Theodor Meron: Thank you, Tom, very much for inviting me to this important conference. Your work in the human rights area has made such a tremendous contribution to the values that this conference is trying to promote.
And I am happy to appear on the same panel with Professor Diane Orentlicher, whose article in the Yale Law Journal is still one of the seminal studies on crimes against humanity.
I have been asked to make some comments about crimes against humanity and the ICC statute. But, I would like to say first a few words about the majority decisions in the House of Lords, on the Pinochet case.
There is no question that the three majority decisions helped bring British law closer to international legal norms, those norms that are contained in the statutes of the Nuremberg Charter and in the statutes of the tribunals for Rwanda, Yugoslavia and in the statute of Rome. However, it would be a mistake to think that those three decisions aligned British law entirely with those international rules - i.e., the rules contained in the statutes that I have mentioned. The Statute for Rome, for example, denies immunity also for a serving head of state.
The Lords’ decisions limit the deprivation of immunity to cases pertaining to former heads of state. And it is only because Pinochet is not a serving head of state that the Lords were ready to deny his sovereign immunity. The conclusion is that the British law on this subject is not yet aligned with those international rules that are contained in the statutes which I have mentioned.
Diane also asked a broader question about the Pinochet case in the context of the ICC And it is this question to which I would like now to turn.
Would the International Criminal Court if already in place have jurisdiction over Pinochet? Of course, the provisions of the statute excluding retroactivity would make the court incompetent with regard to Pinochet. But what about a future Pinochet committing similar offenses in a future Chile, after the court’s entry into effect, so no problems of retroactivity would arise?
Crimes against humanity within the jurisdiction of the ICC are clearly broad enough to catch Pinochet in their net. The elimination of any nexus with armed conflict is critical in this regard. However there is an unfortunate disconnect in this statute between the enlightened provisions on crimes and thresholds for the applicability of crimes on the one hand and personal jurisdiction. By providing that the ICC is to have jurisdiction only when it is accepted by the state where the crimes have been committed, (the state of territoriality) or by the national state of the accused, the Treaty of Rome lets off a future Pinochet or Pol Pot who kill or murder or commit atrocities of their own people on their own territory. Assuming, of course -- and this is my pessimistic, but, I believe, realistic assumption -- that Pinochet’s country would not accept the court’s jurisdiction.
Let me illustrate what this means. It means that until Hitler invaded Poland and other countries and started killing their populations of other countries, and assuming the existence of the ICC with Germany as a non-party state, he would not come within the jurisdiction of the ICC. Who would doubt that Germany would not have become a party to the statute? Even for a party to the statute complementarity could preempt the ICC’s jurisdiction.
The Security Council of the United Nations may, acting under Chapter Seven of the UN charter, preempt any need for national consent. But no one can take the Security Council for granted.
Pinochet could still be tried by a national court either in his own country or in a foreign country, but not by the ICC. Unfortunately, the ICC is not crafted to obtain jurisdiction over tyrants who massacre their own people on their own territories. And this is the number one humanitarian law issue of our time. We do not have many international wars. The ICC is designed to deal with foreign invasions and atrocities committed by troops of one country on the territory of another country. But this is not the principal humanitarian problem of our time.
In a recent Washington Post op-ed, I have therefore considered the possibility of expanding the court’s jurisdiction, specifically with regard to atrocities committed by a government of a country in the territory of that country against the citizens or residents of that country. And at the same time, I suggested that we seek ways to obtain the support of the United States for the treaty. Without the effective power of the United States a nascent international institution such as the ICC, would not have the necessary muscle, the necessary power to be truly effective in the cruel world where it has to make an impact.
By making these comments, I would not like to detract one iota from the historic importance of the Rome statute. And although it is still too early to assess the effectiveness of the future court, it is already clear that the articles on crimes, including crimes against humanity, which have been included in the statute, will soon take a life of their own as an authoritative and to a large extent customary statement of international humanitarian law, and may in due course become a model for national laws to be enforced under the principles of universal jurisdiction. In terms of substantive humanitarian law, these are the most important articles of the ICC statute. They will have an influence on the practice of states and on the doctrine of international law, even prior to the entry into effect of this statute.
Let me say something more about those provisions, starting from the crime of genocide. Here the relevant article of the ICC statute repeats verbatim one of the articles of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted, as you know, on December 9, 1948, fifty years ago. There is no change. There is no development. The Rome Conference felt that genocide being widely and in effect universally recognized as customary law, should not be tampered with. We should leave it as it is; and we have not modified that.
The article of the statute on crimes against humanity is quite different in the sense that here we have the first multilateral treaty statement of crimes against humanity. It is accompanied by the definition of principal offenses. The chapeau of crimes against humanity mentions no nexus to any situation of armed conflict, international or internal in character. The statute thus confirms that crimes against humanity can be committed in peacetime just as they can be committed in wartime. Let me add that the United States delegation played an extremely important role in Rome in resisting very strong pressures to limit crimes against humanity to wartime situations.
A point of interest to human rights lawyers. Crimes against humanity under the Rome statute, as well as some of the war crimes listed in the statute, overlap with some fundamental violations of international human rights. This is true, for example, for violations listed, or norms listed in Common Article 3 to the Geneva Conventions. In a way, these fundamental violations of international human rights become criminalized under the Rome statute. And this is a very important development.
