Vol. 16 No.1 (January 2006), pp.38-41

 

PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY AND THE INTERNATIONAL CRIMINAL REGIME, by Robert Cryer. Cambridge: Cambridge University Press, 2005.  392pp.  Hardback. £60.00/$110.00. ISBN: 0512824745.  Also available in Adobe eBook format.  $88.00. ISBN: 0511113811.

 

Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington.  Email: csegal [at] gmail.com

 

International law practitioners are the primary audience for Robert Cryer’s PROSECUTING INTERNATIONAL CRIMES.  Case law citations are scant, and its use is probably limited to research projects.  Political scientists whose area of expertise is Eastern Europe or Africa will find a plethora of useful data about the prosecution of crimes committed in Rwanda and the former Yugoslavia. The account of problems involved with international criminal law and its prosecution is well-written and exceptionally detailed.

 

Cryer explores the establishment of the adjudicatory tribunals set up to address crimes committed by regimes in Rwanda and the former Yugoslavia and how jurisdiction was  recognized under existing treaties dealing with these international criminal violations. He extensively traces the history of international criminal prosecution and justice.

 

International crime, loosely defined, finds its roots in the 5th and 6th centuries BCE when empires acted upon the premise that there should be restraint on warfare. Whether one could truly classify the actions taken under this general rubric as international law is open to scholarly debate.

 

A papyrus that dates to c.1000 BCE involves a dispute “over the authority to prosecute actions by foreigners on a foreign ship” (p.11).  Disciples of Confucius spoke of criminality in relation to unjust wars. The Greeks would “prosecute” and then execute Spartans for violations of the Greek law of war. In Ancient India, a process that might today be considered a trial was used to find those who violated the rules to be outcasts and to strip them of privileges (p.12).

 

By the 6th century, Romans had promulgated Articles of War that included punishment for violations. The Koran contains a restraint on waging war with commanders, and in the Christian world, there were also penitential books and decrees as early as the 9th century CE.

 

Decrees were issued after the Battle of Soissons and Hastings that applied to both sides, thus initiating a form of “victor’s justice,” which, to a degree, continues today.

 

In the 14th century one finds an analogy to modern international criminal law in “the enforcement of the laws of war through the laws of arms, or jus militare.” In 1872 the first of many scholars, Gustav Moynier, proposed an international criminal court, based [*39] upon the still prevalent belief that national judges might not be independent or impartial. The proposed statute, which was never ratified, raised the still unanswered question of who defines relevant law.

 

Commissions were mandated after World War I to investigate responsibility for starting the war. Among the early proposals was the notion of an Allied High Tribunal, but eventually a compromise was reached: Germany would try suspects nationally in Leipzig. Two “famous” trials did take place in 1922. The legacy of Leipzig, according to Cryer, is “the fear that a State is unlikely to engage in active prosecution of its own nationals before its own courts, and that therefore international supervision or proceedings are needed, or prosecution before another State’s courts” (p.35) must occur.

 

The Moscow Declaration of 1943 was preceded by a United Nations War Crimes Commission to investigate war crimes and advise on procedural rules for punishment. Out of this would evolve the Nuremberg International Military Tribunal (IMT), and the trials that followed represent the first practice of modern international law.

 

The genocides in Rwanda and the former Yugoslavia prompted the United Nations to take action to bring those responsible to trial. The International Criminal Tribunal for the Former Yugoslavia and, shortly thereafter, the International Criminal Tribunal for Rwanda were established, each with unique features.

 

The genesis of the International Criminal Court was a request from a coalition of sixteen Caribbean and Latin American nations to enforce national laws based on the 1988 Vienna Convention Against the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (p.57). These nations were seeking an independent forum as a means to address these crimes, in light of the significant challenges to their own judicial systems presented by the power and influence of rich drug barons.

