FOR INTERNATIONAL CRIMINAL JUSTICE*
by
Gerhard
o.
W. MUELLER,Pro/essor of Law, Director, Criminal Law Education and Research Center, New York University ; Vice-President, Association Internationale de Droit
Pénal; Past President, American Society of Criminology.
Wars almost too numerous to count have been fought during the memory of most of us, and once again we are witnessing the spectacle of an escalating war which no one wants and for which no one feels responsible. The only positive aspect of the current war in the Far East is the fact that it has reminded ail of us of past futile efforts directed at holding those responsible for wars who maliciously de-prived mankind of peace.
The past efforts to which I refer are, of course, the United Nations Draft Statute for an International Criminal Court, 1 and its Draft
*
The ideas contained in this article were first expressed in my seminars on International Criminal Law, at New York University, 1965 to 1967, where I had my first opportunity to explore them with my colleagues Edward M. Wise and John Carey. In 1967 I submitted the proposai for an international indictment chamber to the First International Congress on International Criminal Law in Paris, April 27-30, 1967. In June, 1968, before the Staatswissenschaftliche Gesellschaft, Berlin, I suggested that this indictment chamber be placed in Berlin, where, indeed, the first session-the indictment session-of the first international war crimes tribunal took place, in 1946.The idea of investigative bodies, in the nature of indicting agencies, is currently gaining prestige. A grand jury to indict individual South African prison officiais suspected of violations of international law has been recently recommended (U.N. Doc. E/CN.4/949/Add. 1, para. 1548, January 23, 1968;
U.N. Doc. A/Conf.32/17, paras. 12 24, March 28, 1968). Professor Oidon Gottlieb (NYU) has recently recommended that the United Nations establish a Grand Jury of Legal Experts for Namibia. See Gottlieb, Establishment of a Grand Jury of Legal Experts for Namibia. (N.Y.U., mimeo. 1968).
1 Report of the 1953 Committee on International Criminal Jurisdiction, General Assembly Official Records, IX, Supp. 12 (A/2645) 23-26 (1954).
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Code of Offenses Against the Peace and Security of Mankind. 2 The latter, sometimes referred to as the Substantive International Criminal Code, was a fantastically simplicistic document, drafted by well-meaning international lawyers and international politicians, but utterly Jacking the sophistication of the specialists in criminal law and crimi-nology. 3 For the last decade it has lingered in the International Law Commission of the United Nations, which is incapable of agreeing on the scope, content and definition of the core provision of the Special Part-if that be the right term-of that Code, namely the Crime of Aggression.
Work on the creation of an international criminal court, under the Draft Statute for an International Criminal Court, has been held totally in abeyance, for if there be no substantive international crimi-nal law, under a substantive code, there need be no court and no procedure.
This is where the matter has been resting, and even academicians took Jittle interest in the idea of securing peace through the use of penal Jaw, until the Association Internationale de Droit Pénal took the initiative of inviting scholars from ail around the world to revive the idea by contributing to a symposium on the topic, titled " Les Projets des Nations Unies Pour l'institution d'une Justice Pénale Internationale," in 1964, 4 followed by the forming of a special com-mittee on International Criminal Law, under the renowned Australian Professor Julius Stone, within the World Rule Through Law Asso-ciation.
Not, however, until a group of men and women who remember the horrors of war better than any other, namely, the French resistance fighters, called a congress on the topic for actual debate of the matter, could there be any hope for a real consideration of the justi-fied hope to use the criminal Jaw's machinery of restraint and coercion for securing peace.
In reviewing the past efforts, it seems to me that the proponents have been too naively optimistic. When Germany, the aggressor of World War II, had been fully defeated, it was an ail too simple fallacy to construct an international criminal justice mode! on the idea of an easy application of a redistributive sanction on defendants in the custody of the judging part of mankind. Two decades Jater it seems
2 General Assembly Official Records, IX, Supp. 9 (2693) 11-R (1954).
3 See Mueller and Wise, International Criminal Law 597-626 (1965).
4 Vol. 35, Nos. 1-2, Revue Internationale de Droit Pénal.
INTERNATIONAL CRIMINAL JUSTICE 109 unlikely that total defeats with consequent easy imposition of retri-butive sanctions will be the rule. On the contrary, the model of the la te 1940s and early 1950s contains two fallacies: that of the de-feated and prostrate, easily available defendant, and that of retri-butive justice.
