces of globalization and international cooperation. The State is now widely understood to be the servant of its people, and not vice versa. At the same time, individual sovereignty— and by this I mean the human rights and fundamental freedoms of each and every individual as enshrined in our Charter —has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny.[1]
Taking the development of international human rights law, and the consequential movement away from State sovereignty, any intervention by the UN in order to uphold and promote rules of international humanitarian law — which complement the general body of international human rights law — must now be characterised as being a legitimate act to preserve international peace and security rather than an unjustified intrusion into the domestic affairs of a state. Support for the proposition that the development of international human rights law has elevated the status of territorial intervention to uphold rules of international humanitarian law from ‘domestic intrusion’ to ‘international action’ is found in the ‘doctrine of humanitarian intervention’, presently in vogue among international lawyers both in Australia and overseas.
Professor Timothy McCormick, of Melbourne University Law School, has stated how international human rights law has influenced a paradigm shift in international law consistent with the position of ‘humanitarian intervention’ theorists. He wrote:
The development of international human rights law has transformed a state’s treatment of its own nationals from a purely domestic matter to an issue of international concern. Gross and systematic violations by a state of the rights of its own nationals are in and of themselves threats to international peace and security.[2]
The doctrine of humanitarian intervention supports the proposition that evidence of alleged war crimes being committed in a single domestic territory is now a matter of international concern. War crimes constitute violations of human rights, against international covenants protecting such rights which have taken on a global significance. Therefore, any suggestion that war crimes have been committed, even in a single domestic territory (as in Kosovo or East Timor), constitutes a threat to international peace and security.
It must be noted that the use of international human rights law to transmogrify what could be considered a domestic matter into a matter of international concern has been supported recently by a number of Australian judges, particularly former Chief Justice Gerard Brennan and current High Court Justice Michael Kirby. In Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, Brennan J (as he then was) acknowledged that due to the emergence of international human rights law, discriminatory treatment by a nation of its indigenous peoples was now a matter of international concern, such that the common law doctrine of terra nullius — which is inconsistent with the principles of international human rights law — had to be abandoned. His Honour held that:
Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and indiscriminatory document of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. [at 42]
Similarly Justice Kirby has written, both judicially and extra-curially,[3] that the development of international human rights law means that Australian domestic law must now take on an international dimension, such as to be consistent with international law principles whenever possible. In two judgments,[4] his Honour has applied what he has termed an ‘interpretative principle’ for the construction of constitutional and statutory text, so that the text is interpreted — whenever any ambiguities exist, and so far as possible — in favour of a construction which upholds the principles of international human rights law in preference to one that does not.[5]
The significance of the doctrine of humanitarian intervention classifying any action contrary to international humanitarian law, whether committed in a single territory or across national borders, as a threat to international peace and security, is that securing international peace and security takes precedence over the protection of domestic sovereignty under international law. This proposition becomes clear when taking a closer look at Article 2(7) of the UN Charter, and exploring its relationship with Chapter VII of the UN Charter (particularly Article 39) which is used by the UN Security Council to enforce international peace and security.
Article 2(7) provides:
Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. [emphasis added]
Chapter VII of the UN Charter, to which the principle of ‘non-intervention’ is subservient by virtue of Article 2(7), is titled ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. Article 39 of the UN Charter, located in Chapter VII, provides:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 4 and 42, to maintain or restore international peace and security.
Article 39 allows the Security Council, when faced with a threat to — or breach of — the peace, to implement measures to maintain or restore international peace and security. This Chapter VII power, as explicitly stated in the relevant enabling Statutes, was relied on by the Security Council when establishing the ad hoc tribunals in both Former Yugoslavia and Rwanda. When applying the doctrine of humanitarian intervention, it is submitted that the Security Council could also invoke its Chapter VII power to establish similar tribunals to inquire into alleged war crimes committed in both East Timor and Kosovo.
Invoking Chapter VII powers in the case of East Timor and Kosovo would be the best available method of upholding international peace and security, and would add to a favourable development in contemporary international law of bringing an end to impunity for those individuals responsible for crimes which the global community deplores. The legacy of Nuremberg must not be forgotten.
References
[*] James McConvill and Darryl Smith are both students at the School of Law, Deakin University.
This article is based on a paper prepared by James McConvill and Darryl Smith for the United Nations model Conference, hosted in July 2000 by Deakin University.
email: jmcconvi@deakin.edu.au
[1] The full speech of the Secretary-General is available at: <<http:/www. un.org>>.
[2] Timothy McCormack, ‘The Use of Force’, in Sam Blay et al (eds), Public International Law — An Australian Perspective, Oxford University Press, 1997, p.253 (emphasis added).
[3] See, for example, Michael Kirby, “The Impact of International Human Rights Norms: A Law Undergoing Evolution” (1995) Western Australian Law Rev 130.
[4] Newcrest Mining v The Commonwealth (1997) 141 ALR 42 at 147; Kartinyeri v The Commonwealth (the Hindmarsh Island Bridge case) [1998] HCA 22; (1998) 152 ALR 540 at 598-599. For an extended analysis of Justice Kirby’s ‘interpretative principle’ in the context of Australian constitutional law, see James McConvill and Darryl Smith, ‘The High Court and Cooperative Federalism: Bond v R from a Constitutional Perspective’ (2000), unpublished paper.
[5] Michael Kirby, ‘The Road from Bangalore — The First Ten Years of the Bangalore Principles on the Domestic Application of International Human Rights Norms’, (available at: <<http:/www.hcourt.gov.au/ speeches/Kirby.bang11>>).
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