 

Cryer observes that selective enforcement has been and remains a problem, as does the cloud of “victor’s justice.” Although there has been a movement towards international enforcement, Cryer notes that “there is a risk of losing substantive justice when we revert to individual States because often it becomes contingent on the willingness of States to fulfil (sp), among other things, their international obligation to punish international crimes” (p.73).

 

Two issues must be addressed: the inherent right to assert territorial jurisdiction that remains with a sovereign nation and the appropriateness of prosecuting a crime in the place, or near the place, where it occurred. Both present dilemmas. The former Yugoslavian and Rwandan tribunals addressed these issues differently, and the experiences of both are reflected in the Rome Statute.

 

The Rome Statute, adopted in 2002, attempts to address the multitude of problems that arise in the prosecution of international crimes. The Statute [*40] recognized many unresolved problems and created a “full-fledged regime of international criminal law enforcement” (p.143), involving both national courts and the ICC itself. In addition to the formulation of substantive rules, appropriate reactions to violations are also covered. Procedures for the Prosecutor, in addition to rules for national courts, were also established.

 

After the treaty establishing the International Criminal Court was drafted, another unresolved issue arose: the right of a nation to try its own accused citizens.  Indeed, this is the primary reason why the United States has not signed the treaty.

 

A major unavoidable failure is that the ICC is a treaty-based court, with the obvious problem that decisions cannot be imposed on non-signatories. Cryer points out that one solution would involve having the Statute ratified as part of the UN Charter; alternatively the Security Council might impose duties upon all member nations. Without the occurrence of one or the other, the States subject to duties may well remain fewer than those subject under the UN Tribunals’ Statutes.

 

Quoting Mahnoush Arsanjani (p.145), Cryer explains that the ICC was not intended to replace national courts but rather to act when a national court does not do so. Thus a balancing of interest occurs that accepts criminal law as falling under the sovereignty of a State but seeks prosecution of international crime in the absence of the State’s action. The result is a mixture of deference to national jurisdiction, with challenges being an ongoing possibility. The ICC may not assume jurisdiction in a case unless the State is unable or unwilling to undertake the prosecution.

 

The statute enumerates the meaning of a State’s unwillingness or inability to prosecute. In reality taking over jurisdiction from a State presents many hurdles, some of which may be insurmountable. State co-operation is necessary to enable a successful prosecution.  Common law States will still seek the establishment of a prima facie case before extradition, and Civil law States present system-specific prohibitions on surrendering nationals.  In addition, evidence gathering, questioning of suspects, appearance of witnesses, subpoenaing and assessing documents, and selective enforcement, represent but a few of the multitude of challenges.

 

In his exploration, Cryer illustrates a primary difficulty the international tribunal faces: “when an enforcement agency or officer has discretional power to do nothing about a case in which enforcement would be clearly justified, the result is a power of selective enforcement. Such power goes to selection of parties against whom the law is enforced. Selective enforcement may also mean selection of the law that will be enforced” (p. 233, quoting Kenneth Kulp Davis).

 

The Rome Statute attempts to deal with this issue by defining crimes, in many instances,  “narrower than customary international law permits, or in some cases requires” (p 287). Only in the instance of “persecutive” crimes against [*41] humanity does the Statute clearly establish what the law is. Rather than allow development of law by interpretation, the idea is to have the court “concern itself with those atrocities which are universally recognized as wrongful and condemned” (p.237).

 

Comparative criminal law has long recognized that each society defines crime according its own standards and values. The term “terrorist” provides an example of the complexity. The thesaurus in Microsoft Word 2003 lists radical, fanatic, activist, revolutionary, and rebel as synonyms. But by 2006 the international community appears to have agreed that the term should apply to those who indiscriminately target civilians and whose acts are understood to be “against humanity.”

 

The effectiveness of the ICC remains to be determined and may well be hampered by having fewer than half the members of the United Nations as signatories. But the fact that such a tribunal was established is in itself a major accomplishment and hopefully has brought the world community closer to prosecuting international crime, although a number of obstacles remain.

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© Copyright 2006 by the author, Caryl Lynn Segal.