The mode! of international criminal justice of the future must con tain two changes: it must be directed to a relatively powerful, not easily available defendant, and it should aim at preventive-or deterrent-sanctions.
Implicitly, 1 am sure, it is generally recognized that such an atti-tudinal change in our approach must take place, for reasons of political reality as well as to reflect the progress in penological thinking. Perhaps it is this recognition which has created the current frustration and stalemate in the development. It must be our task to find a way out of the impasse: Heads of state of powerful nations could wage aggressive wars, in hopes of winning them, for whatever reasons of prestige, honor, glory, or principle, because abject defeat and consequent Nuremberg-style justice seem virtually impossible.
Heads of state of small nations could wage aggressive wars, whether on their own or some other nation's account, for they, too, fear no retributive justice. Moreover, Iittle nations are much more certain to obtain the sympathy of the rest of the world in any such conflict than big nations, simply because they are smalt. World opinion plays a major, perhaps a decisive role, in international conflicts today. Might it not be possible to put such world opinion into the service of inter-national criminal Iaw, by channelizing it from the present political arenas into those of an international penal tribunal?
The past mode! relied absolutely on the jurisdictional and enforce-ment power of an international criminal court, and an execution arm of that court. It is clear now that the powerful nations of this world are not about to commit themselves now to a surrender of their heads of state and cabinet ministers for trial before an international criminal court-though they might be willing to conceive of the creation of such a court! And even if they were to bind themselves now to surrender their heads of state and cabinet officers when summoned, they might have second thoughts when such summonses are issued.
In short, the old model stood and fell with the idea of a prostrate, defeated nation, with no power to resist the jurisdiction of a court.
The new mode! must rest on the idea that unwilling heads of state must be coerced by an international judicial apparatus, without their consent, and perhaps not even through trial. The solution
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would center on the problems of (1) subjecting non-consenting, unco-operative third parties to the powers of an international judicial appa-ratus, and (2) using sanctions short of physical constraint, but power-fui in terms of psychological force. Let us begin with the consider-ation of criminal jurisdiction over a non-consenting uncooperative defendant.
Let it be assumed that one hundred and ten smaller member nations of the United Nations were to agree on the establishment of an International Criminal Court with jurisdiction over crimes as en-visaged under the Draft Code of Offenses against the Peace and Security of Mankind. Let it be assumed also that the remaining major powers would not ratify such a convention. It can no longer be doubted that international law would have corne into effect which would bind even the consenting U. N. members-and non-members of the U. N.-if they were to become aggressors, and would thus seem to fall under the jurisdiction of the court in question. 5
A majority of the nations of this world may indeed legislate for a dissenting minority and bind that minority. But the matter does not end there. For even if the few hypothetical non-consenting major powers would be bound de jure by the jurisdiction of such a newly to be created international criminal court, would they not refuse de
facto to accept the jurisdiction of such a court ?
It might be argued that trials for waging aggressive war or for others offenses against the peace and security of mankind could be statutorily authorized against absent parties. But trials in absentia are unknown in Anglo-American countries, 6 are regarded as
distaste-5 See generally, Falk, The Authority of the United Nations to Control Non-Members, 19 Rutgers L. Rev. 591 (1965). For the U.S. view, see Resta-tement (2nd) Foreign Relations Law of the United States Sec. 139(2) (1965).
For a Soviet view see U.N. Doc. No. A/CN.4/182, at 32 (1966).
See also Wright, Proposai for an International Criminal Court, 46 Am.
]. Inti. L. 60, 62-63, 69 (1952); Garcia Mora, International Responsibility for Hostile Acts of Private Persons against Foreign States 186 (1962). For the old view Contra, see Report of the 1953 Committee on International Criminal jurisdiction, 27 july-20 August, 1953. Gen. Ass. 9th Sess., Supp. No. 12, A/2645, p. 14.