The chapeau to the crimes against humanity, again, does not require proof of discrimination against the targeted civilian population. The statute makes discriminatory intent pertinent only to the offense of persecution. This is a welcome and deliberate departure from the 1997 decision of The Hague Tribunal for the former Yugoslavia, which made all crimes against humanity subject to proof of discriminatory intent. Instead, returning to the Nuremberg model, the ICC statute makes discriminatory intent pertinent only to the offense of persecution.
The ICC statute expands in a very important way the offense of persecution, as it previously existed in the Nuremberg statute. The Nuremberg statute mentioned persecution on political, racial or religious grounds. The ICC statute adds additional important grounds motivating persecution: national, ethnic, cultural, religious and gender grounds, and opens the door even to additional unspecified grounds, provided that these are universally recognized as impermissible under international law. This is not an easy test, but not an impossible test to meet.
A word about the requirement of the statute with regard to attacks against civilian populations in the definition of crimes against humanity. This definition does not include attacks carried out solely against armed forces; only attacks against primarily civilian population are encompassed. Armed forces are protected against violations of international law in other ways, by the provisions on war crimes and perhaps also by the provision of the statute with regard to genocide.
The chapeau adheres to the disjunctive approach: widespread or systematic attack; you need not have a widespread and systematic attack, in this respect the Statute followed the Hague Tribunal. This disjunctiveness of the Rome statute is balanced by a certain definition of attack directed against civilian population, which is defined as a course of conduct involving the multiple commission of certain acts.
I do not regard this definition of attack as raising the threshold for crimes against humanity, because it has always been unlikely that acts not involving multiple crimes would be tried by the ICC or by other tribunals as crimes against humanity in the first place.
The definition of attack further recognizes that crimes against humanity - and this is in contrast to the doctrine prevailing during the second World War -- can be committed not only by states, but also by organizations having control over people, over an area, and so on. This means -- and this is so important in the present world where we see so many non-governmental, non-state actors, active in the field -- that rebels, guerrillas, and perhaps also terrorists can commit and be criminally liable for crimes against humanity.
The chapeau is followed by enumeration of eleven offenses, many more than in Nuremberg. So, we are building on, but significantly adding to the International law of Nuremberg. These offenses - or some of them - are defined specifically in separate articles. The definitions themselves, having been adopted as part of an important multilateral treaty, make an important contribution and represent an advance in international law.
The additions to Nuremberg, briefly, are forcible transfers of population, not only deportations, imprisonment and other severe deprivations of personal liberty in violation of fundamental rules of international law, torture, rape, sexual slavery and forced prostitution, forced pregnancy and forced sterilization, or any form of sexual violation of comparable gravity, and forced disappearances of persons in apartheid. The offenses defined are extermination, enslavement, deportation, transfer, torture, forced pregnancy, persecution, apartheid and disappearance of persons. I will not bore you with these definitions, but I would like to mention one or two of them, which I think important.
In the first place, I would like to emphasize that the definition of enslavement includes the exercise of power attaching to ownership over persons in the course of trafficking in persons, in particular women and children. This provision further demonstrates the importance attached by the diplomatic conference in Rome to offenses against women.
There is surely a sea change that has occurred in the perspective of the international community on violations of women’s autonomy and dignity. Let us remember, that despite the fact that the Nazis used rape as an instrument of very widespread and continuing policy, there was not a single prosecution in Nuremberg, not a single one, which dealt with rape. Now, all the sections of the Rome statute on all of the crimes, not only crimes against humanity, but on war crimes, grave breaches, war crimes for international wars, war crimes for non-international armed conflicts, all of them give offenses against women a pride of place. And this is a very important development.
I turn to the definition of torture. It is not -- and this is also an important development -- not limited to acts committed by or at the instigation of the state or with the acquiescence of the state or a public official acting in an official capacity. This, as you know, in fact the law under the 1984 United Nations Convention against Torture, limiting torture to official acts. In the ICC statute the offense of torture is not limited to governmental actors.
Forced pregnancy is defined as an unlawful confinement of a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.
Finally, the definition of disappearances, an extremely important problem, also, in the context of the Pinochet case. The definition elaborates and follows upon earlier United Nations definitions of disappearance. It describes disappearance as the arrest, detention or abduction of persons by or with the authorization, support or acquiescence of a state or a political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or the whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
In concluding, let me say that I believe that international justice will not be vindicated by having only an international jurisdiction or only national jurisdictions. We need both. An international criminal court, whether in The Hague or in Arusha or the future I.C.C. will never be able to try as many offenders as we would wish them to try, even where it would have the required competence.
I therefore do not share the unhappiness expressed by some of my friends in the human rights community with regard to the principle of complementarity in the statute of Rome. In order to have an effective system of international justice states must have a primary role and carry out the responsibility, which for so many years they have in fact failed to carry out. The problem with national jurisdictions is that while they have a tremendous potential for prosecution of offenders, states have been reluctant to prosecute offenders for crimes committed in foreign countries, even in cases where the principle of universality of jurisdiction justified such prosecutions.
It seems to me reasonable to expect that the adoption of the Rome statute together with the elaboration and the definition of crimes which have been incorporated in the statute of Rome, has already had and is going to have a beneficial effect on triggering national prosecutions of offenders against international law and crimes against humanity. And I believe that this is one of the lessons that we can already draw from the desire of Spain and the United Kingdom to deal with the case of Pinochet.
The definition of crimes is now in place. We have a good definition, a credible definition of crimes against humanity, which has, I believe, commanded a consensus in Rome. It is up to the states now, up to the international community to make those definitions and those crimes effective; to punish violators and to deter future crimes through both national prosecutions and through prosecutions before the future I.C.C.