6 At common law and under American constitutions and statutes, a de-fendant in a criminal prosecution has the right to be present at every stage of the proceedings, from the beginning of the voir-dire (selection of the jury) through the announcement of judgment and sentence. Denial of this right would amount to a denial of due process. See Hapt v. Utah, 110 U.S. 574 (1884); Cross v. United States, 325 F. 2d 629 (D.C. Cir. 1963). As regards voluntary absence, Rule 43, Federal Rules of Criminal Procedure, provides-in
INTERNATIONAL CRIMINAL JUSTICE 111 fui, and unjust, and have limited effect even in civil law jurisdictions.7 However, proceedings for the finding of indictments, informations or accusatory pleadings, are ex parte in most nations of the world, indictment. The number of cases effectively terminated without trial is unquestionably greater in the common law countries, 10 because codification of the common Iaw-that "ln prosecutions for offenses not punish-able by death, the defendant's voluntary absence after tlze trial lzas been guaranteeing a "fair and public hearing by an independent and impartial tribunal, in the determination of ... any criminal charge," Art. 10, must be understood as
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of the institution of the guilty plea. 11 But it is believed that in the civil law countries, too, a great number of cases are terminated by the indictment chamber (chambre d'accusation) 12 or comparable institution, when the facts would not support a conviction. Moreover, a pretesting of the accusation, even in a civil law country, will make the trial of the case more efficient and effective.
Thus, much can be said for the institution of an indictment or committing chamber, not just as a regular conduit, but as a potential independent institution, with ex parte jurisdiction, and thus capable of receiving facts pertaining to charges of international crime, even as against third parties who have not consented to the jurisdiction of the court and its chamber, and who are not cooperative. There may be little hope of ever bringing a head of state or other person charged with a crime against the peace and security of mankind before the court itself for trial. But there is no reason not to inquire into charges brought against him and determining whether to officially file an accusation for possible trial thereunder, just in case the party ulti-mately were to consent or become available. Article 33 of the existing U. N. Draft Statute provides for such a "Committing Chamber," but does not sufficiently cater to the potential use of such a chamber as a possible terminal point of an international criminal proceeding. It would require the power to hold its inquiry publicly and to release its report and accusation publicly, thus subjecting the defendant to the spotlight of world opinion, the coercive psychological pressure of a respected juridical organ of organized mankind.
11 "A plea of guilty admits ail the facts charged in the indictment or infor-mation ... and no other proof on the part of the government is necessary for a conviction." 2 Orfield, Criminal Procedure Under the Federal Rules 113 (196f3).
12 The indicting chamber of the Court of Appeals (chambre d'accusation, French Code Crim. Proc. Arts. 191-230) has exclusive jurisdiction to order the trial of felonies. Once the case has been submitted, four courses are open to the chamber:
(1) The case may be returned for further actions, if necessary (Art. 201).
(2) The chamber may deem the case inappropriate for submission to trial, because of the nature of the offense or for evidentiary reasons (Art. 212).
(3) The chamber may remand the case if the facts of the case constitute a misdemeanor or violation, but not a felony (Art. 213).
(4) The chamber may deem the facts charged to warrant a trial for felony and pronounce an indictment for trial in the felony court (Art. 214).
Proceedings of the indictment chamber may be largely ex parte, with the right to file briefs. "The indicting chamber may order the persona! appearance of the parties as well as the production of the evidence." French Code Crim.
Proc., op. cit., Art. 199.
INTERNATIONAL CRIMINAL JUSTICE 113 I t might be asked how such a commitment chamber would differ from existing institutions in which charges of aggression are aired and condemnatory resolutions are voted upon, e.g., the U. N. General Assembly or the Security Council. The answer is threefold: (1) The proceedings in the political organ of the United Nations are truly political, the charges are loose, the debates are heated and emotional, and the proceedings are formless. 13 In the envisaged Committing Chamber, the proceedings would be formai and strictly regulated by rules of procedure. Factual allegations would have to be substantiated instantly before they could be inserted into any accusatory document.
The personnel of the Chamber would be composed of jurists of highest ability, achievement and respect, whether they be committing magistrates, prosecutors or-when appearing-defense counsel. The clifference between the U. N. General Assembly with its political charges on the one hand, and the Committing Chamber of an Inter-national Criminal Court, on the other, would indeed be the difference between the parliament of France, or the Congress of the United States, on the one hand, and the chambre d'accusation, or a pre-trial hearing in a U. S. Federal Court, on the other.
Why do 1 expect proceedings before such a committing chamber, with release of a well-documented accusation, to be effective, even though there be Iittle or no chance of an ultimate trial before the International Criminal Court itself,-usually for want of an appear-ance?
The experience in enforcing the European Declaration of Human Rights, 1 believe, has taught us this lesson: The European scheme envisages trial before the European Court of Human Rights in any dispute involving a charge of violation of one of the provisions of the Declaration by a member nation. Prior to submission of the com-plaint to the Court itself, it is tested for sufficiency before the Euro-pean Commission of Human Rights-a veritable parallel to a chambre d'accusation or Committing Chamber. While only a consenting nation could be cited before the court, experience has taught that the pressure generated before the Commission has generally been sufficient to bring the matter to successful termination. No nation relishes the thought of being adjudicated as violating the European Declaration of Human Rights. Thus, actually existing shortcomings in national systems of justice have usually been corrected when the spotlight of 1s Compare Pollack, The Individual's Rights and International Organization 26 (1966).
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a proceeding before the Commission was turned on them, so that adjudication was not necessary. If the Commission declares an appli-cation wholly or partially admissible, a sub-commission is usually set up in order to fully ascertain the facts and attempt to reach a solution as between the parties. H
The experience with orderly procedure, diligent and unbiased fact finding, 15 and use of the concentrated power of publicity, especially when representing world-opinion, has been encouraging in many differing settings, apart from the experience of the Council of Europe.
The International Labor Organization has effectively used its power to report infringements of the right of freedom of association. 16 Allegations of violations of various provisions of the U niversal Decla-ration of Human Rights may be addressed to organs of the United Nations, which have their own fact-finding apparatus, and which use the power of international public opinion 17 in efforts of terminating abuses. 18 While these precedents lack the precision, neutrality and orderliness of a judicial inquiry, they nevertheless go far to demon-strate my point. Judge Golt of Canada recently put the point well
14 In the event of the Commission accepting a petition referred to it, it under-takes together with the representatives of the parties an examination of the petition and, if need be, an investigation, with a view to ascertain the facts.
It also places itself at the disposai of the parties concerned with a view to securing a friendly settlement of the case. (Article 28 of the Convention).
The Commission performs these functions by means of a sub-commission consisting of seven members of the Commission. Each of the parties concerned may appoint as members of the sub-commission a person of its choice. The remaining are chosen by lot (Art. 29).
6 Yearbook of the European Convention on Human Rights 48 (1951).
15 On the significance of orderly fact finding for the prevention of potential violations of international criminal law, in connection with nuclear matters, see Finney, Atoms Inspector Puts Men at Ease, N.Y. Times, 2-17-67, p. 11, col. 1.
10 See U.N. ECOSOC E/4305 of March 7, 1967, with a defensive response of the Union of South Africa. In gen. see I.L.O. Const., Arts. 24 et seq. (Inter-national Labor Office, 1954), Gormley, Emerging Protection of Human Rights by the International Labor Organization, 30 Alb. L. ]. 13 (1966).
11 Under the comparable procedure of the I.L.O., upon failure of satisfactory reply by the government against which the complaint had been admitted, the
"representations" may be published by the I.L.O. Arts. 24-25, Constit. I.L.O.
See Pollack, op. cil., 34.
18 While the Draft Covenant on Political and Civil Rights remains without effect, in the sphere of the political rights of women or freedom from racial discrimination, considerable progress has been made in recent years. Pollack, op. cil., 17-33.
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when he said: "Far from taking advantage of the absence of any coercive method of enforcing obedience to the principles of inter-national law, states actually compete with each other in asserting their strict fidelity to such principles .... [ P] ublic opinion of the civi-lized world plays in an ever increasing degree the part of a sanc-tioning authority." rn
But publicity and shaming a national pride are not the only pur-poses and justified expectations for a Committing Chamber. If com-pliance is not brought about, an indictment against a head of state or other powerful figure may indeed be handed down. A summons or warrant of arrest could be issued, which any nation that had signed
But publicity and shaming a national pride are not the only pur-poses and justified expectations for a Committing Chamber. If com-pliance is not brought about, an indictment against a head of state or other powerful figure may indeed be handed down. A summons or warrant of arrest could be issued, which any nation that had signed